Showing posts with label cell phone. Show all posts
Showing posts with label cell phone. Show all posts

Thursday, June 26, 2014

Initial Reactions to Riley v. California

Natalie Nicol  18 comments

Yesterday, the Supreme Court unanimously ruled that police must obtain a warrant prior to searching the cell phones of the people they arrest in Riley v. California. In an opinion widely heralded as a resounding victory for privacy in the digital age, Chief Justice Roberts wrote:
Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
Much has already been written about the landmark decision. Here are some initial reactions to Riley from the law and technology community:

Twitter also weighed in on the case. Below are some thoughts on Riley in 140 characters or less: 
I will continue to update this post with additional writings as they are published. If I have missed any, please comment here or reach out to me on Twitter @natnicol.

This post was updated on June 26, 2014 at 1:59 p.m. MDT, and again at 2:21 p.m. MDT.
This post was updated on June 27, 2014 at 1:15 p.m. MDT.

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Wednesday, April 23, 2014

Supreme Court News: Reply Briefs Filed (Apr. 22nd) in Fourth Amendment Cell Phone Cases (Wurie and Riley); Oral Arugment Next Week

Justin P. Webb  No comments

In Riley v. California, Petitioner David Leon Riley has filed his reply brief. The cases is summarized by SCOTUSblog as follows:
Issue: Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.
In United States v. Wurie, Petitioner United States has filed its reply brief. SCOTUSblog's summary:
Issue: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.
Both cases are scheduled for oral argument on April 29th.

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Thursday, February 6, 2014

Quick note: Oklahoma Appellate Court: No reasonable expectation of privacy in text messages sent to another person's phone

Justin P. Webb  No comments

The case is State v. Marcum, No. S-2012-976 (OK App. Ct. Jan. 28, 2014). FourthAmendment.com's summary of the case (with slight modifications):
A search warrant was used to obtain [cell phone text records]. [The court held] that [t]here is no reasonable expectation of privacy in the records of another person’s account <even if those records pertain to you>. When you hit “send” and [transmit a] text message to another person, you’ve lost any reasonable expectation of privacy in the message.
The court's holding can be boiled down to the following paragraph:
Addressing only the narrow question before us, Marcum has not demonstrated a reasonable expectation of privacy in the records seized from U.S. Cellular for Miller's phone account. This Court adopts the reasoning of the courts which have concluded that there is no expectation of privacy in the text messages or account records of another person, where the defendant has no possessory interest in the cell phone in question, and particularly where, as here, the actual warrant is directed to a third party. 
The court frames it as a novel issue, but I think the third-party doctrine compels a rather straightforward outcome.

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Wednesday, November 13, 2013

Fed Ct: A cell phone is not a container (i.e. conventional wardrobe), but Narnia (the magical wardrobe); police need a warrant to enter the portal

Justin P. Webb  No comments

[[  The case is United States v. Mayo, No. 2:13-CR-48 (D. Vt. Nov. 6, 2013). (the link here is to the order denying suppression - more on that below).

Defendant's Motion to Suppress
Government's Opposition to MTS
Def. Response to Gov't Opposition to MTS
Def. Post-Suppression Hearing Memo
Gov't Post- Suppression Hearing Memo
Def.'s Supplemental Filing re: the Katzin decision ]]

****
A Vermont Federal District Court, by rejecting the idea that cell phones are "containers" under the Fourth Amendment, took a noticeable step away from the judicial propensity to force today's technology into property-based notions of the Fourth Amendment (see, e.g., the constable in Jones) in a misguided attempt to address emerging technology. While law will never keep pace with technology's march onward, and at times we must rely on the open texture of the law (see H.L.A. Hart), it is always refreshing to see the judiciary recognize that strained reverse engineering of anachronistic precedent must yield when the prevailing analogy becomes unmoored from the underlying legal issue. The court held that warrantless searches of cell phones, incident to arrest or under the automobile exception to the Fourth Amendment, were unconstitutional.

