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Fourth Amendment Feed

June 22, 2012

Courts Remain Divided on Cell Phone Searches

Police_lights400A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).

In Taylor, the police justified the cell phone search of a suspected drug dealer under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.

Read the full article on LTN online.

Image by dogulove

April 24, 2012

Ohio Court Addresses 4th Amendment, Text Messages

20308702.thmThe question of who can challenge a search of cell phone records was before an Ohio court on Aug. 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

Notably, the records acquired contained not only the numbers that had been called, but also the content of some text messages that had been exchanged.

The 17-year-old was eventually found living — by her own choice — in an apartment rented by the defendant.

Continue reading "Ohio Court Addresses 4th Amendment, Text Messages" »

April 02, 2012

Warrantless Phone Tracking Persists Despite Jones

Police_traffic_stop400Must-read article from The New York Times this past weekend: "Police Are Using Phone Tracking as a Routine Tool."

The article notes how local law enforcement agencies are increasingly using cell phone tracking without warrants. As most people know, cell phone companies can provide fairly accurate real-time tracking of the phones. The article quotes a police manual: "One police training manual describes cellphones as 'the virtual biographer of our daily activities,' providing a hunting ground for learning contacts and travels."

In Jones, the Supreme Court held that the use of a GPS tracking device placed on a car without a warrant violated the Fourth Amendment. The challenge is that the opinion from the Supreme Court was disjointed &mdash: with some justices reasoning that the use of the device was impermissible because the device violated privacy concerns.

Continue reading "Warrantless Phone Tracking Persists Despite Jones" »

March 12, 2012

7th Circuit Decision on Warrantless Cell Phone Searches

Smartphone_notify128Judge Richard Posner of the 7th Circuit wrote a very interesting opinion recently addressing the ability of law enforcement to search a cell phone without a warrant. The case is United States v. Abel Flores-Lopez.

Posner noted that "Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a "computer" or not) can be searched without a warrant — for a modern cell phone is a computer."

In this case, the defendant was alleged to be a drug dealer. The defendant had driven a truck containing drugs to the location where he was arrested. After his arrest, the police seized a cell phone from his person and two other cell phones from the truck. Officers searched each cell phone for its telephone number and used that information to subpoena the call records from the service provider.

Continue reading "7th Circuit Decision on Warrantless Cell Phone Searches " »

February 29, 2012

Is Texting Evidence of Criminal Conduct?

Busy_texting400Is texting evidence of criminal behavior? That was the issue before a federal judge in U.S. v. Dukins, Dist. Court, ED Tennessee 2012.

In Dukins, the defendants faced counterfeiting charges. One of the issues was a stop and frisk of the defendants by the police. The officer noted, among other factors, that "it was significant that the men appeared to be texting because, in her experience, scammers are often texting someone inside or outside the store who is acting as a lookout during the scam."

To review, police may make a brief, investigatory stop (a Terry stop) if the police have specific, articulable facts that gave rise to a "reasonable suspicion" that the suspect was engaged in criminal activity. Reasonable suspicion is determined in light of the "totality of the circumstances."

Continue reading "Is Texting Evidence of Criminal Conduct? " »

January 23, 2012

When Kids Hit the Road

The Ohio Supreme Court has, at times, been on the cutting edge of expanding Fourth Amendment protections for digital information from law enforcement intrusion. In December 2009, for example, the Ohio Supreme Court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant. But in a recent opinion, State v. Gould, No. 2012-Ohio-71, the Ohio Supreme Court went in another direction.

The case arose in December 2005. The defendant, after losing his job, moved in with his mother.

Continue reading "When Kids Hit the Road " »

December 28, 2011

Non-lawyer Perspective

Some perspective on e-discovery from non-lawyers.  Dr. Carolina Klien, a forensic psychiatrist from Saint Elizabeth’s Hospital in Washington, D.C., recently published an article in the Journal of the American Academy of Psychiatry and the Law entitled, “Cloudy Confidentiality: Clinical and Legal Implications of Cloud Computing in Health Care.”

Klein confirms what we know in her abstract: “Privacy laws that speak to the protection of patient confidentiality are complex and often difficult to understand in the context of an ever-growing cloud-based technology.” She highlights the challenge facing physicians:  “Just as information management in the digital era was finally getting worked out in legislation and practice, a new modality appeared, one that physicians may be ill-prepared to accommodate.” 

The challenge facing physicians is to adopt cloud-based computing to HIPAA. The attraction of cloud-based computing for medical providers is increased access to patient data through a centralized system. 

