Ironic? Federal Government Opposes Effort to Obtain Evidence from Facebook.

One of the endearing qualities of many government lawyers is a total lack of irony.

The Atlanta Journal-Constitution reports that federal prosecutors have opposed the efforts of a criminal defendant in a sexual assault case from obtaining information from the victim’s Facebook page. 

The defendant claims that the woman’s Facebook account contains information that could be helpful to the defense.  The federal prosecutor opposed the subpoena served “calling it a fishing expedition and an invasion of the woman's privacy.”

I have no opinion about this particular issue without knowing whether the information sought is relevant to the case, or a violation crime victim rights and rape shield laws.  However, I have noted elsewhere that the federal government likes to obtain information from Facebook about defendants.  So, perhaps it is strange to see the government arguing the other way in this case.

Limewire Verdict Could Hinder Innovation

The founder of Limewire admitted that his service likely violated copyright law.

Or so say the headlines.  But in reality all he did was say that he took a position in an area of where the law was not completely clear.  He said:  "I didn't think our behavior was inducing [copyright infringement]. I understand that a court has found otherwise."

This came up in a copyright case brought against Lime Wire by the Recording Industry Association of America. 

A large verdict in favor of the RIAA could have some very serious chilling effects on innovation.  The application of law to emerging technology is always unsure.  This doesn’t mean that innovators and entrepreneurs should not be able to take risks.  Rather, people reasonably should continue to push the envelope of legal limits.  If they are wrong, they should stop.  But forcing them to pay large judgments serves no legitimate purpose.

Florida Courts Expresses Skeptcism of Searching Cell Phones Incident to Arrest. But Allows The Search Anyway!

A Florida District Court of Appeals has questioned the existing Supreme Court doctrine which allows searches of cell phones incident to arrest.  This issue has been getting a of of attention recently (especially from me).

The case is Wood v. Florida.

In this case, the police found incriminating evidnce on the defendant’s cell phone after he was arrested  But for the arrest, the police would have had no justification to search the cell phone. 

The court believed that it was bound by the Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), in which the Court held containers – in this case, a coigarette package, found upon a person incident to arrest may be searched: 

We recognize that . . . many of the federal and state courts that have addressed this issue have found whether or not a cell phone may be searched incident to arrest is contingent upon whether or not a cell phone is a "container" as contemplated by Robinson . . .[ W]hether or not a cell phone is properly characterized as a traditional "container" is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee's immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones.

The court clearly was not comfortable with this conclusion:

While we feel we are bound by the Supreme Court precedent, we recognize appellant's concern that cell phones contain a vast amount of personal information. However, courts have found the broad language in Robinson permits searches incident to arrest of wallets, purses, date books, and other similar items that contain the same types of personal information stored on a cell phone. . . .   However, we express great concern in permitting the officer to search appellant's cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence. The bright-line rule established by Robinson may have been prudent at the time, given the finite amount of personal information an arrestee could carry on his or her person or within his or her reach. However, the Robinson court could not have contemplated the nearly infinite wealth of personal information cell phones and other similar electronic devices can hold. Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one's personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone's physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one's personal life available for perusing by an officer every time someone is arrested for any offense. It seems this result could not have been contemplated or intended by the Robinson court.  We would also note that the rationale related to text messages and phone call logs concerning automatic deletion is not applicable here because there was no argument or evidence presented that photographs are subject to automatic deletion.

In light of theses concerns, the court certified the following question to be one of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE'S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

I am not familiar with Florida appellate practice – can someone with experience explain the practical significance of this question.

Seventh Circuit Rejects Argument That Police Need Warrant For GPS

The Seventh Circuit stated that use of GPS devices by law enforcement is a “Fourth Amendment frontier.”  The court then rejected a claim that a warrant is required before the police may place a GPS device on a car.  The case is U.S. v. Cuevas-Perez.

In this case, federal and state law enforcement officers suspected that the defendant was involved in a drug distribution operation. As part of the investigation, they attached a GPS tracking unit to the defendant’s Jeep. 

