Constitutional Issues

U.S. Supreme Court on First Amendment rights and social media

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Last month the United States Supreme Court weighed in on the intersection of the First Amendment with social media in Packinham v. North Carolina, No. 15–1194

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki@mycase.com.

 


Speaking up, and being censored

Last week, a column that I submitted was rejected by a publication for which I've written for nearly a decade. This was the first time one of my submissions was rejected even though my columns have occasionally delved into political territory in the past.

So, I'm now posting my rejected column, here, in its entirety.

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If Not Now, When?


As I sat down to write my column today, I found myself incapable of writing about anything other than the state of our world post-election. The elevation of Donald Trump to the highest office in the land marks a radical shift in our politics and in our lives. Hate has been normalized and the most vulnerable and helpless members of our society are at risk.

As lawyers, we are uniquely qualified to come to their aid and make a difference in the coming months and years. Already the practicality of establishing registries for Muslim immigrants - something that seemed a farfetched idea just weeks ago - is being actively discussed by members of the President-elect’s incoming cabinet and the inexcusable and shameful Japanese internments from World War II have been offered as precedent for said registries. Mass deportations are also on the table, with no care given to how those deported will be received in the countries from which they have fled. Hate crimes are being committed in the name of our President-elect across the country at an alarming rate.

Freedom is at risk. Liberty is at risk. Lives are at risk. Not just the lives and liberties of those being targeted by the incoming administration, but the lives and liberties of all Americans. We are at a pivotal moment in our history and we have a choice: we can either sit idly by and allow the unthinkable to occur or we can take action. As attorneys, we have an obligation to use our skills and our voices to fight for what’s right and just. We must make a difference.

But where do we start? We organize, donate money, provide pro bono representation, and offer vocal support to those who are vulnerable. We can make a difference on many levels, both professionally and personally.

Shortly after the election, I stepped back and gave careful thought to the steps I could immediately take to foster change. And then, I acted. If you, too, are interested in taking action, here are some ideas.

First, consider setting up recurring donations to organizations that fight for social justice, including: NAACP Legal Defense Fund, ACLU, Planned Parenthood, Center for Reproductive Rights, Anti-Defamation League, Southern Poverty Law Center, Trevor Project for LGBT Youth, Mexican American Legal Defense and Education Fund, Natural Resources Defense Council, Council on American-Islamic Relations, and National Immigration Law Center. Also consider donating to local organizations with similar goals.

Because free, unencumbered press is fundamental to a democratic society, one way to forward these rights is to support news organizations that provide quality, in-depth reporting, such as the New York Times and the Washington Post. Another option is to donate to ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest.

The right to assemble and peacefully protest is likewise another important First Amendment right, so consider attending the upcoming protest in Washington, D.C., the Women's March, on January 21st or other more local protests.

Finally, I invite you to join a local group that I've organized of nearly 40 like-minded locals, including many lawyers, who would like to start taking steps to help those who will be most affected by the predicted policies of this new administration. Our first meeting was held over the weekend and we are starting our work to have a positive impact and effect change in our local community. Message me on social media (@nikiblack on Twitter or via LinkedIn) and I’ll send you more information.

So please, join us. This is a pivotal time in our history, and we cannot be complacent. If you, like me, are concerned about the future of our country and the impact of the policies that will likely be implemented by this incoming administration, now is the time to step up to the plate and take action. If not now, when?

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Pokemon Go. You’ve heard about it but likely have no idea what it is or why so many people are wandering around in circles in front of statues babbling about gyms, Pokestops, and “powering up.”

Here’s the low down. It’s an augmented reality smartphone app that was released in the United States a little over a week ago and since that time it’s been downloaded more than twice as many times as Tinder and its user numbers are quickly catching up to Twitter’s.

This app overlays an augmented map over your location and overlays the Pokemon world onto your own reality. This means as you stand on a street corner you can “see” Pokestops in front of stores, monuments, statues, and churches. When you walk to these locations you can obtain items that help you play the game more effectively. And Pokestops “refresh” approximately every 5 minutes, so you soon return to the Pokestop to obtain more items.

You can also see gyms, which are where people go in order to battle against other Pokemon teams (there are 3 teams: red, blue, and yellow) in order to claim the gym. You have to walk to the gym in order to battle.