Continue reading "Non-lawyer Perspective" »

December 23, 2011

Mobile Security - Tips to Safeguard Your Devices

Mobile devices pose significant risks for sensitive corporate information. As lawyers become more dependent on mobile devices for their practice, they need to be cognizant of the significant security risk these devices present.Thief

ViaForensics recently released its latest 80-page Mobile Security Risk Report.  Both the Android and iPhone risk is amplified by the fact that these devices tend to hold personal information for a long time by design, i.e, nothing is ever truly deleted.

Mobile devices have become easy to hack by remote exploits due to all the applications loaded on them. Hackers can now remotely jailbreak and root a device over the network which essentially provides the hacker with unrestricted access to the entire file system of the target mobile device.

The rush to develop user friendly apps has been at the expense of security. These apps collect and store a tremendous amount of information.  Even apps that appear to ask for no permissions during installation can become a back door to your phone. Check out appWatchdog for an objective analysis of various publicly available mobile apps.

Encrypting information on your device is not foolproof because encryption on both the iPhone and Android can been broken with minimal effort. Additionally, it is not that difficult to extract data from a passcode protected device as well.

To protect your mobile privacy:

1. Be cognizant of what you install on your phone and who the company is that makes the app.

Continue reading "Mobile Security - Tips to Safeguard Your Devices" »

December 16, 2011

The Growing List of Personal Data Available on Facebook

As litigators turn to Facebook for potential evidence on an individual, awareness grows that there is more personal data available on Facebook than many people realize. 

Strict European privacy laws have spawned privacy advocacy websites such as Europe vs. Facebook, which help shed light on personal data about users that Facebook collects and preserves. Unlike law in the United States, the European Union's "right to access" law essentially provides that every citizen has the right to get a copy of all personal data that a company holds about them. Recent personal data access requests to Facebook have identified more than 57 available data groups that can be potential evidence in a case. For example, removed friends (a list of all friends you have "unfriended").

The trick is how to capture and preserve that evidence in a legally defensible manner — either by subpoena, by using collection technology like X1 Social Discovery, or a combination of both. As we learn more about the complex layers of social media evidence, the inherent inadequacy of manual screen capture becomes readily apparent.

See the recent EDD Update post on Social Media meta data


December 14, 2011

The Booming Business of Surveillance Technology

The recent disclosure by Sen. Al Franken (D-Minn.) of the use of Carrier IQ technology by cell phone companies to potentially monitor cell phone use among millions of customers is just the tip of the iceberg into the secret world of surveillance technology. Since 2001 a retail market for surveillance tools has grown from zero into a $5 billion a year business. 

Surveillance technology is broken down into five categories: web scraping, data analysis, interception/monitoring, hacking and anonymity. Here are some of the more interesting technologies:

Finfisher is used by law enforcement and governments to remotely access so called "target systems" giving full access to stored information with the ability to take control of the target system's functions to the point of capturing encrypted data and communications.  

Medav is a speech technology that can be trained to analyze voice communications from a variety of sources and identify topics, keywords and phrases.

HackingTeam is a stealth remote evidence collection technology that can evade encryption on a target system like a laptop and is untraceable.

Continue reading "The Booming Business of Surveillance Technology" »

December 05, 2011

Interesting Spin on GPS Use

TimeclockAs we await the U.S. Supreme Court's decision in the GPS tracking case, the lower courts continue to struggle with this issue. A recent decision from a New York Appellate Court has an interesting spin on the use of GPS tracking devices. 

The case is In The Matter of Michael A. Cunningham v. New York State Department of Labor. In Cunningham, a 20-year state employee (with a history of misconduct) was being investigated for taking unauthorized absences from work and falsifying time records. Previous attempted to follow the employee after he left work through traditional surveillance had failed, so the investigators obtained help from the New York Office of the Inspector General (“OIG”). The OIG, among other activities, placed a GPS on the employee’s car.  Information obtained from the GPS device helped the OIG to conclude that the employee had submitted false information about hours worked and travel.

Continue reading "Interesting Spin on GPS Use" »

Rosen Book: Tech & Constitution Clashes

ConstitutionJeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Continue reading "Rosen Book: Tech & Constitution Clashes" »

December 02, 2011

TMI or Life Saver?

HospitalI learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

Continue reading "TMI or Life Saver?" »

November 25, 2011

GPS Device OK'd in State Worker's Car

GpsJohn Caher reports today in the New York Law Journal that the New York State Inspector General's placement of a GPS tracking device on the private vehicle of a government employee suspected of falsifying attendance records did not violate the employee's rights. But, he notes, the appeals panel was "deeply divided." 

