Category Archives: Admissibility

…After the Horse has Escaped. #PDA and the #5thAmendment


 

I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key…"

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer – in proper working order – will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation – and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one…

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…

e-Discovery California: Brown Cancels Leno

Continuing what many privacy advocates will see as a disturbing trend against 4th Amendment protections in the state of California (and elsewhere), Governor Brown has vetoed the ‘Leno’ bill, SB 914.  The bill would have required the government to obtain a warrant to search a cellular device upon an arrest.  This follows on the heels of the Supreme Court of the United States declining to grant review of the Diaz case.

In another California case, the 2nd District Court of Appeal cited Diaz in upholding the warrantless search of a digital camera.

These days, if you blink, you may miss another decision affecting the concept of privacy in the United States.

Case Got Your Tongue? I Plead the Fourth!

MP910220941 If things continue like this, we're not going to know what the 4th Amendment stands for, anymore.  In my neck of the woods, a three-judge panel from the 6th District Court of Appeals for California extended the authority that SCOTUS granted in Diaz.  In People v. Nottoli (H035902) [warning: link opens 38-page pdf], the Court summoned the previous 'container' argument and ruled that during an inventory search incident to a lawful arrest, a cellular device (in this case, a Blackberry) found in a glove compartment was fair game for a warrantless search.

What result if Nottoli had password-protected his device?

While California appears to be loosening 4th Amendment protections further, other jurisdictions are tightening them.  In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.), the mere movement of a mouse/touching of a keyboard was enough to trigger an illegal search ruling.  How?  Defendant's PC's screen-saver was enabled.  Nothing was visible to officers who responded to D's home to investigate the possibility of criminal behavior.  By either touching the mouse or keyboard, an officer brought the device out of screen-saver mode, revealing a Facebook wall containing incriminating evidence, resulting in D's arrest.

Citing the 'Plain View' exception, the Court reasoned that, had the Facebook wall been visible, no violation would have occurred.  However, once the officer manipulated the mouse or keyboard to reveal the page, this constituted an illegal search.

What result if Musgrove had password-protected his device?

The dichotomy between these two cases is that the former was a search incident to a lawful arrest and the latter was a search resulting in a lawful arrest (according to facts, I'm giving the officers the benefit of the doubt because only the search was ruled unlawful, not the arrest – yet).

Why does this interest me?  Anyone who has used a Blackberry knows that, under normal circumstances, the device goes into sleep mode and one must manipulate a key, the trackball or the trackpad to bring it out of that mode.

I suspect that plenty more fact-specific arguments are on the horizon…

The 6th Amendment, the Blackstone Ratio & #eDiscovery

GOOBF Card

"Better that ten guilty persons escape than that one innocent suffer."

– William Blackstone, 1783

"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."

– Voltaire, 1749

Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States.  At least, they used to…I think that claim would be up for strenuous debate these days.

But that's why I wanted to bring you this particular case for our examination.  It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them – or something like them – in civil or criminal court.  After all, attorney-client privilege is attorney-client privilege – it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.

One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable…).

Such is the case with defendant.  The government seized certain computer records, and among those records were emails from defendant to his wife – which were subsequently forwarded to defendant's attorney.  Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.

What am I telling you?  First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.

Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system).  We have a job to do, our clients depend on us and we are to zealously represent – and protect – their interests.

File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."

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.

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.

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!

e-Evidence Insights: Key Card ‘Chief’ in IMF Rape Prosecution

MP900431773 When one thinks about acquiring forensic evidence in relation to a criminal rape charge, I doubt electronic evidence would normally be on the list of items sought.  However, a hotel key card is likely to figure prominently in the prosecution of the now-former-IMF Chief, Dominique Strauss-Kahn.  Is the theory set forth by the information gleaned from the key card likely to be convoluted?  It seems likely, however, this serves as an appropriate reminder that eDiscovery is not just about civil cases.