There are also creatures called “Pokemon.” As you walk around, they will suddenly appear and you have to lob Pokeballs (which you obtain at the Pokestops) at the Pokemon in order to capture them. The goal is to capture, power up, and evolve as many Pokemon as possible and then battle them in the gyms. The map also indicates locations where Pokemon might be, so people tend to follow that trail in order to obtain more elusive Pokemon.

People also obtain Pokemon eggs, which incubate and won’t hatch until the player has walked at least 5 km - and sometimes 10 km. So the game encourages people to walk around - a lot.

The last piece of the puzzle that is relevant to this discussion is the ability to set up a “lure” in order to lure Pokemon to you for a 30 minute period. When players set up a lure at a Pokestop, the map shows that there is an active lure and everyone in the area gravitates toward the lure so that they can take advantage of the sudden influx of Pokemon and capture them.

So what is this game causing people to do? Walk around. A lot. And sometimes players will run onto the lawns of private homes or businesses in order to snag an elusive Pokemon. They are also gathering in groups, large and small, in public places at all times, day and night - such as where there are Pokestops, gyms, or when a lure is set. This often results in motley crews of people who might otherwise would not have a reason to stand around together: people young and old, people of different races and nationalities, and people from very different walks of life.

To the outside observer unfamiliar with the game, much of this activity can appear suspicious or even menacing. For example, when kids (some of whom are rather large high schoolers) run around neighborhoods and through yards, people become understandably fearful when they see what appears to be a large man lumbering through their backyard. I suspect that very behavior is what lead to a sheriff’s cruiser driving very slowly through my suburban neighborhood the other day.

Also suspicious to the outward eye are small groups of people in unusual circumstances who generally would not be seen together absent presumed unlawful intent. By way of example, a 50-year old white man shared online that he couldn’t sleep one night and was hunting Pokemon in the local park at 2 a.m. when two young black men who were also playing noticed him and they started talking about the game while sitting on a park bench. Shortly thereafter a police officer showed up, likely suspecting a drug deal. After much discussion they convinced him otherwise and even got him to download the app.

The sudden gathering of large groups of people in public places could also be viewed a threatening by local law enforcement unfamiliar with the phenomenon This is especially so in light of the recent protests occurring across the country.

The bottom line: law enforcement needs to be aware of this app, how it works, and the way that people using it behave in order to avoid misunderstandings that could unexpectedly escalate. I sent messages via Twitter early last week to both the Rochester Police Department and the Monroe County Sheriff’s Office to that effect. Neither responded to me.

Pokemon Go is catching on like wildfire. On a weeknight last week at 9 p.m., there were more than 30 people from all walks of life gathered near the library in the small village of Pittsford, New York after a lure was set. Central Park in New York City has been coined “Pokemon Central,” with reports of hundreds of people gathering near Pokestops and gyms at any given time. This is happening in cities, big and small, and the numbers will only increase over time.

My hope is that police departments locally and across the country get up to speed quickly. Pokemon Go may seem strange to the outside observer, but players shouldn’t be subjected to unnecessary police encounters due to ignorance on the part of law enforcement - especially when these types of encounters can sometimes go horribly wrong. So local law enforcement agencies, consider this a heads up: Pokemon Go has arrived. Learn about it, understand it, and police accordingly.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Join Me In NYC On 5/9 At NASDAQ To Celebrate Law Day

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Next week on May 9th I'll be in NYC with MyCase and the ABA. I hope you can join me to celebrate Law Day--with a focus on the importance of the Miranda decision and preserving our constitutional rights--at an event hosted by MyCase at NASDAQ in Times Square!

Please join me on Monday May 9th from 5:30-8pm for:

  • An Open Bar and passed apps overlooking Times Square
  • Presentation from ABA President Paulette Brown
  • Networking with legal colleagues at NASDAQ Marketsite - 4 Times Square

Reserve your spot here.


Criminal and privacy implications of drones

Stacked3This week's Daily Record column is entitled "Criminal and privacy implications of drones."  My past Daily Record articles can be accessed here.

