7th Circuit strikes down Indiana statute banning sex offenders from social networking sites

In Doe v. Prosecutor, No. 12-2512 (7th Cir. 2013), the Seventh Circuit held that an Indiana statute banning registered sex offenders from social networking sites violated the First Amendment because it was "not narrowly tailored ... [to] the evil of improper communications to minors." This opinion reverses a district court opinion from last June.

The statute, Indiana Code § 35-42-4-12, prohibited the use of social networking websites, chat room, instant messaging programs if the website allows minors to gain access or use.

In its decision, the Seventh Circuit found that the statute "targets substantially more activity than the evil it seeks to redress." As such and because "Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders," the statute is not narrowly tailored. The court was, however, sure to note that this decision does not alter a court's ability to construct terms of supervised release for sex offenders - including limiting Internet access.

A similar statute, the Californians Against Sexual Exploitation Act, in California was also struck down earlier this year.

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EFF files amicus arguing for passengers to have standing in GPS surveillance cases

The Electronic Frontier Foundation (EFF) has filed an amicus brief before the Massachusetts Supreme Judicial Court in an attempt to persuade the court that passengers should be given standing to challenge the use of GPS data acquired from devices on vehicles.

Before the court are two cases related to GPS surveillance - Commonwealth v. Rousseau and Commonwealth v. Dreslinksi. The court defined the issues as:

whether an affidavit demonstrated sufficient probable cause in support of an application for a warrant secretly to attach a GPS device to a motor vehicle and to monitor tracking information; whether a passenger has standing to challenge the evidence seized as a result of such monitoring; whether a passenger in a vehicle to which a GPS device is attached is either "seized" or "searched" to the same extent as the driver or the vehicle itself.

In its brief, the EFF makes three basic arguments. First, the reasonable expectation of privacy is the same for drivers and passengers. Second, the lack of a possessory interest does not deprive the passenger. Finally, a state law theory gives defendants automatic standing when GPS surveillance is involved.

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Court allows warrantless phone record search during arrest

Under arrest?  Then consider your call logs and phone contacts fair game for police search.

In United States v. Martin, 2012 U.S. Dist. LEXIS 183511 (E.D. Mich. 2012), in denying a motion to suppress evidence, the court held that officers were authorized to search defendant’s phone records during arrest. 

In 2006, a series of drug related investigations culminated in the arrest of the defendant for conspiracy to distribute heroin. During the arrest, officers seized the defendant’s phone. 

The defendant contended that the arresting officers had no right to either answer any of his incoming calls or search his contact list during the arrest.

The defendant argued that he had a privacy interest in his cell phone similar to that found in computers and emails. 

While the court acknowledged the technological similarities between cell phones and computers, the court rejected the notion that the similarity translated to a constitutional bar on phone searches during arrest.

Following the persuasive precedent of other circuits, the court ruled that officers could search defendant’s phone “because there was a risk that if the phone was not immediately searched pursuant to the arrest, the information stored in the contact list or call logs of the phone would be permanently lost.”

In refusing to extend the expectations of privacy usually found in computers and emails to cell phones, the court focused on the absence of contention that the officers searched through emails, messages, saved websites, or documents on the defendant’s phone.

In this age and time, this superficial demarcation is problematic. The current homogeneity of phones, tablets and computers makes the court’s rationale behind the different privacy interest seem like legal conjecture at best.

By focusing on the nature of the search, the court’s decision  indirectly implies that call records (from Skype, etc.) and contact data stored on computers, tablets, etc., are subject to warrantless searches upon arrest. 

In light of the insurmountable technological advances made in the last decade, courts should err on the side of applying the same level of privacy expectation to personal telecommunication devices.  

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6th Circuit vacates special conditions of supervised release in CP case due to court's failure to justify the conditions

In U.S. v. Widmer, No. 12-5135 (6th Cir. 2013), the Sixth Circuit vacated and remanded the special conditions of supervised release in the sentence related to a child pornography conviction.

The defendant had admitted to downloading child pornography, and his computer contained seven images and 134 videos (which, under the federal guidelines, is calculated as a total of 10,057 images since each video is considered 75 images). Ultimately, he was sentenced to 97 months and five years of supervised release.