The court recognized, in reaching its holding, that the amount of information a cell phone could contain is limitless, taking into consideration that cell phones can now access/store information in the cloud (vastly expanding their on-board/physical storage capabilities); that alone, the court noted, was sufficient to distinguish a cell phone from a container. The end result:
the Court chooses to adopt a bright-line rule here: cell phones properly seized pursuant to the search-incident-to-arrest exception or the automobile exception cannot be searched without a warrant. Case-by-case analysis is not appropriate in this context, and the Government has not demonstrated any reason that such a warrant requirement would be unduly burdensome.  As a result, the Court hereby holds that law enforcement must obtain a warrant before performing such searches in the future.
…
…the Fourth Amendment requires that law enforcement obtain a warrant before performing a forensic search of lawfully seized cell phones.
The court's reasoning  (quoted at length because it is fascinating, both in a legal and literary sense):
The physical containers at issue in Robinson and Belton, and, indeed, even the cell phones in Finley, could not begin to approximate the amount of information that may be stored on a cell phone today. The Government states again and again in its briefings and at the hearings that the only difference between cell phones and conventional containers is that cell phones are “capable of storing large amounts of information.” Gov’t Post- Hr’g Mem. Mot. Suppress 13. The Government posits that this capability does not justify any differentiation between cell phones and traditional containers, but, in the Court’s view, this is precisely the factor that makes all the difference. The container analogy fundamentally fails to address the magnitude of modern cell phone storage capacity. Furthermore, it fails to consider the fact that many modern smartphones can access the Internet, opening up limitless additional storage. Because of these capabilities, modern cell phones can no longer fit comfortably within the Supreme Court’s original conception of a “container.” ... 
Several courts have recognized the storage capacity of modern cell phones as a basis for refusing to permit a warrantless search.  Most notably, the First Circuit recently determined that the search-incident-to-arrest doctrine “does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.” Wurie, 728 F.3d at 13. A significant concern underlying the First Circuit’s decision was the amount of information that would be accessible via a cell phone search. Id. at 9 (noting that individuals today “store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked”); see also Park, 2007 WL 1521573, at *9 (suppressing evidence from a warrantless search of defendant’s cell phone and analogizing modern cell phones to computers); State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (“Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”). 
The Government, in its continued attempt to downplay the quantity of information available on a cell phone, argues that the amount of data available should not matter because exceptions to the warrant requirement have been applied to large vehicles and motor homes. Gov’t Post-Hr’g Mem. 13 (citing California v. Carney, 471 U.S. 386, 388-89 (1985) (applying the automobile exception to a motor home); United States v. Gagnon, 373 F.3d 230, 240 (2d Cir. 2004) (tractor-trailer); United States v. Cruz, 834 F.2d 47 (2d Cir. 1987) (tractor-trailer truck)). This analogy demonstrates the Government’s misconstruction of the problem: the issue is not how large the container is, but that in the context of cell phones there is no limit to what the purported “container” may contain. See Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1169 (D. Or. 2012) (finding that warrantless search of a digital camera violated the Fourth Amendment in part because “the storage capability of an electronic device is not limited by physical size as a container is”). Because modern cell phones can connect to the Internet, their storage capacity is nearly infinite. A tractor-trailer may be much larger than a sedan, but it still has tangible confines. A cell phone, by contrast, has no defined boundaries. Thus, allowing warrantless searches of cell phones pursuant to the search-incident-to-arrest exception would provide law enforcement with a giant exception to the warrant requirement without any limiting principles. 
Consider, for purposes of illustration, C.S. Lewis’s famous wardrobe. See C.S. Lewis, The Lion, the Witch, and the Wardrobe (1950). There is no question that the search-incident-to-arrest doctrine extends to a conventional wardrobe (in the unlikely event that one is found in a vehicle or on an arrestee). While this would be a search much more intrusive than Robinson’s cigarette pack, it still fits within the container doctrine because it has easily discernible limits: the container is large, but it is contained. Contrast this with the eponymous cabinetry in The Lion, the Witch, and the Wardrobe. Because the magical wardrobe is also a container, the Government would argue that it also fits within Robinson and Belton. However, this particular wardrobe also serves a second function. It opens up to another world, and because of this, it ceases to be merely a container—it is also a portal. Today’s cell phones, with their capacity to reach the Internet, the cloud, and to store millions of documents and photographs, can no longer analogize to a run- of-the-mill wardrobe. Instead, they are also a portal: a portal to the vast cosmos of the Internet. ... If the container rule were to apply to such a portal, a container search of Lewis’s wardrobe would extend to all of Narnia. But where a physical object is a portal to another world, there is a critical difference between a search of the object and a search of the worlds “contained” within the object. 
Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers. . . . Courts have consistently found analogies between computers and conventional containers to be problematic. For example, the Tenth Circuit found that “analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’” United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (quoting Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994))(further citations omitted). 