The most notable aspect of the decision is the court’s rejection of the argument that GPS devices are “different and more intrusive than those addressed in prior [Supreme Court] cases.”  The court said, “we do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads. The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.” 

I have previously argued that the Supreme Court’s cases were inapplicable because they were based on old technology.  The concurring judge was more explicit in rejecting this argument:  “Make no mistake, concerns over privacy in the information era may make it appropriate to reconsider the principles used for determining whether law enforcement activity constitutes a search within the Fourth Amendment's meaning. The dissenting opinion cogently makes the point. For now, however, the path for lower courts is clear: the holding of Knotts [the old Supreme Court decision] governs GPS monitoring. The practice of using these devices to monitor movements on public roads falls squarely within the Court's consistent teaching that people do not have a legitimate expectation of privacy in that which they reveal to third parties or leave open to view by others.” 

Judge Wood, dissenting, argues:  “Prolonged GPS surveillance, like a surreptitious wiretap, intrudes upon an individual's reasonable expectation of privacy by revealing information about her daily trajectory and patterns that would, as a practical matter, remain private without the aid of technology. This sort of constant monitoring at a personal level gives rise to precisely the "dragnet" effect the Supreme Court identified in Knotts . . .” 

An excellently written decision on both sides.  I highly recommend that anyone interested in this issue read the whole thing.

More: If I am arrested and the police can search my phone, do I have to provide the password.

One of the recurring questions I receive involves passwords for cell phones.  The question is:  if I am arrested and the police can search my phone, do I have to provide the password.  I answered the question very briefly on the EDD Blog.


Professor Gershowitz at the University of Houston has written a detailed law review article on this very subject:   “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine? 96 Iowa L. Rev. 1125 (2011).  The online version is here.  In the article he writes that the police "may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation."


Professor Gershowitz is an early expert on the legal implication of smartphones.  His article is worth a read.

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ttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669403

Dropbox Makes Files Available To Law Enforcement. Is a Warrant Needed?

While up late with the baby one night recently, I came across a discussion on Dropbox providing information to law enforcement. 

The claim is:

"As set forth in our privacy policy, and in compliance with United States law, Dropbox cooperates with United States law enforcement when it receives valid legal process, which may require Dropbox to provide the contents of your private Dropbox," . Furthermore: "In these cases, Dropbox will remove Dropbox's encryption from the files before providing them to law enforcement." 

The unanswered question is what type of valid legal process is required.  One possibility is that Dropbox will provide files in response to a subpoena, which the government can easily issue in most investigations.  The other possibility is that Dropbox would require a warrant before providing the information.

Whether a warrant is needed turns on whether there is a reasonable expectation of privacy in files stored on Dropbox.  On the one hand, by uploading files on Dropbox, people are taking a risk that the files may be disclosed.  This is because the user is voluntarily providing the files to a third party.  On the other hand, by encrypting the files and requiring a password to access some of them, users may have a much greater expectation of privacy than in files that are made publicly available.

As noted here, some courts have held that the government must obtain a warrant before accessing emails stored by third parties.  The question for some court will be whether this rule applies to services like Dropbox.

Did You Remember To Welcome Our New Computer Overlords?

My wife reminded me that I forgot to pay special attention to April 19, 2011.

On this date, Skynet was implemented.  Of course, the attack against humanity doesn’t occur for a few days.   Huffington Post has more info here.

Skynet, from Terminator lore, was a defense department computer system.  Apparently, it becomes self-aware and objects to the efforts of humans to disconnect it.  Nuclear war, death, destruction, and human enslavement follow. 

What lesson can be learned for those of us who care about privacy rights and government action:  it could always be worse!

The Atlantic Asks: Is it the Size of the Device, or How You Use It?

I apologize for the bad taste of the title of this post.  But I couldn't resist.

The Atlantic published a nice article about cell phone searches.  From a legal standpoint, no new ground is covered.