On appeal, the defendant argued that the conditions of his supervised release were an abuse of discretion. The conditions included "sex-offender mental-health treatment, a post-release psychosexual evaluation, probation-officer compliance searches, and restrictions on both his association with minors and use of computers."

The Sixth Circuit vacated and remanded on the issue because:

the court imposed the challenged conditions without explaining or addressing Widmer's argument that his circumstances did not justify special supervised release conditions.

The court acknowledged that they occasionally affirm special conditions on a silent record, but the reasoning for these conditions was not clear based on the record. For example, the association with minors condition would bar the defendant from seeing his daughter, though he "never solicited or physically harmed a child."

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Google report details law enforcement requests for data

Google released it's Transparency Report yesterday, detailing law enforcement requests for users' data from July to December 2012.

The report shows that 68 percent of requests were for "user-identifying information" obtained through a subpoena. Twenty-two percent were probable cause search warrants. Throughout the six-month period, 21,389 requests were received by Google.

According to Wired, Google requires a probable cause search warrant before it gives over actual content, despite the 2703(d) provision in the Electronic Communications Privacy Act which allows for most data to be obtained with a lesser showing (depending on the federal circuit).

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Minn. Ct. App. affirms suppression of CP images from cell phone, agrees phones may contain a weapon under Terry

In State v. Cooper, No. A12-1027 (Minn. Ct. App. 2013), the Minnesota Court of Appeals affirmed the suppression of images of child pornography found on a cell phone because the search of the phone was not authorized under the search warrant. The warrant specified the search of phones "at the premises," but the phone in question had been seized by police in a traffic stop just prior to the search of the home.

Officers had obtained a search warrant for the defendant's home as part of a drug investigation, and the warrant specifically authorized the search for cell phones "at the premises" which might be used in drug transactions. Because the defendant had two pit bulls, the officers decided to avoid simply walking up to the home. After learning that the defendant's driver's license was expired, they followed him home from work and stopped his car three blocks away.

During a Terry search, the defendant's cell phone was seized. Later, after the pit bulls had been secured, a large amount of marijuana was found in the home, and the defendant was taken to jail. One of the officers began looking through the defendant's phone and found child pornography. Before trial, the defendant moved to suppress the phone's images, and the trial court agreed, finding that the Terry search and later search of the phone were both impermissible. The state appealed.

The Court of Appeals first found that the Terry search resulting in the seizure of the phone was permissible for two reasons. First, the state successfully argued that a cell phone "might contain a weapon," and considering "that 'officer safety is a paramount interest,'" the seizure was justified. Further, the seizure prevented the defendant from notifying others that police were in route.

However, the actual search of the cell phone was held to be unconstitutional because it was outside the warrant's scope. The warrant specified the search of phones "at the premises," meaning it had to be found there. According to the court, "it did not authorize the search of cell phones brought onto the premises by the police."

The state also argued that the phone would have been searched incident to the defendant's arrest after finding the drugs. Because the phone had been placed outside of the defendant's reach, the court held, the search incident to arrest doctrine does not apply.

Lastly, the state argued that the exclusionary rule should not apply because it "does not serve the purpose of preventing future police misconduct." The court disagreed, holding:

Because application of the exclusionary rule deters the police from seizing evidence that is outside the scope of a search warrant, we conclude that the district court did not err by applying the exclusionary rule in this case.

Thus, the suppression of the images from the cell phone was upheld.

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Update: Full text of Ahrndt decision (motion to suppress granted)

I recently posted about the Ahrndt case on remand, and specifically, that the federal district judge granted the motion to suppress. The full text of the order/opinion can be found here:

Ahrndt on Remand, D.Or. 1-17-13

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Federal district court rules that images acquired from Internet cache are fair game in child pornography possession case

In yet another child pornography possession case, an Oregon federal district court made some interesting motion decisions.

In U.S. v. Storm, 2012 U.S. Dist. LEXIS 184056 (D. Oregon 2012), the court held that the evidence acquired from an electronic device’s unallocated space and Internet search files (cache files) can be introduced as long as it is not unfairly prejudicial.  

The court also granted and denied in part the defendant’s motion to suppress a vast majority of the pornographic images that the government proposed to publish to the jury. 

