Category Archives: Constitution

Admissibility, Constitution, Criminal Liability, Implementation, Scope

The Star(t) Chamber


 

Take note; the FBI has given itself expanded powers to potentially examine information such as databases or your household trash; based on flimsy – or non-existent – evidence.  This is more of a "be aware" notice as some jurisdictions have been doing this already.

But it reminded me of the movie, The Star Chamber, because there was a scene in which evidence was tossed due to agents searching a suspect's trash and the court later finding that this required a warrant; because at the time of the search, the trash was deemed not to be in the public domain.  Based on several higher-court decisions, it's unlikely one would obtain that ruling today.

So here's my question.  What're they going to do when they're searching someone's computer trash folder?  Will it depend on the location of the machine?  Are discarded electronic files the same as discarded physical trash?  Will I be making this argument in a future court hearing, someday?

At first glance, this may seem specious, but I know many people who never empty their trash folder.

Constitution, International, Law, Technology

We the Twitter of the United Facebook, in Order to Form a More Perfect YouTube…

Popsicle Anyone who still doubts the power of social media should take note of this story.  Iceland is re-writing its Constitution, which would be a big enough deal on its own, however, they're inviting public comment on Facebook, Twitter and YouTube.  Think about the implications of this for a moment.  A process normally reserved for the elites of society, accessible to the general public.

Now, if I can just find a way around the 140-character requirement…

Admissibility, Constitution, Judges, Technology, The Bench

The Bench: Goodbye, 4th Amendment…We Hardly Knew Ye…

MP900382734

I shared this article with my Twitter followers, but upon reflection, I wanted you all to see it.  It's penned by the Chief Justice of the Federal Ninth Circuit, Alex Kozinski – and his law clerk (I mention this because you'll see the relevance in the article).  The subject speaks for itself…enjoy the read.

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Judges, Law, Privilege, Scope

e-Discovery California: The ‘Leno’ Show Seeks to Overturn Diaz: SB 914

MP900443017 If you're not familiar with Diaz, begin here.  In a nutshell, the Supreme Court of California ruled that if arrested, the government may search your cellular device – without a warrant.  Now the California legislature is getting in on the act. 

State Senator Mark Leno (D-SF) has introduced SB 914 (which has already passed in the senate), seeking to overturn that decision and require the government to do things the old-fashioned way; procure a warrant based on probable cause.

I've previously said that the current ruling has the potential to lead us down a dangerous path.  As far as the state of California is concerned, this is a very important piece of 4th Amendment legislation.

Regardless of how this turns out, you already know my advice; set a password for your PDA – and keep it!

Admissibility, Cases of Interest, Constitution, Media

Your Stream of Consciousness Needs a Dam

J0443661 This should probably be obvious to most of us, but in case it isn't, I give you the following advice:  If your public persona directly conflicts with your private one (e.g., you're a hypocrite), perhaps you aren't best suited for social media.  Examples?

1 – A technology-savvy priest who was carrying on an affair – with his second cousin, no less – should probably not host a TV show with 200,000 viewers where he espouses the vow of celibacy (yes, TV is an ancient form of social media…).  By the way; he reportedly ended the affair two years ago, but unfortunately, the evidence never goes away.

Irony of the day?  He also penned the books, "On Camera and Off" and "Life Full of Surprises."

Indeed.  Another reputation stained.

2 – Say you're a cop, you know, that whole, "To Protect and To Serve" mantra?  Best not to describe your occupation on Facebook as "Human Waste Disposal".  Just sayin'.

See, with our 1st example, it's more about embarrassment, but with our 2nd, it's about scuttling criminal trials.  How?

Bias, among other things.  A comment like that suggests a pre-disposition toward the public at large – and might even suggest a little instability.  Notice I used the word, 'suggest'.  I'm not saying it's true, because that doesn't matter.  Never underestimate the power of suggestion.

Unless you think about it very carefully – or experience it yourself – many people simply can't understand how off-hand comments like this can become a very big deal.  But they can – especially in a criminal proceeding where reasonable doubt is the standard.  Oh, and as a bonus, you might even receive a reprimand and/or get fired.

Contemplate it…count to ten…do whatever is necessary to check yourself.  Otherwise, you'll be saying "Dam", alright, but it'll be a homonym.

Cases of Interest, Constitution, Criminal Liability

The Skip, the Bounty Hunter & the Poke(y)

MP900407444 Criminals need love, too.  So much so, that even after committing a crime – and jumping bail – they still can't contain themselves from looking for love on Facebook, MySpace, et al.  You know how you're always hearing the warning, "That intriguing woman named Jenny you're IMing with might actually be a 13-year-old male student from Minnesota"?

Well, it also might be the last name of an anal-retentive, 28-year-old male bounty hunter who's tracking you across state lines.  It also might – as it did in this case – lead to your recapture.

In a 140-character world, I hope you'll take the time to read this story, because you'll get a lot more out of it than you think.  Not only do we see another convergence between the old, in the form of an 1873 Supreme Court case Taylor v. Taintor, and the new, social media, but I'd like you to focus on how much information Jenny gleans just from pouring over the skip's profiles.