However, the author suggests a new philosophical approach to how we look at cell phones – whether as traditional containers or something different:

What's really at issue here is whether it's the size of the digital device that matters or the amount of information it contains. It's a classic case where if you think about it in terms of the atoms -- the stuff -- you get one answer but if you think about it in terms of bits you get another. The phone is small, so it is easy to have it "immediately associated" with you. But the information it contains is vast and wide-reaching and valuable.

The battle points out just how tuned our laws are to our bodies. Remember the wingspan rule or the plain view doctrine, which presupposes a certain resolution for your eyes? These things only make sense in the world of atoms. And we don't yet have new rules for that other, constantly growing world of bits.

The best way to look at this, I suggest, is to acknowledge that courts are struggling with when the difference in degree becomes a difference in kind.  The key question is whether the aggregation of personal data found on modern cell phones makes them somehow distinct from traditional boxes of papers or file drawers.

New Law Technology Article: When Can Police Search Cell Phones?

In Law Technology News:  Courts Struggle With Searches of Smartphones.

Apple Denies Tracking Users. Promises Changes.

According to news reports, Apple denies that it is tracking the location of iPhone users. Apple posted a release on the issue.

I am working on a longer piece on the implications of the revelation that iPhones store location information.

It is still hard to tell exactly what is going on, or why this was done.

Apple denies that it was tracking users. OK. Probably true. But this does not change the more important fact that the iPhone was storing the data for a long time, and that the data allowed anyone with access to determine the past location of users.

An Expert on Smell. Really.

Every now and then I am reminded about how much fun being a lawyer can be.


This is a bit off the technology beat, but is worth a mention.  Fourthamendment.com has a link to a case from Alaska where the defense successfully challenged a search warrant.  Read it here.


In this case, the defense called an expert on smell and taste.  The expert wrote a book titled, The Handbook of Olfaction and Gustation.


What a great  answer the attorneys in that case had to the question:  "anything interesting happen at work today?"

Life Is Better With All This Technology.

The Forbes technology blog channels Andy Rooney.  “Life was better before we had all of this technology,” he said every week on 60 Minutes.

In this case, a former paralegal is nostaligic for the days when Supreme Court briefs had to be set at an old-fashioned printer.  He describes it as one of his “great joys.”

Yes, life was better back then.  Except it wasn’t. 

The physical process of having briefs printed no longer involves hours at the printers setting and resetting type and getting covered with ink.  But more importantly, the modern process is both superior in its ability to allow last minute substantive changes and edits, and cheaper.  The costs of lawyers and paralegals spending hours at a printer, not to mention the cost of the type itself, must have been so astronomical that only the most deep pocketed clients could afford the service.

This story illustrates how technology – but reducing costs and enabling lawyers to spend time on substantive work – has improved the world. 

Federal Government Is Using Search Warrants to Obtain Facebook Data -- Why This Is Good News

The federal Government has started to obtain search warrants to access the Facebook accounts of suspected criminals.  According to news reports, the Federal Government has sought a “few dozen search warrants for Facebook accounts nationwide since May 2009.”

One criminal was quoted saying, “To be honest with you, it bothers me.”

The reports include the predictable concerns about constitutional and evidentiary issues.  What is unclear is how often Facebook and other similar sites receive requests for information, and how it responds to those requests that do not rely upon a search warrant.

Nonetheless, this report is good news.  The battle over privacy rights, the Internet, and emerging technology is not so much a battle about information that is obtained, but how the government is able to access that information.  The reports that the government is seeking search warrants rather than obtaining the information without any judicial oversight is evidence that courts and the government are recognizing the significant and reasonable privacy interest in this data.

iPhones Track Location -- What Are The Fourth Amendment Implications?

News reports from England suggest that iPhones and iPads keep track of where users go.  The information is kept on a file that is backed up on the user’s computer.

The file created by the iPhone apparently contains the latitude and longitude of the phone's recorded coordinates along with a timestamp.

Obviously, this is a huge threat to privacy -- anyone who accessed the iPhone or the computer it syncs to, whether through theft, snooping, or otherwise, could discover details about the owner's movements.