   

The defendant, Logan Storm, was charged with one count of knowingly possessing images of child pornography.

In filing his motion to exclude, the defendant asserted that there is no evidence that he knew the pornographic files were present in the unallocated space of his computer.

The government stated that it did not intend to secure a conviction solely on the files found in the unallocated space. They argued that the files recovered from the unallocated spaces such as cache files are relevant in conjunction with other files and images found in allocated spaces of the defendant’s various devices as it helps provide context to establish one or more disputed elements of the crime charged.

It is quite interesting that the court accepted this argument. The court seems to imply that the relevance of evidence taken from unallocated spaces and Internet caches hinges on it being combined with other relevant evidence. This does not speak to the relevance of such evidence in and of itself. 

In regards to the specific images, the court decided that many of them were cumulative and potentially unfairly prejudicial. However, the court rejected the defendant’s arguments that exposing the jury to the images had the potential of victimizing the child victims. 

The court also rejected the defendant’s suggestions that certain parts of the images needed to be redacted to reduce the prejudicial nature of the images citing lack of precedent.

After an in camera review of the images, the court decided that it would allow no more than 38 slides out of 97 slides of alleged child pornography to be shown to the jury. According to the court, most of the images were cumulative and present a substantial risk of unfair prejudice.  

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Breaking: In important Fourth Amendment case (Ahrndt), federal district judge GRANTS motion to suppress

We previously wrote about United States v. Ahrndt in a series of posts, after the 9th Circuit remanded the case for further consideration of the defendant's motion to suppress. Yesterday, a federal district court in Oregon granted Ahrndt's motion to suppress evidence (CP) from his iTunes library obtained by his neighbor (and later law enforcement) through an unsecured wireless network. This is a very important development, and we will get further into it in another series of posts.

Here is what we wrote, before:

Ninth Circuit remands case involving CP found on an unsecured wireless network - Jeffrey

Examination of the technology involved in Ahrndt - Jeffrey

Ahrndt considerations on remand and cordless ≠ WiFi - Justin

Arhndt's reference to Jones, and what Jones means in the context of wireless networks - Justin

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CFAA reform, DOJ dodges GPS tracking, Aaron Swartz stories - best of today's tweets from @Cybercrimerev

Hacking into person's social media accts, impersonating them, & creating online petition to get person fired = arrest.

@HanniFakhoury @csoghoian @marciahofmann - Renaming #CFAA - suggestion: Law Catches up With Technology & Reality Act of 2013? #cybercrime

- Anyone with suggestions, feel free to tweet back, or comment on the blog

@MikeScarcella: Nightclub owner in landmark #GPS tracking case files new suit against authorities.
Jones goes Bivens!

“@TrendLabs: Have you ever wondered what cybercriminals do with stolen information?” - info=$$$ & lulz. #cybercrime

Cops use GPS to nab painkiller thieves by hiding trackers in bottles. #privacy #GPStracking #security

CIFAS 2012 Fraud Trends. Account takeover fraud up 53% from previous year. #cybercrime #infosec #privacy #PCI

Ethical Hacking: Should good intentions get special protection from prosecution? Good intentions≠ethical... #infosec

@verge - How we use GPS to track you is none of your business, says Department of Justice. Really? #privacy #GPS #doj

@volokhcom - The Criminal Charges Against #AaronSwartz (Part 2: Prosecutorial Discretion) - #cybercrime #cfaa #law

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Report released detailing congressional employees' illegal downloading habits, CSI and Glee among most popular

We don't often discuss intellectual property issues here; though acts of copyright violation are a crime, the cases usually play out in civil suits. Also, there are many excellent blogs that already discuss the complexities of IP law, so we generally just avoid it altogether. However, there was one interesting release yesterday that I thought it worth noting.

Scaneye, a service which "monitors BitTorrent network mainly for statistic purposes," released a report today showing a list of TV shows and movies downloaded over the House of Representatives' network. Among the more popular were CSI: New York, Glee, and Australian soap opera Home and Away.

It's always interesting to see what is learned about the Internet activities of government employees. For example, the Missile Defense Agency had to remind employees why they should not watch porn at work only a few months back:

These actions are not only unprofessional, they reflect time taken away from designated duties, are in clear violation of federal and DoD and regulations, consume network resources and can compromise the security of the network though the introduction of malware or malicious code.