The Government alternately seeks to justify the warrantless cell phone search as a container search under the automobile exception (as distinct from the vehicular prong of the search- incident-to-arrest doctrine). Gov’t Opp’n 7–8. However, the container rule under the automobile exception does not compel a different conclusion. The automobile exception allows law enforcement to search a vehicle and its contents that may conceal the objects of a search without a warrant so long as there is probable cause. Wyoming v. Houghton, 526 U.S. 295, 301 (1999) (quoting Ross, 456 U.S. at 823) (finding that the automobile exception “justifies the search of every part of the vehicle and its contents that may conceal the object of the search”). Several district courts have found that this exception extends to the warrantless search of a cell phone found in a vehicle searched with probable cause, so long as there is probable cause to believe the phone contained evidence of a crime. (citations omitted) 
These courts, like the courts in the search-incident-to- arrest context, all found that the searches were constitutional by analogizing cell phone searches to container searches. (citations omitted). Because the Court finds that this container analogy is no longer workable, the automobile exception does not require a different analysis. Instead, cell phones seized pursuant to the automobile exception, like those under the search-incident-to-arrest doctrine, are also properly analogized to computers, not containers. 
Not only have cell phones outgrown the original conception of a conventional container under the search-incident-to-arrest and automobile exceptions, but warrantless cell phone searches also can no longer be justified by the rationales underlying these exceptions. In Wurie, the First Circuit found that the Government could not demonstrate that warrantless cell phone searches are “ever necessary to protect arresting officers or preserve destructible evidence.” Wurie, 728 F.3d at 13 (citing Chimel, 395 U.S. at 763).
…
Wurie’s concern with “general evidence-gathering” is plainly applicable to this case. The search of Mayo’s cell phones was very invasive and performed without any limitations on law enforcement. Furthermore, it was not justified by the rationales underlying the search-incident-to-arrest and automobile exception doctrines. In fact, the Government has not demonstrated that such intrusive warrantless searches are ever necessary absent exigent circumstances. The search-incident-to- arrest exception “derives from interests in officer safety and evidence preservation.” Gant, 556 U.S. at 338 (citing Robinson, 414 U.S. at 230–234; Chimel, 395 U.S. at 763). Similarly, the automobile exception is rooted in the need to preserve evidence. See Ross, 456 U.S. at 806-07 (noting that in the automobile context, “immediate intrusion is necessary if police officers are to secure . . . illicit substance[s]”). Obviously, officer safety considerations are not implicated here. However, the Government has not demonstrated that such searches are necessary for evidence preservation either. 
In the past, courts have allowed warrantless cell phone searches because they found it necessary to allow police officers to search a cell phone based on the need to preserve evidence. (citations omitted). However, once law enforcement has seized and secured a cell phone, the risks regarding evidence preservation diminish. While courts have voiced concerns about the danger that internal data could be remotely erased, see Flores-Lopez, 670 F.3d at 807-08, there are simple methods available to protect a seized cell phone from remote modification. For example, in Vermont, it is state law enforcement’s practice to turn seized smartphones to “airplane” mode to disconnect them from outside interference, or to place them in a device that protects the phone from outside disruption. Suppression Hr’g Tr. 11:25-12:6, 13:14-20, Sept. 30, 2013. Thus, the Government has not shown that evidence preservation considerations justify the warrantless search of a seized cell phone.
Moreover, the Government has not demonstrated that it would be an undue hardship for federal law enforcement to obtain a warrant before performing forensic analysis on a cell phone. Indeed, this is already standard operating procedure for Vermont state law enforcement.  
…Thus, the Court finds that Mayo’s Fourth Amendment rights were violated when law enforcement searched his phone without a warrant.
For those who read the foregoing language as a slam dunk, I suggest you hold your applause. While the court announced a prophylactic rule for the future, the defendant here was torpedoed by the Good Faith Exception (despite an admirable attempt to avail himself of the recently published Katzin opinion from the Third Circuit - see more Cybercrime Review posts, here: Katzin Coverage). The court's reasoning on the Good Faith argument:
... the Third Circuit declined to apply the good faith exception where police relied on out-of- circuit precedent. Katzin, 2013 WL 5716367, at *16-17. Mayo cites Katzin to argue that the good faith exception should not apply in this case because there is no on-point authority from the Supreme Court or the Second Circuit. 
In Katzin, however, there was a significant circuit split on the issue in question. . . .Thus, law enforcement would not have been able to reasonably rely on out-of-circuit precedent, as there was no consensus. In other words, the law could easily be characterized as the type of “unsettled” law contemplated by Justice Sotomayor’s concurrence. In this case, by contrast, there was no circuit split as of March 2013; all of the circuits to address the issue had permitted such searches. While there was no binding Second Circuit authority, law enforcement acted reasonably in reliance on a general out-of-circuit consensus. Because Katzin is distinguishable from this case, the Court finds that application of the good faith exception remains appropriate.
I questioned this type of argument in a previous post (see here: OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception), so I won't belabor the point further, except to say that I take issue with out-of-circuit precedent providing sufficient "cover" to allow Fourth Amendment protections (or, if you please, Fourth Amendment restrictions on permissible law enforcement methods) to rise or fall with assurances that law enforcement understood existing non-precedential law and decided to act based on such notions instead of shooting from the hip.