"The Appellate Division, Third Department, which was previously reversed when it upheld the warrantless use of a GPS device to track a criminal suspect, said the electronic surveillance was justified and reasonable in this civil matter because traditional methods, such as following the employee, had been thwarted.

But a two-judge dissent said the government went too far and tracked the employee's movements not only when he was supposed to be working, but when he was on a family vacation."

Read the full story here.


November 10, 2011

Supreme Court Arguments in U.S. v. Jones

The Supreme Court heard arguments on Nov. 8, in the GPS tracking case, United States v. Jones. My article is  here.

November 09, 2011

Update on SCOTUS GPS Arguments

PoliceHere are some of the news reports and resources regarding yesterday's SCOTUS arguments (See also, Joshua Engel post, below):

• Engel's article is here

• "Citing Orwell, Supreme Court Appears Wary of Police GPS Surveillance," by Marcia Coyle, The National Law Journal.

Which Way Privacy?" by Dahlia Lithwick, Slate.

• Supreme Court documents here. Argument transcript

• SCOTUSblog post by Lyle Denniston. 

• The Volokh Conspiracy post by Orin Kerr.

• Cato@Liberty post by Jim Harper. 

• Electronic Frontier Foundation case history  here.

Image: Clipart

November 08, 2011

SCOTUS Arguments Today in U.S. v Jones

The United States Supreme Court is scheduled to hear arguments today in United States v. Jones, 

The court will consider whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor his movements on public streets violated the Fourth Amendment. The briefs, including 13 amicus briefs, are gathered on Scotusblog. For a little perspective, you can read my take from last year on how James Bond relates to this issue here.  

I will have more when the transcripts are released.

October 24, 2011

Yale Team Addresses GPS Limits

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

GpsPriscilla Smith, Nabiha Syed, David Thaw and Albert Wong are the authors of "When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches," 121 Yale. J. Online 177 (2011).  I highly recommend it.

The authors argue that “the use of GPS surveillance for prolonged monitoring without a warrant cannot pass muster under the Fourth Amendment.” They suggest that in evaluating new technologies, “wherever a new technology carries the potential for police abuse, the Court has allowed its use only as guarded by the warrant requirement, placing a check on the unlimited discretion otherwise afforded officers.” 

Continue reading "Yale Team Addresses GPS Limits" »

October 18, 2011

Cell Phone Symposium @ Whittier Law School

Cell phones will be the focus of a Symposium on November 3, 2011 at Whittier Law School.  More information can be found here.

The Symposium is sponsored by Whittier Law School's Center for Intellectual Property Law and Law Review.  Topics include "the privacy, regulation, economics, and intellectual property issues surrounding smart phone technology."

I will be speaking on the issue of whether the police can constitutionally compel a person to provide a password or encryption key for cell phones.  This issue has been discussed previously on this blog.  If you are in California, please stop by and join the discussion.  CLE credits are also available.  

Here is the basis for my talk:

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature.  Most verbal statements that reveal the contents of a person’s mind are considered to be testimonial. 

Continue reading "Cell Phone Symposium @ Whittier Law School" »

Police GPS Action Rejected by Ohio Court

The state courts in Ohio have been at the forefront of protecting electronic data from police searches.  In 2009, for example, the Ohio Supreme Court set a significant precedent by holding that police could not search a cell phone incident to an arrest.  You can read my detailed take on that decision here.

Last month, an Ohio Appeals Court issued what could become a significant opinion on the issue of GPS tracking.  This is an issue soon to be decided by the U.S. Supreme Court.

The case is State v. Sullivan. In this case, officers were investigating a series of home break-ins.  Undercover officers placed a GPS tracking unit under the bumper of a suspect’s Honda Civic. No warrant was obtained. While following the movements of the car on a laptop, police learned that a home invasion had been committed in the vicinity where the car had been tracked.  The car was subsequently tracked until it arrived back at the defendant’s home.  Property taken during the home invasion was recovered from the Honda Civic.

Continue reading "Police GPS Action Rejected by Ohio Court " »

October 11, 2011

Feds Cite ECPA to Justify E-mail Snooping Without Warrant

SnoopThe Electronic Communications Privacy Act is again in the news as the The Wall Street Journal reports that the federal government used the act to justify the secret gathering of e-mails from WikiLeaks supporter Jacob Appelbaum.

Under the ECPA, law enforcement agencies can secretly gather a user's electronic records from internet service providers (ISPs) without first obtaining getting a search warrant or even a showing of probable cause.