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Judge rejects party's offer to hand over blog credentials (login/password) instead of documents during discovery

In the highly contentious realm of electronic discovery where login passwords are zealously guarded, one plaintiff had no qualms about granting such access if it meant evading her burden of production in an acceptable format.

In German v. Micro Elecs., 2012 U.S. Dist. LEXIS 4594 (S.D. Ohio 2013), the trial court held it impermissible for a party to shift its burden of production due to the party’s refusal to produce the sought after electronically stored information (ESI) in an acceptable format.

In a discovery dispute arising from an employment action, the plaintiff offered to provide the defendants with her login credentials and passwords to her blogs and websites she frequented in lieu of producing responsive ESI. The defendants refused the offer due to the risk of being accused, or found to have altered relevant evidence.

Although it was an unusual offer, the defendants’ attorney employed commendable dexterity in effectively forecasting the risk associated with accepting the plaintiff’s offer to hand over her passwords.  

During the course of discovery, the defendants requested that the plaintiff produce all online postings, blogs and similar online activities that addressed the plaintiff’s workplace, health condition, or other issues raised in her complaint. 

The plaintiff responded by sending over a hundred pages of portions of blogs and websites that she had copied and pasted without any source attribution. The defendants rejected the submission because it considered the production deficient as it did not capture the original and complete text, formatting, and images of a blog or website. The defendants suggested that the plaintiff utilize a portable document format (PDF) or any format that is reviewable and that captures the documents in their original format. 

Although the plaintiff characterized herself as an extensive blogger and sophisticated user of the Internet, she stated that defendants’ request for production of screen shots or PDF was particularly too burdensome.  As an alternative, she offered the defendants direct password access to all her online journals, blogs, and social media websites.

The court found the plaintiff's excuse and suggestions to be unacceptable and noted that despite the defendants not requesting a specific form for producing the ESI, the plaintiff had a burden to produce the requested information in a form that the information is ordinarily maintained or in a reasonably usable form. The court ruled that the copied and pasted excerpts were neither an acceptable nor reasonable form of production. 

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Child taken away from mother due in part to depravity of online postings

If you're looking to nominate someone for mother of the year, this is not the case to look at. In Aaron B.D. v. Jennifer D. (In re K.B.D.), 2012 Ill. App. 121558 (Dec. 14, 2012), a trial court's verdict awarding the biological father of a young child custody over his biological mother was upheld, due in part to her postings on Myspace, Facebook, and Twitter. While it isn't unusual for a court to look at online evidence in custody proceedings, this case appeared to focus quite heavily on the online activities of the mother and I thought the trial court's take on her activities (and the posting themselves) were quite interesting.

Importantly, the mother Vicki had made a large amount of her postings with references to the child's name, which in turn allowed anyone on the internet to search for the child's name and find inappropriate things the mother had posted. The court:

The court read extensively from Vicki's Internet posts on blogs, Myspace, and Facebook, which the court found were important in making its decision. The court noted that Vicki was an exotic dancer, which was not illegal, but found that her photographs on the Internet were "disturbing," because they depicted "[Vicki's] interest in bondage. Photographs with her hanging from chains with her wrist cuffed. Pictures skimpily dressed; pictures with her hand at her genitals, very, very suggestive photographs. All of these were found on the Internet by the GAL, all by Googling [the child's] name. This is particularly disturbing."

Vicki's argument on appeal was that there was insufficient evidence to show depravity and that the online postings were not enough to take her child away and allow adoption by the biological father and his girlfriend. The court disagreed. (As a side note, there was also evidence that Vicki failed to keep in contact with the child, had mental health issues, and had acted in an irresponsible or odd manner on an untold number of occasions). Examples of Vicki's online activities (from the father's testimony):

Aaron also testified that he had visited Vicki's blog and testified about several entries. ...Vicki had told the child that elves were fictional, which Aaron confirmed that she had done; the blog also discussed Vicki's complaints about Santa, elves, the Easter Bunny, and Snow White. . . . 

Another blog entry was dated May 19, 2009, and was entitled "conception." Aaron testified that the entry contained a large amount of false information about him, including that Vicki told him that she did not wish to have sex with him and that he did so anyway, pinning her down and covering her mouth. . . .

