Tag Archives: Supreme Court

Four/Fifths of a Decision by the #SCOTUS

MP900403729OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means…]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned…

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

  • Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
  • Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
  • Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate – and an examination of conflicting rulings – that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password…just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed…

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…

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.