Again, stripped of all of the rhetoric, I find this opinion important because it advances a conception of technology I have repeatedly argued for - one that sheds physical analogies that are ill suited to cyberspace and analogies which, standing alone, call for further judicial acknowledgment, or legislative action to ameliorate the growing distance between law and technology.

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Friday, October 18, 2013

Wisconsin Supreme Court hears oral arguments in cell phone tracking case, State v. Tate

Anonymous  No comments

On October 9th, the Wisconsin Supreme Court heard oral arguments in State v. Tate, a case addressing whether the lower court properly denied defendant's motion to suppress evidence from a warrant that allowed police to track the location of the defendant's cell phone.

The defendant frames the issue of the case in his brief (attached below) as follows
Police obtained a court order to track a cell phone because the person in possession of the phone was suspected of a homicide. However, neither the location  data itself, nor the phone’s location, nor the location of the person in possession of the phone constituted evidence of a crime. As one federal district court recently described the scenario, police asked “to use location data in a new way—not to collect evidence of a crime, but solely to locate” a suspect. MD Prospective, infra, 849 F. Supp. 2d 526, 530 (D. Md. 2011).

Issues: Was there statutory authority for the Order? Did the Order violate the State and Federal Constitutions? The lower courts concluded that the Order was permissible.
The State's response (attached below) frames the issue as follows
Issues: Was the judicial order authorizing the police to track a cell phone belonging to defendant-appellant-petitioner Bobby L. Tate a valid search warrant?
Here are links to the Wisconsin Court of Appeals decision, the Defendant's Brief, the State's Response, and the Defendant's Reply.

