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Can consent to search be obtained via Google Translate?

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Can consent to search be obtained via Google Translate?

Technological advances over the past decade have occurred at an unprecedented rate. As a result, there have been drastic improvements in machine learning and artificial intelligence technologies in recent years, making many science fiction fantasies a newfound reality. A great example of this is Google Translate, a tool that instantly translates speech.

Within the last few years, Google Translate has become widely available as a free online and mobile app and provides the immediate ability to translate words, both spoken and written, from one language to another. Because it’s so easily accessible, it should come as no surprise that it was recently used by law enforcement to interact with a suspect, resulting in a case that addressed an interesting constitutional question. Specifically, earlier this month, in U.S. v. Cruz-Zamora, the United States Court for the District of Kansas considered the issue of whether a non-English speaking individual can consent via Google Translate to a search of his car by law enforcement.

The case arose from a traffic stop which was initiated because of the defendant’s suspended registration. At the beginning of the encounter, the officer realized that the defendant spoke very little English. He then moved the defendant to his patrol vehicle and began to communicate with him using Google Translate via his car’s laptop. While speaking to him using Google Translate, the defendant allegedly gave the officer permission to search his vehicle, which the officer did, leading to the discovery of illegal drugs.

The defendant later alleged that the search was unconstitutional. During the suppression hearing, the officer admitted that a live translator would have been preferable but none were available. He also admitted that the defendant didn’t always understand his questions.

Two professional interpreters also testified at the hearing, and after reviewing the video and audio recordings of the encounter, both opined that it was clear that the defendant was often confused when responding to questions and didn’t always seem to understand what was being asked of him. They also testified that Google Translate failed to take context into consideration and thus “should only be used for literal word-for-word translations.”

In its opinion, the Court initially explained that it was the defendant’s contention that “any evidence obtained as a result of the car search should be suppressed because he did not understand (the officer) and therefore could not knowingly consent to the search.”

Next, the court determined, based primarily on the testimony of the professional interpreters, that “while it might be reasonable for an officer to use Google Translate to gather basic information such as the defendant’s name or where the defendant was travelling (sic), the court does not believe it is reasonable to rely on the service to obtain consent to an otherwise illegal search.”

The Court explained that although the audio and video recordings of the encounter showed that the defendant had a basic understanding of the questions asked of him, the testimony of the interpreters and a review of the transcript indicated that the defendant’s purported consent to search was invalid. The Court concluded that it did “not find the government ha(d) met its burden to show defendant’s consent was ‘unequivocal and specific and freely and intelligently given.’’

Next the court turned to an alternative argument made by the government: that the good faith exception applied, and thus the evidence should not be suppressed. Specifically, the government contended that the officer acted in good faith since he reasonably relied on Google Translate and its translations. In opposition, the defendant asserted that the officer could not “reasonably rely on a mistake of his own making.”

The Court agreed with the defense, and excluded the evidence:

“(T)he good-faith exception does not apply as it is not reasonable for an officer to use and rely on Google Translate to obtain consent to a warrantless search, especially when an officer has other options for more reliable translations. The government has not met its burden to show defendant’s consent was “unequivocal and specific and freely and intelligently given,”…and the court will not interpret defendant’s compliance with Wolting’s instructions to stand by the side of the road during the search as implied consent, considering the totality of the circumstances. The court finds that application of the exclusionary rule is appropriate in this case, and therefore grants defendant’s motion to suppress.”

The lesson to be learned is that while the technology has dramatically improved in recent years, it’s often far from perfect. Tools like Google Translate are improving by leaps and bounds, but it is ill-advised to indiscriminately relying on them when comprehension is crucial and carries legal ramifications. Technology is not a panacea; it merely supplements hard-earned technical skills and expertise - it doesn’t replace them.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


Round Up: Legal Beach Reads, Alternative Fees, Cybersecurity, And More

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from May 2018:

 


Maine Bar on use of social media evidence for litigation

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Maine Bar on use of social media evidence for litigation

The phenomenon of social media has infiltrated all aspects of our lives, so it’s not surprise that social media evidence is now a pivotal tool in litigation. Juror use of social media has resulted in mistrials across the country for more than a decade now. And trial attorneys are increasingly mining social media for evidence and researching jurors online.

Not surprisingly, the rising practice of using social media information during litigation caught the attention of ethics committees some years ago, and the first opinion on this issue was handed down in 2009. Since then, I’ve regularly covered these opinions in this column, and recently realized that I’d overlooked one that was issued by the Maine Bar’s Professional Ethics Commission last November: Opinion 217 

In the opinion, the Commission addressed both the ethics of mining social media for evidence and researching jurors online. Another issue covered was whether lawyers may connect with judges or quasi-judicial officers on social media sites.