So what are the Fourth Amendment implications of this?  A couple come quickly to mind.

First, if law enforcement is able to access an iPhone legally – whether as a result of an arrest of the owner or if the phone is abandoned – then current law in most locations would allow the police to access this data.

Second, law enforcement may argue that it can access this information anytime without a warrant.  This argument is based on the same justification for putting a GPS on a person’s car without a warrant:  a person has no expectation of privacy wherever they can be seen by the public.

I will post more on this later.

Ohio Court Rules That Officer Cannot Answer A Suspect's Cell Phone

An Ohio Court has held that the police may not use a suspect’s cell hone after an arrest.

The case is State v. Todd.

In this case, the defendant was observed by police walking near the report of a possible burglary.  The 911 caller stated that he "just didn't fit the area."

The suspect put his hands into his pockets while talking with the police.  The officers asked if he had any weapons.  The defendant put his hands into his front pocket and pulled out two cell phones, a digital camera, some foreign coins, and jewelry.

When questioned about the phones, the defendant stated that he had purchased one of the cell phones the night before and that he had not had time to delete the stored numbers on the phone.  The officer dialed the last number on one of the phones.  No one answered.  However, a few moments later the phone rang and the officer answered.  The caller indicated that the phone belonged to the defendant. 

The officer placed the defendant under arrest and found a number of stolen credit cards in his pockets.  During an interview, the defendant admitted to committing a burglary and receiving stolen property. 

The defendant’s conviction was reversed.  The court held that a protective patdown for weapons may have been permitted; requiring the defendant to empty his pockets violated the constitution.  However, the search may have been justified because there was probable cause to arrest the defendant for trespassing.  Thus, the officer was permitted to search the defendant incident to an arrest retrieve the cell phone.

But that is not the end of the analysis.  The actions of the officer in searching the phone by dialing the last number and then answering the phone when it rang is not permitted.  This search exceeds what is permissible under a search incident to arrest, according to the Ohio Supreme Court. 

Juror Texting During Trial -- Not Enough for a Mistrial!

A Kansas court reviewed the implications of jurors texting during a trial.

The case is State v. Mitchell.

The defendant was on trial for aggravated burglary.

During the trial, the defendant’s attorney observed one of the jurors slumped down in her seat below the rail in front of the jury box.  He could not see her hands, but presumed that she was texting.  The bailiff stated that the juror was texting during jury selection, and that her focus was down towards her lap during the trial.

The court did not grant a mistrial.  Instead, the judge admonished the jurors collectively to make sure their cell phones were turned off, not just set to vibrate.

The question became whether the juror was communicating with someone outside of the court during the trial.  In this case, because the judge did not question the juror about her actions (and the defendant did not request this), there was not enough evidence of improper communications to declare a mistrial.

The Kansas court did suggest that courts should consider prohibiting access to cell phones during all trial proceedings.  

Cell Phone Is Not (Always) A Criminal Tool

An Ohio court has affirmed that a cell phone, by itself, is not considered a criminal tool – even when possessed by a drug dealer.

The case is State v. Brooks.

The defendant was charged with various drug offenses, including trafficking.  During a traffic stop, the police found “a ‘little baggie of marijuana,’ two cell phones, and $24 in [the defendant’s] left coat pocket.”  Inside his car, the police found 12 individual smaller bags containing single pieces of crack cocaine, all packaged in a larger plastic bag.

The court reversed a conviction on the charge that the cell phone was a “criminal tool” used to support drug trafficking.  The court, citing another recent opionion, said:  “The ubiquitousness of cell phones is such that the mere possession of a cell phone is not ipso facto proof that it was used in drug trafficking.”   

In the future, the prosecution will probably have to introduce cell phone records or text messages that appear to support drug transactions using the phone.

Articles Published

A copy of my article on GPS tracking, COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER-ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES, is now available in the Richmond Journal of Law and the Public Interest here.

A copy of a piece I wrote for the Law Technology News, DOES POLICE USE OF GPS DEVICES NEED SUPREME COURT GUIDANCE? is now available online here.

