Tag Archives: Constitution

Don’t Do the (Cyber)Crime if you Can’t Do the Time

The ABA Journal Tech Report has a comprehensive examination of cyberwarfare from their May 2012 issue.  It examines the perceived attorneys' role, Constitutional limitations and international law issues.  There are contributions from a host of experts, including some very polarizing figures, like John Yoo.

Hey, you know there can be no valuable debate unless you hear out assenting and dissenting views, right?

Be warned; this is not a light read, by any means…

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…

Does this ‘Border’ on Unconstitutional?

MP900400680 When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure.  To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search.  Lawyers are well aware of this, but what about the general public?

Two issues are triggered here.  The first, privacy, I've written about before (see my International category).  Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).

However, today's discussion is a little more nuanced than that.  It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device?  Well, the short answer is, yes.  Is that proper?  Do you agree?

I suppose this might bring new meaning to the retort, "Don't touch my junk!"

Say you have a password-protected file with your personal banking, credit card and other financial information on it.  Now let's go one step further.  Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime?  Two steps further?  You keep both personal and corporate information on it (does that sound like you?).  What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?

I'll tell you the difference.  When you show up at the border, it's implied consent.  You waive your right to protest.  That's how the law stands now.  However, that may – or may not – change, subject to the outcome of the latest challenge.

In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.

e-Discovery California: Reasonable Search: SCOTUS Decides Quon Case

MP900443158 We've been waiting for the decision on Quon to clarify Constitutional issues of employee privacy while using an employer-supplied electronic device.  Bottom line: by unanimous decision, the Supreme Court ruled that, under the facts of this case, the search was reasonable and Quon had no 4th Amendment expectation of privacy.  I say "under the facts of this case" because the Court ruled on narrow grounds.

Justice Anthony Kennedy stated quite eloquently, "Because the search was motivated by a legitimate work related purpose,
and because it was not excessive in scope, the search was reasonable."

In my opinion, that's a beautiful sentence.