Aaron then testified about Vicki's postings on Facebook. He testified that she created a public profile in the child's name, which included negative comments about Aaron and links to articles about him, and included photos and video of the child.

And from the girlfriends testimony:

Jennifer testified that while they were parenting the child, she searched for the child's name on Google as a precautionary measure. She discovered photographs of Vicki in compromising and provocative positions and "ongoing rants" that Jennifer knew were fabricated. Jennifer further testified that in investigating. . . . Jennifer testified that Vicki posted information about getting her hair done, eating out, and traveling at the same time that she was not paying any child support. 

In the trial court ruling, the court stated:

"The thought that a child could go on online and see what is on these blogs on the Internet is just incomprehensible to me. The thought that his friends could see any of these things. There was one entry which I think I neglected to read that indicated that [Vicki] said she had thought she wouldn't tell [the child] about the rape until he was older, indicating that, perhaps, she had told him about the rape. I certainly hope that's not the case. Given the lack of credibility, I don't believe that it was a rape. I believe it was consensual sex, and I believe that the behavior exhibited throughout the ensuing years has shown a lack of ability to conform to a moral standard[] which is acceptable and, thus, that [Vicki] reaches the definition of depravity."

The appellate court agreed, stating that while "[w]e agree that Vicki's behavior is not on the same scale as murder or predatory criminal sexual assault, both of which result in a presumption of depravity. . . . the commission of these types of crimes is not required in order for a person to be considered depraved." Thus, the great weight of her internet activity, and the ability of the trial court to observe her demeanor during trial was sufficient to uphold the adoption/termination of parental rights.

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Second Circuit reverses restitution award in CP case, explains proper formula for calculating the amount

In United States v. Hagerman, No. 11-3421-cr (2d Cir. 2012), the Second Circuit reversed and remanded an award of restitution to "Vicky", a victim of child pornography. The defendant was ordered to pay the remaining balance of Vicky's damages, but the Second Court found that he was only liable for the amount portioned to him after dividing the total damages by the total number of convicted defendants.

The defendant had been convicted of receipt and possession of child pornography and was sentenced to 96 months in prison, a life term of supervised release, and a $200 special assessment. Additionally, finding that the defendant was jointly and severally liable Vicky, the district court ordered him to pay restitution of $975,917.64. On appeal, the defendant make multiple objections with regard to his sentence and the restitution order.

The Second Circuit is one of the majority circuits which holds that a defendant must have proximately caused the harm to the victim in order to be ordered to pay restitution (read more about this issue and the circuit split here). The court found that standard to be met here as:

Vicky had actual knowledge of Hagerman's offense conduct as her representative had informed her of this action, and that her knowledge that Hagerman was among those who had downloaded her picture had caused her actual and ongoing psychological harm, as demonstrated in her victim impact statement and psychological evaluations.

However, where the Second disagreed with the trial court was in the amount of the damages. The total harm alleged to have been caused to Vicky is $1,224,697.04. A total of $248,779.40 has been collected from other defendants, "leaving $975,917.65 unpaid and recoverable." The district court found the defendant liable for the entire amount of the remaining damages despite precedent holding that joint and several liability should not apply in this situation.

The correct calculation, the Second Circuit determined, was to divide the entire amount of damages by the number of defendants who have been "successfully prosecuted" for possessing the images of Vicky. Thus, the defendant should have been ordered to pay restitution in the amount of $8,388.31 (which is $1,224,697.04 divided by 146 (the number of convicted defendants)).

Of course, the difficulty in imposing such a formula is that there is no way to know how many defendants there will be when the first case is decided. Thus, the calculation plays out in a weird way throughout the process. The first defendant would be liable for the entire amount, the second for $612,348.52, and the third for $408,232.35. Suppose 500 defendants are ultimately convicted - number 500 will only be liable for $2,449.39. However, victims cannot recover more than 100% of their injuries. Thus, if the first defendant is able to pay the entire amount, no future defendant would be ordered to pay any money.

To you non-lawyer folks, do know that an award of restitution is not to be considered a punishment for committing a crime; rather, the amount is intended to "make them whole" - that is to provide the financial resources necessary to put the victim in the same position as if the injury had not happened, similar to a tort lawsuit after a car wreck.