Virginia Judges Question Whether Extensive GPS Surveillance is Permissible

A panel of a Virginia Court of appeals had an opportunity to rule on the warrantless use of GPS devices.  The Court punted, deciding the case on other grounds.  But one of the judges wrote an interesting concurring opinion.

The case is Foltz v. Commonwealth.

In this case, the defendant was convicted of abduction with intent to defile.   The Defendant challenged the use of evidence obtained through the use of a GPS device placed on his work van.

The defendant, a registered sex offender on probation as a result of prior convictions, including rape, was a suspect in a series of sexual assaults in Northern Virginia.  The sexual assaults appeared to be similar to the crimes committed by the defendant.

His employer provided him with a van which he was permitted to drive to his home.   On February 1, 2008, the officers attached a GPS to the defendant’s work van.  On February 5, 2008, the police determined that the defendant’s van had been in the vicinity of a sexual assault.  They then began traditional surveillance.  The officers observed the defendant start to assault a woman and arrested him.  The defendant was convicted of his crime for this assault.

The court did not reach the GPS issue.  Instead, the court concluded that the officers could legitimately have conducted the traditional surveillance and thus, legally, obtained the visual evidence used to obtain the conviction. 

This decisions appears to be correct.  I won’t bog down the blog with a discussion of “fruits of the tree” doctrine.  Instead, lets move to the interesting discussion that occurred within the concurring opinions.

Two of the judges would have addressed the use of the GPS devices “squarely.”   In their opinion, they note that “The government could potentially abuse this technology in an Orwellian manner by truly invading the private lives of individuals without any constitutional justification.”  However, “the particular facts of this specific case simply do not even raise such concerns.” 

The judges would have allowed the warrantless use of GPS devices in this case because the van was not owned by the defendant.  More significantly, the van “was parked on a public street when the police attached the GPS device to the van.”  The judges reasoned that because the van was visible to the public, the “GPS device . . . did not expose anything that was not already visible and freely accessible to the public.” 

Here is what I think is significant.  The judges did not rely completely on the principal that simply because a van is visible to the public, the use of GPS devices without a warrant is always justified.  Instead, the judges distinguished this case from cases where the police track “the defendant's unrestricted driving of his personal vehicle for a number of weeks.” 

Another Judge addressed these arguments in another concurring opinion.  This judge also noted the distinction between the discrete use of GPS to solve a crime, and the tracking of people.  He wrote:

we are not talking about the “public” events of a single evening, but rather the comprehensive observation or electronic tracking that takes place over a period of days, weeks, or months. While it is reasonable to expect that anyone might witness any one of such a series of public activities or events, it does not follow that one cannot reasonably expect that a particular person or group would not be privy to all of them. Similarly, one might reasonably expect something as intensely personal as their genetic profile to remain private even if such a profile could in principle be extrapolated from residual DNA left upon a glass or fork "abandoned" in a public restaurant. Thus,  . . . private (and thus protected) facts may be extrapolated from the aggregation of individual public events or from a technologically assisted analysis of “public” objects or information.

Hot Topic: Another Note on GPS Tracking.

Another law student has written a Note about GPS tracking.  This article is from the Fordham Law Review.  It was written by Kaitlyn Kerrane and titled:  Note: Keeping Up With Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance.

This Note concludes that “a reasonable expectation of privacy exists in both the installation and monitoring of a GPS unit in light of several considerations: property interests, public exposure, the nature of the police intrusion, and the type and quantity of information obtained.” 

The author notes that in Knotts, the Court did not consider the quantity of information obtained through the use of a tracking device.  In noting that some courts have “disregard[ed] the increased intrusiveness of GPS technology compared to the older beeper technology” the author may be seeking too broad a rule.  It is possible, for example, to use a GPS device to conduct discrete and limited monitoring.  This likely, in my view, does not implicate the Fourth Amendment.  It is only when the law enforcement uses GPS over an extended of time that the privacy interests of the subjects are impacted.