Additionally, here is a link to the audio of the oral arguments (.WMA)

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Wednesday, April 3, 2013

Question on appeal: "Is a cell phone really a pair of trousers?"

 No comments

In a Texas appellate case, the Electronic Frontier Foundation is arguing that a warrant is required before police search a cell phone being held in a jail's property room. A teenager was arrested at school for a "disturbance" and taken to jail. His cell phone was taken from him and searched, revealing evidence of an unrelated felony (he was arrested for a misdemeanor). The trial court and lower appellate court found that the evidence should be suppressed.

The lower appellate court had framed the issue this way:
Is a cell phone really a pair of trousers? The State argues as much here, at least when both come from someone who has been arrested. We disagree and affirm the trial court's decision to suppress evidence discovered during a warrantless search of an impounded cell phone.
On appeal again before the Texas high court, the EFF and others argue:

The Court’s ruling in this case thus has the potential to affect every Texan who possesses a cell phone and who might someday be arrested and jailed, even briefly, for a misdemeanor offense. Cell phones and smart phones with immense digital memories containing their users’ most private information are now in the pockets of millions of Americans each day. The state contends that a pretrial detainee being held in jail has “no legitimate expectation of privacy” in his inventoried personal effects, including the data stored in personal electronic devices. If the state’s argument in this case were to be accepted, any law officer, even a stranger to the arrest, would be able to enter a jail property room with no warrant, probable cause or exigency
whatsoever, power up any detainee’s stored and inventoried cell phone, and freely rummage through the device, either for mere curiosity or a personal vendetta, or searching for incriminating photographs, emails, texts or other data related to any potential criminal offense. This is not the law, nor should it be. 
In sum, no exception to the warrant requirement applies on these facts, and the appellate court’s decision below, suppressing the evidence obtained from the warrantless search of Anthony Granville’s cell phone, should be affirmed.... 
A cell phone is not a pair of pants.

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Tuesday, February 19, 2013

Court disallows cell phone search that occurred six hours after arrest

Anonymous  1 comment

Timing they say is everything, even when it comes to warrantless searches.

A federal district court echoed similar sentiments when it held that a warrantless search of a defendant’s cell phone six hours after arrest was unconstitutional. 

In U.S. v. Dimarco, U.S. Dist. LEXIS 16279 (S.D.N.Y. 2013), the court granted the defendant’s motion to suppress evidence obtained from the warrantless search of his cell phone because of the timing of the search and the insufficient justifications offered by the officer who conducted the search. 

The defendant, a felon, was arrested by the NYPD during an illegal gun sale. During the arrest, the defendant’s cell phone, a defaced automatic firearm and a silencer were recovered. 

More than six hours after the defendant’s arrest, a special agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives examined the defendant’s cell phone. She scrolled through the pictures, text messages, and phone numbers stored on the phone. 

The agent stated that her purpose was to see if there was any evidence on the phone linking the firearm to the defendant. The agent also added that she searched through the phone without a warrant in an attempt to preserve the evidence because she was unsure of the arresting officer's evidence preservation methods. 

The warrantless search yielded about four pictures depicting a firearm that was the same color and same shape as the one recovered from the defendant during the arrest.  The agent took pictures of the digital images she came across.

At trial, the government opposed the defendant’s motion, arguing that the agent’s search of the phone was acceptable because it fell within the “search incident to arrest exception” to the Fourth Amendment’s warrant requirement. 

The court rejected this argument and held that the defendant had a cognizable privacy interest in his cell phone due to the “unique and significant information-storing capabilities of the modern cell phone.” 
Given the timing of the search and the justifications offered by the agent, the court further held that the search was unreasonable and did not properly fall within the search incident to arrest exception. 

The court focused on the fact that the search occurred more than six hours after the defendant’s arrest and thus was not contemporaneous on the defendant’s arrest. The court also noted that there was not any exigent circumstance that warranted the delay.