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Judge Posner questions "superlong" 50-year sentence given to 46-year-old in CP production case

In United States v. Craig, No. 12-1262 (7th Cir. 2012), Judge Richard Posner of the Seventh Circuit offered a critique of lengthy sentences of elderly defendants.

The defendant had been found guilty of producing child pornography after repeated sexual assaults against a friend of his children. He had also obtained images of the child by threatening to kill her unless she e-mailed him sexually explicit pictures of herself. A 30-year sentence was ordered for one count, and three 20-year sentences were ordered to be severed concurrently but consecutively to the 30-year sentence. Thus, the 46-year-old defendant, was ordered to serve 50 years in prison.

In a concurring opinion, Judge Posner wrote "to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences." He also opined an argument that had the defendant known he might have faced fifty years in prison, he might have been deterred from committing it. "Probably he had no idea what his punishment was likely to be if he was caught, for the Justice Department does little to publicize punishment levels for the various federal crimes."

In conclusion, Posner offered:

I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge's sentencing decision.

Judge Posner, who has served on the Seventh Circuit since 1981, turns 74 this Friday. Read about more of his opinions here.

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Computer forensic delays a growing problem?

It is hard not to notice the growing number of cases that revolve around or discuss the delays associated with processing computer forensic evidence. Is there a growing problem? The short answer is yes, but it is hard to determine the scope and depth of the problem merely by analyzing disparate court opinions and news stories. It does appear to be a systemic problem, both at the federal, state, and local level. Here is some evidence:

Recent cases

(January 3rd, 2013) United States v. Montgomery, __ F.3d __ (10th Cir. 2013) - after obtaining documents through a FOIA request, the defendant alleged as part of his defense that "forensic analysis had not been done because the FBI's . . . CART . . . office in Oklahoma City was backlogged for over 6 months."

United States v. Lovvorn, 2012 WL 3743975 (M.D. Ala. April 24, 2012) - "Finally, Lovvorn argues that an unreasonable delay between the seizure and the subsequent search of his computer is a violation of the Fourth Amendment. . . . The property was taken to the Coffee County Police Station, and then turned over to the Alabama Bureau of Investigation ("ABI"). The ABI returned the results of their forensic investigation nineteen months after the seizure from Lovvorn's residence occurred. There was no evidence presented that Lovvorn sought to have his property returned or was prejudiced in any way, nor has there been any assertions against the chain of custody or the authenticity of the evidence. The ABI has only one location in the state. The court therefore finds it is reasonable to believe that the delay was caused by nothing more than a backlog of cases."

News Stories

General Dynamics Awarded $42 Million to Support FBI Computer Forensic Networks

Previous posts

Federal court holds that 15-month delay in reviewing electronic evidence was an unlawful seizure

District court orders suppression after lengthy delay for cell phone search (3 month delay)

In Paypal DDOS case, government reprimanded for failure to analyze and return data in a timely fashion - In that post, I wrote: "To me, it's hard not to wonder if there is a systemic problem going on with how the government is handling cybercrime cases and the plethora of evidence that they tend to produce - according to this transcript, there were at least 9 terabytes of data that had to be analyzed.  That is certainly a lot of data, but as the court in Metter stated, there has to be a line drawn somewhere when retention of data transforms from investigatory to a violation of the Fourth Amendment."

Comments

The underlying legal implications of such backlogs are numerous, but include: (1) the suppression of evidence (as seen in a few cases above) due to the delay, as a violation of the Fourth Amendment, (2) delay in prosecution of child pornography and similar child predator cases, which has the potential to provide time/opportunity to commit additional offenses, and (3) the likelihood that evidence in lesser cases will be skipped over for more high-profile cases, driving up the bar that must be reached to consider a case worthy of prosecution.

I'd appreciate any comments from practitioners in the field who have seen similar delays and can attest to them, or alternatively, stories indicating a trend in the opposite direction.

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Montana district court finds privacy interests in messages not waived when owner voluntarily gives phone to law enforcement

In State v. Johnson, 2012 Mont. Dist. LEXIS 39 (Mont. Dist. Ct. 2012), a Montana federal district court held that individuals have a reasonable expectation of privacy in their incoming and outgoing text message communications. 