In this case the ISPs, Google and, brought a challenge in court to let the user at least be informed of the collection of his electronic data. "Sonic said it fought the government's order and lost, and was forced to turn over information," and both ISPs "pressed for the right to inform Mr. Appelbaum of the secret court orders," WSJ reported.

The article notes that several court decisions that have challenged the law, and questioned whether it violates the Fourth Amendment.


So... Apple released iPhone 4S

Ip42 So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

Continue reading "So... Apple released iPhone 4S" »

September 26, 2011

Apple joins the DDP

Binary Apple is throwing its weight into the Digital Due Process coalition. The Cupertino, Calif.-based company announced it joined the group calling for modernization of the Electronic Communications Privacy Act. Other members include Amazon, AT&T, Google, Intel and Microsoft.

The ECPA was enacted in 1986 and is little changed in the years since. Privacy advocates argue that because the ECPA does not address such issues as cloud computing, social networks and other current technologies, police agencies have been able to gather data users reasonably expected to remain private.

Apple and the other members of the DDP are calling for Congress to amend the ECPA to add safeguards for individual and corporate data in today's technology environment.

CNET's coverage here.


September 14, 2011

U.S. v. Jones to Supreme Court

It may be impossible to overstate the potential importance of the upcoming Supreme Court case looking at the warrantless use of GPS tracking devices by law enforcement. Police2 The case is United States v. Jones, and there is a nice collection of documents on scotusblog.

I have written some articles about this issue, as well as posting on this blog and the Stockycat blog.  For those looking for a more detailed summary of my views, you can read this law review article I wrote last fall.

(Yes, sometimes hyped cases before the Supreme Court fizzle or get decided on more narrow grounds.  So please take that into account when you continue reading.)

The significance of this case rests, in my opinion, on the fact that this is the first time the Supreme Court has been forced to address whether the aggregation of data can pose significant and unique privacy concerns. In other words, is there a difference between limited observations of people in public, and 24 hour comprehensive surveillance?  This is one of the first opportunities for the court to examine how to apply mid-20th century legal principles to 21st century technology.

Continue reading "U.S. v. Jones to Supreme Court" »

Engel on Thursday Philly Panel

I will be speaking on the constitutional issues surrounding social media sites at Rosemont College's Constitution Day.

Here is the description:

We the Ppl of the Internet @ge:  The intersection of the Constitution and social media.

Presented by: Joshua Engel, J.D.

Thursday, September 15th at 7:00 p.m. in Lawrence Auditorium

If you have ever tweeted, flickred, statused, tumblred, liked, poked, checked in or linked in, you'll definitely want to be at this event! How far does your freedom of speech go? What constitutes unreasonable search and seizure online? Can law enforcement officials use your e-mail or social networking sites to get information they are looking for?  Join us for a discussion about law and ethics, and learn what role they play in how the Constitution interacts with your favorite social networking and social media sites.

 If you are in the Philly area, please stop by, say hello, and join in the conversation.

September 08, 2011

Northwestern Journal Addresses Privacy

A new article in the Northwestern Journal of Technology and Intellectual Property examines an important e-discovery issue for workers. 

The article, by professor Louise Hill, is titled "Gone but Not Forgotten: When Privacy, Policy and Privilege Collide." You can read it here.

Hill examines whether employees in a workplace can assert confidentiality over personal e-mails sent and received from workplace computers and e-mail accounts. In particular, she examines whether communications between employees and their personal attorneys are protected by the attorney-client privilege. 

Continue reading "Northwestern Journal Addresses Privacy" »

August 29, 2011

8,000 Menacing Posts

An August 28  article by Somini Sengupta highlights the intersection between free speech and social media. The New York Times article, "Case of 8,000 Menancing Posts Tests Limits of Twitter Speech,"  involves efforts by William Lawrence Cassidty to harass a woman, Alyce Zeoli, by posting thousands of threatening and defamatory Twitter posts. He was charged with online stalking, on the theory that his posts caused emotional distress to the victim. 

Cyberstalking laws are, accordingly to the article rarely enforced. The prosecution in this case raises a question about the precise nature of information posted on social networks -- are they better viewed as private communications between parties, or public statements like newspaper articles. 

Continue reading "8,000 Menacing Posts " »

August 25, 2011

ID Scanners Present Privacy Concerns

To gain admission to your favorite watering hole, you may soon have to allow your driver's license to be scanned and at some places, your picture taken too!  Hand-held scanners that read your driver's license are taking off. Bars around the country are using this device to scan customers in order to weed out the troublemakers and check IDs. The information collected can easily exported to excel and/or shared with other bars and vendors via the internet. To be able to freely share someones name, age, date of birth, address,  drivers license number, and associate drinking habits is a cause for concern.  