Also, the court highlighted that the reasons stated by the agent for conducting the search were not in line with the justifications underlying the search incident to arrest exception. 

The government was neither able to prove that the cell phone presented a threat to the officers nor that the defendant would have been able to destroy the evidence on his cell phone once it was placed under police authority. 

To its likely detriment, the government failed to make a case for the possibility of automatic deletion or remote wipe (see a discussion about this issue in the comments on this earlier post). Making these arguments to the court would have bolstered its case. On the other hand, given that the search occurred more than six hours after the arrest, there was ample time to procure a warrant, which most likely would have been granted. 

But as courts dabble deeper in Fourth Amendment issues as it relates to cell phone searches, it would be interesting to see the creative techy arguments attorneys come up with. 

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Monday, January 28, 2013

Court allows warrantless phone record search during arrest

Anonymous  4 comments

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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Monday, January 7, 2013

Computer forensic delays a growing problem?

Justin P. Webb  1 comment

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


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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Monday, October 29, 2012

When does one start to have a legitimate privacy interest in one’s phone records?

Anonymous  No comments

In McGreal v. AT & T Corp., 2012 WL 4356683 (N.D. Ill. Sept. 24, 2012), a federal district court held that a phone owner did not have standing to bring a Fourth Amendment unreasonable search and seizure violation as she did not have a legitimate expectation of privacy in the previous owner’s usage records of the phone.

The plaintiff alleged a Fourth Amendment unreasonable search and seizure violation against the Village of Orland Park and some of its employees (The Village defendants). In October 2010, the Village of Orlando Park requested a subpoena for the phone records at issue during the arbitration of the plaintiff’s son’s termination as an Orland Park police officer. The subpoena was issued for the months of February and March of 2010. The phone number for which the subpoena was issued belonged to the plaintiff’s son from May 2009 through March 26, 2010. When the plaintiff’s son was ordered to produce his phone records for February and March 2010, he was unable to provide them because he closed the phone account on March 26, 2010 and transferred it to the plaintiff.

At trial, the plaintiff argued that her status as owner of the cell phone number when the subpoena was issued gave her ownership of the entire record associated with the number.

The District Court dismissed the defendant’s argument and noted that the subpoena mostly sought after “records that were created . . .  before her ownership of the number.” The court stated that for one to have a legitimate privacy interest as to confer standing to object to a search and seizure, one must have some amount of possession and control over the “object” of the search. The court frowned against the transfer of ownership by the plaintiff’s son to the plaintiff and deemed it a bad faith attempt to evade production of the records.

It is not exactly clear how much weight the court gave to the factual circumstances that surrounded the termination and transfer of the phone account. In the absence of bad faith, one may wonder if the holding would be the same.

While the court held that the plaintiff did not have standing to bring a search and seizure violation in regards to the entire phone record, the court held that the plaintiff did have standing pertaining to the phone records of March 26, 2010 through March 31, 2010. This was a period where she had ownership and complete dominion of the phone record. Thus, the Village defendants’ motion to dismiss the Fourth Amendment violation claim for lack of standing was granted in part and denied in part. 

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Tuesday, June 12, 2012

N.J. appellate court finds no reasonable expectation of privacy in cell phone number; distinguishes between "generated" and "assigned" information to reach result

Justin P. Webb  No comments

In State v. DeFranco, 2012 N.J. Super. LEXIS 92 (App. Div. Jun. 8, 2012), a New Jersey appellate court held that under the New Jersey Constitution, an individual does not have a reasonable expectation of privacy in their cell phone number. This might not be head turning (at least it wasn't for me), but I was fascinated by how the court reached such a result - by distinguishing between "assigned" information (i.e. your cell phone provider assigns you a number), and "generated" information (i.e. ISP records, bank records, and other records that would be generated by a third party). I don't think I am convinced by this dichotomy, but first, let's get to the facts.