The case involved an alleged rape that was reported by the victim earlier in the year. While the defendant admitted to having sexual intercourse with the victim, he maintained it was consensual.

The victim voluntarily turned over her cell phone to law enforcement upon request. About 29,000 messages were retrieved. A discovery dispute arose when the defendant requested for all the text messages and the State sought to redact some of the messages.

In making its decision, the court recognized that it must balance the victim’s right to privacy with the defendant’s right to exculpatory information. The court discussed how the specific issue of the discoverability of text messages has been addressed in other jurisdictions. 

The Washington Court of Appeals earlier last year held that the constitution does not provide protection for text messages once the intended recipient receives them. State v. Hinton, 2012 Wash. App. LEXIS 1510 (Wash. Ct. App. 2012). In an attempt to distinguish this case from Hinton, the court focused on whether there is an expectation of privacy in sent and received text messages that are stored on the phone, instead of Hinton’s focus on the absence of privacy interest once text messages are sent.

The court also discussed State v. Patino, P1-10-1155A (R.I. Super. Ct. 2012), a Rhode Island case, where the trial court held that the defendant had a protected expectation of privacy in the text messages that were saved on his girlfriend’s cell phone.

The Patino and Hinton decisions arguably represent two different approaches to the issue of privacy interest in text messages. Rather than explicitly parting ways with the Hinton decision (which in practical effect, the court does), it settles for an ill-defined distinction between this case and Hinton.

Mirroring the approach taken in Patino, the court noted that the victim did not waive her privacy rights or the privacy rights of the individuals with whom she communicated by voluntarily turning in her phone to law enforcement.

After an in camera review, the court ruled that none of the redacted messages contained exculpatory material; thus, the privacy rights in the content of the communications of the both the victim and the individuals with who she communicated warranted protection. 

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Court holds that Jones concurrences do not provide that extended surveillance violates Fourth Amendment

In United States v. Brooks, No. CR 11-2265 (D. Ariz. 2012), the court held that the concurring opinions in the Supreme Court's 2012 Jones decision cannot be read to find that prolonged video surveillance violates the Fourth Amendment.

Law enforcement had placed a camera on a service pole outside the defendant's apartment complex with permission from the property owner. The camera was able to zoom and pan. Using images acquired from the camera, the government was able to build a case against the defendant.

At issue before the court was whether the placement of the camera violated the defendant's Fourth Amendment rights and the evidence should be suppressed. The defendant, relying on concurring opinions by Justices Alito and Sotomayor, argued that under United States v. Jones, "long-term continuous surveillance violate's a person's Fourth Amendment rights."

The court disagreed that the concurring opinions can be read as binding.

While it does appear that in some future case, a five justice "majority" is willing to accept the principle that Government surveillance can implicate an individual's reasonable expectation of privacy over time, Jones does not dictate the result of the case at hand because it merely reaffirms the reasonable expectation of privacy analysis.... Accordingly, the Court must determine whether Defendant's reasonable expectation of privacy required law enforcement to obtain a warrant before conducting pole camera surveillance on the parking lot of a gated apartment complex associated with Defendant from a camera whose installation was permitted.

As such, the motion to suppress was denied.

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Judge allows discovery of private Facebook postings and photos in sexual harassment case

In an order, found here: Reid v. Ingerman Smith, LLP (E.D.N.Y Dec. 27, 2012), Magistrate Judge Marilyn D. Go granted (and denied in part) a motion to compel discovery of plaintiff Reid's social media usage. The case itself revolves around a sexual harassment claim brought by Reid against Ingerman Smith for an incident while Reid was employed as a legal secretary. More details regarding the case can be found here (in an order to deny in part and grant in part a motion to dismiss the case, authored by Judge Glasser).

Judge Go agreed with the defendants that Reid's Facebook postings and comments on photographs placed on Facebook were relevant to whether Reid had actually experienced the emotional distress she claimed resulted from the sexual harassment. The court reviewed how other jurisdictions had dealt with similar questions, after observing that: "[a]lthough the law regarding the scope of discovery of electronically stored information ("ESI") is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable." The ultimate issue, then, as summarized by the court:

The defendants argue that since postings and photographs from the public portions of plaintiff's Facebook account contain information that contradict plaintiff's claims of mental anguish resulting from the alleged sexual harassment by defendant Sadowski and termination of her employment, the non-public portions may also provide relevant information. Plaintiff responds that she should not be subject to broad discovery of the entirety of her social media account and be required to disclose private information.