Driver In fact, some states don't consider your driver's license information private. Under the rational of public safety, the state of Florida made $63 million last year selling the personal information in the DMV database. It is interesting that judges and law enforcement officers can request to be excluded; yet regular citizens can’t make the same request.

Because there are currently no regulations re collecting and/or sharing this type information (some states do restrict it), the privacy and identity theft concerns are real. Additionally, it is a new data source for law enforcement too. I ran into this in Las Vegas recently and declined the offer to be scanned and photographed and instead choose an establishment that respects privacy.


August 23, 2011

A New Spin on Predictive Coding: Predictive Policing

Police The New York Times reported that the Santa Cruz (Calif.) police began testing a new computerized prediction method for crimes called predictive policing.

Just like predictive coding in e-discovery, data is fed into a computer and by analyzing and detecting patterns in years of past crime data, it generates crime projections about where crime is likely to occur in the future.

Sound like the PreCrime unit in the movie The Minority Report is closer than we think!  Whats next in e-discovery after predictive coding - search "precogs"?


August 18, 2011

How Long Can Gov't Keep DNA?

Dna A recent article in the Virginia Law Review caught my eye and is interesting reading for anyone concerned with long-term data preservation. 

The article, by Penn State Professor David Kaye, is titled, “DNA Database Trawls and rhe Definition of a Search in Borian v. Mueller. 

As most people know, the government collects DNA profiles from convicted offenders (and, in some cases, when people are arrested), and stores those DNA profiles in large databases. The databases are searched for matches against DNA samples recovered at crime scenes. The article addresses the question:  how long can the information be kept in the database?  In other words, “Is there no way an offender can escape ‘lifelong genetic surveillance?’ ”

The First Circuit Court of Appeals held that there is essentially no limit to how long the government can keep DNA information in databases.  That case was Borian v. MuellerThe article observes that the First Circuit concluded that a check of the database does not constitute a “search” within the meaning of the Fourth Amendment and, accordingly, is not subject to any constitutional limitation.  This is because, under this interpretation of the Fourth Amendment, once the government acquires the DNA information, every review of the database constitutes only a minimal invasion of a person’s privacy. 

The broader e-discovery issue involves reuse of data.  Once the government lawfully acquires data, can the government reuse that data?  Kaye suggests that, in most instances, the answer is usually “yes.”  He writes:  “a simple rule allowing reuse of data works well enough as long as the additional interests in the privacy of the information are either outside the scope of the Fourth Amendment or too tenuous to justify the usual need for individualized suspicion or warrants.”


August 15, 2011

Maryland Decision Raises New Cell Phone Issues

Cellphone A recent decision from a Federal District Court in Maryland raises new issues about the ability of the government to obtain location data from cell phones without a warrant.

The case is In Matter of an Application of United States of America for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone

In this case the issue before Magistrate Judge Susan Gauvey was whether the government could acquire from cell phones to aid in the apprehension of the subject of an arrest warrant. Significantly, the government did not claim that the subject of the monitoring was attempting to flee, or that the information would be evidence of any crime.

I have written a bit about warrantless GPS tracking used to solve crimes.  (See here and here, for example.)  But this is different. The court described this effort as something new: “the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution.”

The court concluded that if the government seeks to use a particular cellular telephone as a tracking device to aid in execution of an arrest warrant, the government must obtain a warrant. This is because the tracking would infringe upon a person’s privacy interest both in his location as revealed by real-time location data and in his movement where his location is subject to continuous tracking over an extended period of time. The court was especially concerned that the electronic surveillance would reveal locations in private locations, like a home, and would go beyond what could be obtained by “physical surveillance or tracking techniques.” 

Continue reading "Maryland Decision Raises New Cell Phone Issues " »

July 27, 2011

Supreme Court to Decide GPS Case

The United States Supreme Court is going to decide next year whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor its movements on public streets violated the Fourth Amendment. The case is United States v. Jones, Supreme Court Docket No. 10-1259.   (You can read my various takes on this issue here.)

TruckA related —  but equally important —  question involves who has standing to challenge GPS tracking.

This issue was raised in United States v. Hernandez (Fifth Circuit No. No. 10-10695, July 18, 2011).

  In this case, federal agents inserted a GPS device on the defendant’s brother’s truck. The agents later learned through a wiretap that the defendant would be driving the truck to pick up drugs. Using the GPS device, the agents tracked the defendant, stopped him, and discovered 20 pounds of methamphetamine.