The defendant pled guilty to first and second degree assault, as well as endangering the welfare of a child, arising out of an incident that had happened years beforehand. The majority of the evidence was obtained by having the victim call the defendant on his cell phone (a number that was obtained by a school resource officer (SRO) and provided to a separate law enforcement agency), and essentially have him allocute on the phone to his previous transgressions.

The defendant's major assertion is that his cell phone number was private, and for the SRO to hand this over to law enforcement was a violation of his privacy. Unfortunately for the defendant, he had provided that number previously for a school directory and for a school trip. The directory noted that the numbers within it were private, especially those unlisted, but the defendant never corrected an error which failed to mark his number as unlisted. Based on this disclosure, the court found that even if it were to find a privacy interest in the cell phone number, the defendant would have waived such an interest. But, on to the merits.

The defendant asserted that a cell phone number was similar to bank records, ISP records, and other information that New Jersey courts had found a privacy interest in. The defendant tried to assert that New Jersey ascribed to an "informational privacy" model, a mode adopted by a New Jersey appellate court, but never explicitly adopted by the New Jersey Supreme Court:
In this regard, we note that in the Appellate Division's opinion in Reid, the panel stated that "New Jersey appears to have recognized a right to what has been called 'informational privacy.'" The panel described informational privacy in the following terms:
 Informational privacy has been variously defined as "shorthand for the ability to control                        the acquisition or release of information about oneself," or "an individual's claim to control the terms under which personal information . . . is acquired, disclosed, and used." In general, informational privacy "encompasses any information that is identifiable to an individual. This includes both assigned information, such as a name, address, or social security number, and generated information, such as financial or credit card records, medical records, and phone logs. . . . [P]ersonal information will be defined as any information, no matter how trivial, that can be traced or linked to an identifiable individual." 
 We adopt this formulation.
But, the Supreme Court did not adopt this "informational privacy" formulation when they heard Reid on appeal, stating that "[t]he contours and breadth of the standard are not entirely clear, and we need not address those issues in resolving the narrower constitutional question before us."

Because the Supreme Court rejected this approach, the court, here, rejected the defendant's attempt to squeeze cell phone numbers into such a privacy regime:
We perceive a significant difference between the "generated information" afforded protection by the New Jersey Supreme Court in its privacy decisions and the "assigned information" that defendant seeks to protect in this case. The ISP records, the long-distance billing information, the banking records, and the utility usage records of Reid, Hunt, McAllister, and Domicz, respectively, constituted the keys to the details of the lives of those to which the seemingly innocuous initial information pertained. While in some circumstances, knowledge of a telephone number might be equally revelatory, here it was not. The number was simply a number. In the circumstances of this case, we do not find that defendant's professed subjective expectation of privacy is one that society would be willing to recognize as reasonable.
Fascinating, but ultimately problematic. On the surface, this seems like a very good attempt to make a true distinction between information types, and the amount of privacy that they should receive. But, there are many "assigned" pieces of information that one would argue should receive privacy protection, such as your social security number, your IP address (I would argue that this case muddles Reid because can you really make a distinction between the assigned IP address and the generated information it could reveal), and your credit card number. State statutes protecting the information previously stated are an attestation to protection of "assigned" information, and make this distinction unconvincing. Another example would be a private encryption key assigned by an internet company. I'm sure readers can think of many more examples.  While the N.J. Supreme Court did not adopt the "informational privacy" approach, I don't think they meant to throw all "assigned" information noted above out the window.

Instead of attempting to make arbitrary distinctions that will ultimately fail to be the catch-all the court would like, this case should have been resolved on third-party doctrine alone, due to the defendant handing over the information previously. While New Jersey has tightened privacy in the third-party sphere, a little judicial restraint here to not make a sweeping judgment would have been a better approach. Is the public really unwilling to accept this privacy interest as objectively unreasonable? I'm not so sure, especially if you only disclose that number to a tight knit circle of friends/relatives.

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