I think any court facing this dilemma is trying to do two things: (1) facilitate discovery of information that is no doubt relevant to the claims in the case, but more importantly, (2) attempting to prevent further emotional damage to the plaintiff, whose privacy was already violated once by the sexual harassment, by limiting the reach of the prying inquiry requested by the defendant. I'm not necessarily convinced Judge Go achieved the second goal adequately. At least in the order, she exempted trivial personal information and photographs from birthdays, but did not really delineate what should be excepted. She offered stipulations at the end regarding discovery, but it remains to be seen if the scope will be as limited as she imagined with such a dearth of adequate guidance by the court.

The court summed up its thoughts as follows:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more "germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose" rather than to affording a "basis for shielding those communications from discovery." E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010). 

Even had plaintiff used privacy settings that allowed only her "friends" on Facebook to see postings, she "had no justifiable expectation that h[er] 'friends' would keep h[er] profile private . . ." U.S. v. Meregildo, 2012 U.S. Dist. LEXIS 115085, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, "the wider h[er] circle of 'friends,' the more likely [her] posts would be viewed by someone [s]he never expected to see them." Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation of e-mail with greater expectation of privacy of materials located on a person's computer). (emphasis added)

While many courts have stated that Internet communications are less protected, I'm not convinced that you can fully analogize a Facebook posting to an email. Here's why: An email has no built in protection to prevent forwarding to third parties; Facebook does - you personally limit who can see what on your page, and that effort in and of itself shows a subjective intent to retain an expectation of privacy in those posts. It is not a difference in kind, and I would never argue it was, but the continual need to analogize differing internet communications to email to appeal to more settled court precedent is troublesome.

I'd like to reiterate that I am not arguing the information requested isn't germane to the case, indeed, it is likely so. But, sweeping under the rug the difference between Facebook and other electronic communications does a disservice to users of these sites. It also erodes the ability of an individual to protect their own privacy interests through use of privacy mechanisms employed by electronic services such as Facebook; what's the purpose of such mechanisms, if all communications on Facebook are essentially, if not explicitly, lumped together?

My favorite part of this ruling follows:

statements regarding plaintiff's social activities may be relevant to plaintiff's claims of emotional distress and loss of enjoyment of life. The postings may also provide information regarding potential witnesses with knowledge. Thus, plaintiff must disclose social media communications and photographs "that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." Simply Storage, 270 F.R.D at 435-36; see also In re Air Crash, 2011 WL 6270189, at *6 (W.D.N.Y. 2011) (ordering disclosure of electronic communications, including social media materials, as they relate to decedent's domicile and claimants' loss of support claims). Likewise, photographs uploaded by plaintiff, as well as photographs uploaded by third parties depicting plaintiff are discoverable, while other photographs that have a more tenuous connection with the party are less likely to be relevant. Clearly, "pictures of the claimant . . . will generally be discoverable because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status" while "a picture posted on a third party's profile in which a claimant is merely 'tagged' is less likely to be relevant." Simply Storage, 270 F.R.D. at 436.

Two comments: (1) "social media communications and photographs" that reveal or relate to "any emotion, feeling, or mental state" essentially comprises anything on Facebook. Short of a picture of a tree in a field, everything on Facebook has a "feeling" connotation. Even the picture of a tree just mentioned could show a "mental state" focused on "trees." Is that helpful? The court's words are just about as vague and unhelpful to what is within the scope of social media discovery as I have ever seen. (2) photographs uploaded by third parties depicting plaintiff are discoverable? Wow. What about if those photos contain locational EXIF data, or private information a third-party believed would remain within a small social sphere? Once again, I am not arguing this type of information may or may not be relevant, but some guidance by the court regarding third-party privacy should have been noted. I ardently ascribe to judicial precision and narrowness, but not when a few extra words would clarify an order which the court admits falls in an area of judicial and legal instability.

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