Continue reading "Supreme Court to Decide GPS Case " »

July 19, 2011

Searching Student Cell Phones

The issue of when officials can search a student's cell phone is an emerging e-discovery issue. This is illustrated in the recent case   N.N. v. Tunkhannock Area School District, Civil Action No. 3:10-CV-1080, United States District Court, M.D. Pennsylvania.

Sexy In this case, a student at Tunkhannock Area High School violated a school policy requiring cell phones to be turned off and stored in lockers during the school day by placing a call from her cell phone while on school property. A teacher confiscated the phone. School officials then examined the contents of the cell phone and discovered what appeared to be inappropriate photographs stored in the phone's memory. 

The phone was turned over to the police. The court opinion states that, “Aside from one photograph taken by a female friend, the photographs were taken by [the student] alone, and were intended for the sole consumption of herself and her long-term boyfriend. The photographs were taken off school property, were saved to the cell phone, were never e-mailed or uploaded to the internet, and were not shared with other students.”

Continue reading "Searching Student Cell Phones" »

Rupert Murdoch Scandal = e-Discovery Story

The scandal of Rupert Murdoch, the world’s most powerful media mogul, is essentially a story of e-discovery, the seamy dark side of e-discovery that operates underground and in violation of the law —  the world of hackers.

Spy The e-Discovery Team blog this week explains what phone hacking is, a few of the most common ways hackers do it, and how you can protect yourself. I also go into the ethical duties of lawyers to act competently to preserve confidentiality and the new ABA proposed model rule 1.6(c) which says:

(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

Finally, I include a link to one of the funniest, and most insightful comedy routines I've ever seen Stephen Colbert do reporting on the Murdoch scandal. He concludes his bit with a report of his hack into the voice mail of Rupert Murdoch's attorney. Could this happen to you?

July 14, 2011

Smile You're on Biometric Camera!

Photo The Wall Street Journal reported that police agencies in several states are getting biometric technology attached to iPhone that can recognize faces, scan irises and collect fingerprints. Made by BI2 Technologies, this device can scan the suspect and then query different databases for matches. The technology can also be used to identify missing children and sex offenders.  

The technology goes beyond law enforcement and could also be used by retailers, etc. to profile customers as they walk in the door. Biometric intelligence and identification technology for facial profiling has obvious privacy and constitutional issues that need to be sorted out by the courts.  For now, the next time you see a law enforcement officer holding an iphone up to you, be sure to smile, because your on biometric camera!!


July 12, 2011

British Phone Hacking

Here's a brief comment on the British cell phone hacking scandal, and how it has caused me to reconsider what I thought was an established issue. By now, everyone should know the basic outlines of the scandal. Some of the best coverage is on the Guardian website.

As the coverage explains, the phone “hacking” was not very sophisticated. Supposedly, the paper used a caller ID spoof to access cell phone voicemail boxes. This access was possible because many early voicemail systems used caller ID instead of a password. Later, the paper was able to access messages because individuals did not change the default password.

SBritishphoneome more recent news reports suggest that reporters may have bribed police officers or used other potentially illegal methods to obtain information, including data obtained from cellphone-tracking technology. However, I want to focus on the voicemail password implications of this story for the Fourth Amendment analysis.

From the Fourth Amendment perspective, the Supreme Court has famously held that a search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." Katz v. United States, 389 U.S. 347 (1967). 

Continue reading "British Phone Hacking " »

June 29, 2011

Is Microsoft Listening to Your Skype Calls?

Just when we had enough stories about technology that can turn off your cameras phone during events, courts allowing law enforcement to search your phone during routine traffic stops or tracking technology tied to Skype; now it is revealed that Microsoft filed a patent application back in 2009 called Legal Intercept that can silently record communications on VoIP networks such as Skype.

It has been proffered that the legal rational is to make Skype CALEA capable. The Communications Assistance for Law Enforcement Act requires telecommunications carriers and communication equipment vendors make its networks available for surveillance purposes by federal law enforcement agencies. 

Whatever the reason Microsoft may have for this back door voice interception technology, the privacy and free speech implications are ominous.

Our Orwellian big brother has been busy!

Hat tip to Jeffrey Brandt of PinHawk Law Technology Daily Digest.

June 28, 2011

Will Apple Turn Off Your iPhone Camera?

Football Another spin on camera phones has recently surfaced with dramatic privacy and free speech implications.

