Tag Archives: SCOTUS

Closing the Barn Door… #PDA, #GPS & the #4thAmendment

MP900385971If you’ve been following my Tweets lately (I made it easier to do last week by adding a Twitter module to the sidebar), you know I’ve been spending a lot of time linking you to what I feel are some of the best analyses available on the developing area of how 4th Amendment searches & seizures pertain to new technology.

All eyes are on the Supreme Court again, as they prepare to hear arguments this coming Monday in U.S. v. Jones.  Jones pertains to the use of GPS tracking devices and goes directly to the core issues; 1) What is a reasonable expectation of privacy, and 2) When is a warrant required?  For one such analysis, here’s a link to Erwin Chemerinsky’s view.

We also have the emerging issue with cellphones and PDAs.  This morning, I read a great analogy by Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, who – correctly, in my view – likens PDAs to “…a key to your house. When you have someone’s key, you don’t just have a physical object, you have a way to investigate his life in ways you otherwise wouldn’t have.”  [italics/bold added]

You also need a warrant before you enter.

As an IT representative, I had the most trouble explaining this to laymen.  People who are familiar with technology better understand that the information is everywhere and nowhere.  People with less experience tend to think of information in dimensional terms, or not as the string, but as the cans on either end (what we used to refer to as ‘guzinta/guzouda’).

A good example of this was when I was asked by a representative of the Los Angeles County District Attorney’s Office to examine their pilot program for helping parents protect their kids from predators.  One of the suggestions was to make sure that the family PC was in an open area of the house so that parents would always be able to know what their kids were doing.  They visualized the PC as if it were a telephone, e.g. I call your home number and it rings in your home on one of your physical devices.  They couldn’t grasp that if the child was up to something they didn’t want their parents to know about, they’d likely be doing it at a friend’s house, at school or at the library.  In essence, a person could access their information anywhere, not just on the home PC.

Another example was an instruction to parents to demand that their kids provide them with their email accounts.  Again, under 18 or not, if a child is hiding something, they’ll set up a free email account – and they won’t be telling you about it.

Keep in mind, the above examples are pre-texting and pre-PDA.  Of course, now that we have PDAs, texting, etc., non-tech-savvy-people have a much easier time understanding the transitory nature of information.

Sometimes, though, I envision judges as those same parents.  I guess if I were appearing in front of the Supreme Court, I’d tell them that searching someone’s PDA is akin to searching a 4-drawer file cabinet, but with one thing in common between the two; if the owner locked the cabinet (password-protected the PDA), the government would need a warrant

Now comes the more difficult argument; explaining how a password is exactly the same as a key…

Scotus, meet Ohio; Ohio, meet Scotus

MP900302920 Bravo to Justice Stephen Breyer!  Why?  Because I respect anyone who is willing to admit they don't know or understand something (in this case, Facebook).  Seems it's one of the toughest things for some people to do.  Haven't you been in a meeting where it's obvious the speaker doesn't know something, but rather than admit it, they 'fake' it?

The Canadians made up a whole program around it, "This Hour has 22 Minutes".  The premise is that if they approach someone and question them on any subject – including ones they make up out of thin air – the person will attempt to speak intelligently instead of admitting they know nothing about it.  Lesson learned:

Beware of the Canadians…

Let's hope the Judges in Ohio understand Facebook better than you do…

I've always taken the opposite track.  If I don't know something, I'll state it then and there; "I don't know, but I'll find out the answer and get back to you."  That position is even more accute as an attorney, where mistakes can be deadly to the client.  Some see it as a sign of weakness, but I don't – nor have I ever experienced any negative reaction from a client.

What Breyer is really saying is that, at 72 years of age, he's still open to learning.  I've used a consistent approach since I've been doing this line of work; know what you don't know.  All it really means is, understand where your limits are, then seek out the resources necessary.  Don't fake it and hope to be right later.

I guess it surprised me that Roberts and Scalia had no qualms establishing that neither one of them had a clue to life about how texting works – this while hearing a case about…texting (Quon).  Gentlemen, the answers we were looking for were "router", "gateway" and/or "server".

Indulge me for a moment.  In a case regarding privacy, where waiver might be at issue, do you think it might be of some import for the judges to understand that if a message passes through other devices on its way to its final destination – and any one of those devices may retain a copy of the message – and, stay with me, a party knew that these messages pass through other devices, this knowledge might create a waiver?

I'm not theorizing about Quon specifically, by the way, I'm simply making a point.  Kind of reminds you of that old saying, "Out of the facts, the law arises", not the other way around.

How in the world are we going to solve this problem!?!?!? 

I don't know, but I'll find out the answer and get back to you…

“Welcome to Hell. Here’s your Accordion.”

Shmenge Attorneys – why should you read the fine print if the Chief Justice of the Supreme Court, John G. Roberts, Jr., doesn't

Specifically, he discusses those 'disclaimer' boxes we all have to read and check before being granted access to web sites, but he also mentions those fold-out documents we receive with prescription medications.  Of course, that made me think of accordions…

Hey, it's Friday afternoon after a long week…

The Law of Unintended Consequences

MP900422756 Today is one of those days where I get to blog on a subject that interests me; not quite an e-anything, but possibly something that might matter to us down the road – strategy.  A lot of people, lawyers included, fail to take into account the importance of strategy in a legal context.  Sure, I touched on early case assessment the other day – and that’s definitely an element – but I’m drilling a little deeper than that.  My thought process was piqued by an article in the New York Times regarding the life cycle of cases as they meander up the chain to the Supreme Court.

Let’s put it this way.  If you’re in the camp that stakes out a firm position, then pursues it at warp speed, this article will make you crazy.  But you know what?  It’s reality.  Not every case is appropriate for the SCOTUS, even if they’re willing to grant certiorari.  In fact, they may hear it with the idea of ruling against your position.

Where is the connection to our concerns?  Well, obviously we deal in evidence.  And, although sometimes I think I’m one of the few who believes so, criminal procedure is prominant.  And of course, how many times has the right to privacy been cited?  That’s just for starters.  It’s only a matter of time before one of these cases meanders its way to the top.

I’m thinking, maybe the one where that guy might get two years in prison