At the outset, the Commission acknowledged that defining social media is a difficult task, since “(t)he functionality, technology and content available on the platforms that make up “social media” likely will continue to evolve dramatically in the future.” Even so, it attempted to offer a rather broad definition, defining social media networks as sites that “are used primarily for connecting socially with multiple ‘friends’ and for sharing a wide range of personal, professional and editorial information using text, links, photographs and video,” while specifically excluding sites that “lack the type of sharing of non-public information with ‘friends’ selected by the profile holder, which characterizes social media platforms.”

Next the Commission turned to using social media to obtain evidence for a pending case. The Commission sided with the majority of other jurisdictions in concluding that all publicly viewable social media information is fair game and may be viewed without issue. But for unrepresented parties, data found behind a privacy wall may only be accessed if attorneys or their agents, when making the connection request, “affirmatively disclose the purpose of the contact.” Represented parties were a different story, and all private information found behind the privacy wall was found to be off limits since any attempt to connect in order to access that information constitute impermissible communications with a represented party.

The Commission also sided with the majority of jurisdictions on the issue of whether passive notifications (like those sent by LinkedIn when someone views a user’s profile) sent by social networks to jurors constituted an impermissible communication. Like the American Bar Association Committee and the DC Bar Committee (and in contrast to the position taken by the New York State Bar Committee), the Commission concluded that only publicly viewable information could be accessed and that passive notifications to jurors sent by social media sites did not constitute impermissible ex parte communications since “any other approach would be unworkable as a practical matter and would subject attorneys to potential ethics violations based upon the happenstance of user settings or new technologies that generate automated messages outside of the attorney’s reasonable knowledge or control.” However, the Commission cautioned that “where an attorney knows or reasonably should know that accessing any social media of a juror will result in such juror becoming aware of the attorney’s access, the attorney should refrain from accessing that social media, (and) (i)f the attorney learns that any juror…has become aware of (it), the attorney must notify the Court…(which) may find it advisable to provide a cautionary instruction…”

Finally the Commission weighed in on lawyers connecting with judges online: “Attorneys are permitted to connect with judges and other judicial officers through social media, but they are precluded from having ex parte communications with, or from attempting to impermissibly influence, such judges or judicial officers through social media.” Once again, this was in line with the position taking by most other jurisdictions on this issue.

As more jurisdictions address these issues, commonalities arise in the analysis and conclusions reached. In this case, the Commission wisely acknowledged the rapid pace of technological advancement and incorporated that concept into the context of its determinations. Hopefully committees in jurisdictions that have not yet addressed these issues will follow suit, since guidelines on ethical use of technology that have flexibility built in are more likely to withstand the test of time.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.


North Carolina Bar considers requiring technology CLE credits

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

North Carolina Bar considers requiring technology CLE credits

I’ve said it once, and I’ll say it again: technology is advancing at unprecedented rates. The impact of technology on our day-to-day lives is inescapable and the practice of law is not immune. Technology’s reach can be felt across the legal spectrum, from the use of digital evidence in the courtroom and ediscovery, to using artificial intelligence and cloud computing software to streamline law firms and the practice of law.

That’s why, in response to the rapid pace of technological change, the American Bar Association adopted of an amendment to Comment 8 to Model Rule 1.1 in 2012. The comment imposed an ethical duty on lawyers to stay abreast of changes in technology. The amended comment reads as follows:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added).

Following the enactment of this amendment, 31 states have since adopted the revised comment to Rule 1.1, including New York, which did so in March of 2015.

Then in 2016, Florida became the first state to require that lawyers complete 3 credits of legal technology CLE per biennial cycle as part of their obligation to stay abreast of changes in technology.

Since then, no other state showed signs of following that course - until now. Last month, the North Carolina State Bar Council voted to adopt proposed amendments relating to the duty of technology competence. The proposed rules provide a definition of “technology training” and mandate “that one of the 12 hours of approved CLE required annually must be devoted to technology training.” If adopted, the amendments will go into effect in 2019.

The Council defined “technology training” as follows: “(T)he primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software.”

The Committee also provided clarification regarding the types of CLEs that will qualify for a technology credit  - and which ones would not: “A program on the selection of an IT information technology (IT) product, device, platform, application, web-based technology, or other technology tool, process, or methodology, or the use of an IT tool, process, or methodology to enhance a lawyer’s proficiency as a lawyer or to improve law office management may be accredited… A program that provides general instruction on an IT tool, process, or methodology but does not include instruction on the practical application of the IT tool, process, or methodology to the practice of law shall not be accredited. The following are illustrative, non-exclusive examples of subject matter that will NOT receive CLE credit: generic education on how to use a tablet computer, laptop computer, or smart phone; training courses on Microsoft Office, Excel, Access, Word, Adobe, etc., programs; and instruction in the use of a particular desktop or mobile operating system.”

Will other states follow suit and mandate technology CLEs for lawyers? Only time will tell. But all signs point to this being the prudent course of action. After all, technology is here to stay and ignoring it is no longer an option. Lawyers need to stay up-to-date and a helpful nudge in the right direction by state bar associations may be the best solution for those attorneys who are unwilling to undertake this task on their own.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki.black@mycase.com.