Mail Online reports that Apple is developing software that will sense when a Smartphone user is trying to record a live event, and then switch off the device's camera. Infrared sensors installed at the venue will prevent pictures from being taken. Apparently, broadcasters are upset that spectators are posting footage of events when they have bought exclusive rights. 

This technology could potentially be used by governments to stop demonstrators from taking pictures of protestors which would have dramatic free speech consequences. We could start to see camera dead zones where photos would not be allowed; like at security check points or near police vehicles. The camera phone is an amazing new democratizing force that has political consequences around the globe.

Do you want big brother censoring when and where you can take pictures with your phone?


Supreme Court to Decide GPS Case

3585353332_4c6e5e4410_m The Supreme Court on Monday agreed to decide whether the warrantless use of a GPS tracking device on a defendant’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  The case is United States v. Jones, Supreme Court Docket No. 10-1259. The D.C. Circuit had previously held that the use of a GPS tracking device without a warrant violated the Fourth Amendment.

In this case, the defendant was under investigation for suspected drug offenses. As part of the investigation, officers installed a GPS device on his vehicle and tracked his movements for four weeks.

Continue reading "Supreme Court to Decide GPS Case " »

June 23, 2011

Will Spy Tactics Backfire/

Ispy Today’s Op-Ed by David Shipler in The New York Times by is highly recommended reading for anyone concerned with electronic discovery in criminal investigations.

In this piece, Shipler points to some recent Fourth amendment decisions and positions taken by Congress, including GPS tracking to argue that the Fourth Amendment is being steadily eroded. He writes: 

"These decisions “further erode the privilege of privacy that was championed by Congress and the courts in the mid-to-late-20th century, when the Fourth Amendment’s warrant requirement was applied to the states, unconstitutionally seized evidence was ruled inadmissible in state trials, and privacy laws were enacted following revelations in the 1970s of domestic spying on antiwar and civil rights groups.”

Shipler suggests that current efforts to undermine the Fourth Amendment will one day be viewed similarly to efforts in World War I and following Pearl Harbor — efforts that are not seen today as proud moments in American History.



June 16, 2011

Supreme Court on Searches (Davis v. U.S.)

The Supreme Court today held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule –- even when the court later overrules the precedent. The case is Davis v. United States.  You can read it here.

Police This case involved a major shift in the law about when police could search a vehicle after the arrest of the driver.  In New York v. Belton, 453 U. S. 454 (1981), the Court permitted the police to search the passenger compartment of a automobile incident to arrest of a recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the arrest. 

In 2009, in Arizona v. Gant, 556 U. S. ___ (2009), the Supreme Court overruled Belton.  The court adopted a new rule that permitted the police to search an automobile after the arrest of an occupant only if the arrestee was within reaching distance of the vehicle during the search.  (The Court also permitted the search of a vehicle if the police had reason to believe that the vehicle contained evidence of the crime of arrest.)

Continue reading "Supreme Court on Searches (Davis v. U.S.)" »

June 14, 2011

New Hampshire Court: Comcast Can Release IP Address

The New Hampshire Supreme Court recently held that internet users have no reasonable expectation of privacy in subscriber information held by internet service providers (ISPs). The case is State v. Mello.

Comcast This case was closely watched because, as this article explains, the N.H. Supreme Court has often been willing to interpret its state constitution to provide greater protections of individual rights than the federal constitution. The defendant in this case was charged distribution of child pornography.  He was caught in an undercover police operation when a detective posed online as a 14-year-old boy. The defendant exchanged e-mails and chatted with the detective, and sent to the detective pornographic images depicting male children. 

The detective, using the defendant's e-mail address, determined the defendant's IP address was assigned to Comcast, a New Jersey company. The detective then obtained a search warrant for the defendant’s subscriber information. Using this information, the detective obtained an additional search warrant for the defendant's home computer, and seized evidence that led to his indictment. 

Continue reading "New Hampshire Court: Comcast Can Release IP Address" »

Another Reason Not to Work From Your Car

United States Magistrate Judge Russell Vineyard has issued an opinion that permitted law enforcement to obtain a warrant for a laptop found in a “mobile office.” The case is United States v. Adigun, 2011 U.S. Dist. Lexis 60310 (N.D. Ga. May 4, 2011). (Sorry, I can’t find a public link to the opinion.) The defendants face various fraud and conspiracy charges in connection with an alleged credit card fraud and identity theft ring.