If you're purely a data-tech, I understand how you may not care about any of this, but all we ever hear is how everyone wants everyone else to cooperate.  In order to cooperate, it helps to understand how others do their jobs, why they do them the way they do them and what they're hoping to accomplish.  Or, in simpler terms, the psychology of it.

The reality is, if people kept their mouths shut, you'd be amazed how many more cases would remain un-solved.  While this is a criminal example, it applies in a civil context as well.

Loose lips do, indeed, sink ships.  It's just that nowadays, the anchor is attached to social media.

Admissibility, Cases of Interest, Constitution, eDiscovery California, eMail, Privilege, Security

e-Discovery California: “Elementary, My Dear Watson”…

MP900178861 Holmes v. Petrovich Development Co. (Cal. Ct. App. – Jan. 13, 2011)

In this decision from the Third Appellate District of California, the Court found that Holmes’ emails did not fall under the protection of attorney-client privilege (warning – link opens a 40-page PDF of the ruling).

Why?

Because she wrote them on a company computer with the knowledge that the company had a “we own the data” policy.

YMMV (that’s my cute way of telling you, other state laws are contra, e.g. New Jersey’s Stengart).  From that post:

“I suppose if I simply admonish you not to use your company collateral for personal purposes, you’re going to ignore me, but it’s missing the point, anyway.  You can’t un-ring the bell.  Sure, I understand that, in this case, they were forced to return the emails and there was to be a decision as to whether the law firm that read the emails could even continue in their representation, but the bottom line is, the emails were still read.”

A little fun fact?  Holmes never said, “Elementary, My Dear Watson”.

Constitution, Criminal Liability, e-Evidence Insights, eMail

Minority Report: Brandenburg, PreCrime and e-Discovery

I’m not sure whether I can write about the shooting of a Congresswoman and nineteen others apolitically; but I’ll make an attempt to do so. Like most of you, I’ve followed the progression of the case, noting various profiles of the gunman that emerged – and the scramble of politicians to exploit one position or another for political gain. What struck me most was the public – and very prolific – profile of the gunman that has emerged. Usually, we’re dealing with a crime or civil wrong, then we go about the business of accumulating evidence after the fact. However, in this case, there was ample evidence that this person was someone who authorities should have been aware of – or have been made aware of by those who crossed paths with him. There’s just one problem:

We don’t arrest people for crimes they haven’t committed, yet.

But what can – and should – we as a society do in these situations, especially when we have the evidence? I’m not saying this tragedy could have been prevented, but at least this person should have been on a few more radar screens.

Now, as to the politicization of the event, I defer to the 1st Amendment of the Constitution. Rhetoric certainly may rise to the level of incitement. But we have the Brandenburg standard and I see a phrase missing from many of the discussions; “imminent lawless action”. Is Sarah Palin’s 'crosshair' map in the news because it’s relevant or because it pulls more eyeballs and sells more newspapers?

If I were still in law school, I suspect a professor would have posed that question. There is no honest assessment without proper context.

Admissibility, Cases of Interest, Constitution, Criminal Liability, eDiscovery California, Judges, Law, Security, Technology

e-Discovery California: ‘In Toto’, We’re not in California Anymore…

MP900439362 They laughed at the academy…

Do you remember when I said I maintain a password on my PDA?  Do you remember how I said it sucks having a password on my PDA, but I felt it was extremely necessary?  Fine – you don't remember.  Here's what I said this past February:

"My PDA is password-protected.  It's an incredible pain.  I hate it.  It makes things cumbersome.  For all I know, it isn't even that effective.  But you know what?  At least I'm doing everything within my power to protect my client information."

Well, it just became a great decision.  Why?  Because the Supreme Court of California recently ruled that if arrested, the government is entitled to search your cellular device!  The Court seems to be basing the opinion on the concept, misguided as it may be, that a cell phone is akin to a closed container, like a pack of cigarettes (prior 4th Amendment decisions hold that authorities may search containers under these circumstances).  Meanwhile, a warrant is still required to search a briefcase!

Think about it for a moment.  If this trend continues, how long do you think it'll be before this right is extended to portable devices in general?  My next thought is, what if you happen to be driving your desktop PC to the local repairman at the time of your arrest?

As to the issue of password-protection, there's no case law controlling at the moment, so here's my 'ruling'; you have the right to remain silent.  I don't care if I'm threatened with bodily harm – nobody will compel me to give them the password to my PDA (until the day arrives that a court of competent jurisdiction rules otherwise).

The Federal 9th Circuit already allows for warrantless tracking devices, but now this?  So much for "liberal" California.  Try your luck with the Ohio Supreme Court, among others, who disagree with this ruling.

But don't push your luck with the Supreme Court of the United States.  With the current makeup of that body favoring government intrusion over individual protections, there's no Emerald City at the end of that yellow brick road.

Then again, a lot of powerful people carry cell phones – including Supreme Court justices.  Maybe now's not the time for that vacation in wine country…