In 2007, a Georgia sheriff’s office investigator, using information obtained from American Express, obtained a search warrant for one of the defendant’s apartment and a car. The car had been driven to a location to pick up a fraudulently obtained credit card, and the suspect ran when confronted by the police. The warrant permitted the seizure of computers, including a laptop computer the police had observed on the front seat of a vehicle. The affidavit seeking the warrant asserted that a “fraudulent credit application . . . was made via internet connection and was very likely done using the laptop visible in the [car].”

The investigator testified before a magistrate that one of the suspects “appeared to be using the [car] as a ‘mobile office’ based on the way he had set up the laptop, the fact that it was surrounded by a day planner and ‘all kinds of paperwork’ in the front seat.” 

The defendants challenged the search of the computer, based on the fact that the affidavit in support of the search warrant did not allege that one of the defendants used the laptop in the vehicle to commit crimes.  Any computer could have been used, they suggested. The court rejected this argument, relying upon the statements about the application being made over the Internet and the car appearing to be a mobile office to establish a nexus between the laptop and the suspected criminal activity. 




May 16, 2011

The Tipster

The First Circuit Court of Appeals decided an interesting case last week on the value of passwords.  The case is United States v. D’Andrea.

Informant In this case, a woman, whom the court refers to as (the "Tipster," called a child abuse hotline operated by the Massachusetts Department of Social Services. The Tipster, who wished to remain anonymous, stated that she had received a message on her mobile phone containing photographs of the defendants performing sexual acts on the Tipster’s eight-year-old daughter.  She provided to the agency a certain phone number and password used to access the photos.

Continue reading "The Tipster" »

May 09, 2011

Hidden Digital Records

Police2 News that the iPhone created a file with historical location data has been a significant news story the past few weeks. According to news reports in the United States and Europe, researchers announced towards the end of April 2011 that they had discovered a file created by the iPhone when it syncs with a user’s computer containing historical location data. An LA Times editorial captured the mood nicely:

"The most talked-about feature of Apple's iPhones and iPads these days isn't a clever new software application. It's a hidden digital record on every device of the locations where it has been used — a numerical travelogue that effectively traces its owner's movements by noting the times and places it has been used."

Credit for the discovery was claimed by Alasdair Allan, senior research fellow in astronomy at the University of Exeter, and writer Pete Warden.  The original announcement of the discovery is, I think, here.

On a recent Lawyer2Lawyer Podcast, I suggested that law enforcement may have known about this file for some time. 

Usually, law enforcement and national security agencies like to keep techniques quiet.  I can’t rely on my personal experience with investigations because that is, of course, confidential.  But I wanted to provide some links to reporting about this possibly long-standing use.  In a PC Magazine article, one forensic examiner claims to have accessed the file “hundreds” of times for law enforcement investigations.  An article by CNET also raised the possibility that law enforcement was aware of this file before, and had obtained information users through forensic analyses of their computers.  And computer forensics expert interviewed by NPR stated, “I really don't see it as a problem, I see it as, you know, a bonus. We're making the life of law enforcement easier.”

The fact that law enforcement (somewhat) admits to having known about this long ago should make everyone wonder what else they know about that the public does not.



May 04, 2011

A Bit More on Cell Phones....

Arrest A little bit more on cell phones, searches incident to arrest, and passwords.

In this post, I tried to briefly answer the question that keeps recurring about police efforts to search cell phones when they arrest people:  "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"

A new law review article on this issue by Professor Adam Gershowitz of the University of Houston was brought to my attention. Gershowitz is one of the first to study the unique legal implications of smartphones.  Way back in 2008, he examined the search incident to arrest doctrine and cell iPhones and asked, “What happens . . . when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, e-mails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use?”  His answer was yes.  (My answer, two years later, was maybe no.)

Gershowitz’s new article is titled: “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine?  It will be published in the Iowa Law Review, and is available online here.

In this article, Gershowitz argues that an arrestee to disclose his password is a statement covered by the Fifth Amendment right to remain silent.  This is because knowledge of the password can demonstrate control and possession of the electronic device. 

Continue reading "A Bit More on Cell Phones.... " »

May 02, 2011

That's Incriminating!

Police2I recently wrote an article on  police searches of cell phones that was published on the LTN website. It focused on whether the police can search the contents of a cell phone when they arrest someone — even for a minor traffic offense.  

One of the commenters asked an excellent question:  "What if you need a passcode to enter your cellphone and refuse to provide it to the police to search the phone?"

The answer depends on whether the Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide the passcode. The Fifth Amendment prevents the government from forcing a person to make any statements that can be incriminating.  

Restating: in order for the Fifth Amendment to apply, there must be a (1) statement that is (2) incriminating.

Continue reading "That's Incriminating! " »

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