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Criminal, privacy implications of drones

Every summer I work on the annual update for the book that I co-author with Judge Karen Morris: Criminal Law in New York. As part of my responsibilities, I review all of the cases about the substantive elements of the crimes to which I’ve been assigned and then write about the implications of the newest holdings.

Of course technology has had an impact on New York’s Penal Law and is discussed in the cases about which I write. Oftentimes, the effects of technology are found in cases addressing aggravated harassment, criminal contempt, or crimes related to privacy rights such as unlawful surveillance. Not surprisingly, as someone who regularly writes about the intersection of law and technology, I am always particularly interested when technological advancements impact criminal law.

That’s why I was so intrigued by a recent news story about the legality of a man’s actions in shooting down a privately-owned drone that was hovering over his property. The drone was owned by his neighbor, who had purportedly flown it over the property with the goal of filming new construction that was occurring on the property.

Interestingly, New Jersey police charged the man who shot the drone with possession of a weapon for an unlawful purpose and criminal mischief. Certainly he damaged property that didn’t belong to him, but the drone that he damaged was being used to, in essence, spy on people and activities occurring on his land. So although he was certainly at fault, there were also privacy issues that were not addressed that were triggered by the use of the drone to obtain views of people and places that would not otherwise be possible absent the use of the drone.

This issue has already cropped up a number of times this year, including reports this summer of people using drones on beaches to obtain up close and personal views of women sunbathers, much to the consternation of said women. In most cases, the Penal Law has yet to be revised to address this type of privacy violation, although in New York, there have been a number of revisions to the Penal Law to address other types of privacy violations made possible through the use of new surveillance technologies.

For example, New York Penal Law Article 240 has been amended and interpreted in recent years to include communications made using the Internet and cellphones. Likewise, Penal Law Article 250 has been substantially revised to include unlawful surveillance occurring through the use of new and sophisticated technologies and now includes:

250.05 Eavesdropping. (E FELONY)
250.10 Possession of eavesdropping devices. (A MISD)
250.15 Failure to report wiretapping. (B MISD)
250.20 Divulging an eavesdropping warrant. (A MISD)

250.25 Tampering with private communications. (B MISD)
250.30 Unlawfully obtaining communications information. (A MISD)
250.35 Failing to report criminal communications. (B MISD)
250.45 Unlawful surveillance in the second degree. (E FELONY)
250.50 Unlawful surveillance in the first degree. (D FELONY)
250.55 Dissemination of an unlawful surveillance image in the second degree. (A MISD)
250.60 Dissemination of an unlawful surveillance image in the first degree. (E FELONY)

Clearly, the Penal Law recognizes the need to protect people from the increasing ability to capture and disseminate information intended to be kept private—and information that would have stayed private but for the use of sophisticated technologies. Unfortunately the Penal Law has not yet caught up with the use of drones for this purpose, which is undoubtedly why the New Jersey man who shot the drone was charged with crimes, while his neighbor was not.

Certainly the wiser course of action would have been to call the police as opposed to destroying the drone with a gun. But even so, the case raises some interesting questions about the future of privacy and the use of drones for surveillance purposes by both private individuals and governmental entities. Only time will tell how our legislators will react to the increasing use of drones for surveillance purposes. Let’s hope they enact measures designed to limit this type of invasive, unauthorized surveillance because privacy rights are more important than ever in today’s highly technologically advanced world.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software for the modern law firm. She is also a GigaOM Pro Analyst and 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can bereached at niki@mycase.com.


Facebook and First Amendment rights

Stacked3This week's Daily Record column is entitled " Facebook and First Amendment rights." My past Daily Record articles can be accessed here.

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Facebook and First Amendment rights

Did you know that a few years ago, the number of times that Americans viewed social media sites per day surpassed pornography site views? When that happens, you know you’ve reached a tipping point!

Reaching that dubious milestone was just one more sign that social media is more than just a fad or a passing fancy. After all, it affects every aspect of our lives, from communication and interaction with loved ones and friends to influencing our purchasing choices and the way that we conduct business.

In other words, social media use has permeated our culture and more than ever before, people are sharing information about all aspects of their lives using social networking sites. Some of these disclosures are broadcast publicly while others are limited to select friends and followers. But whether distributed publicly or to a small circle of friends, online communications via social media sites can sometimes have a sizable offline impact, as was the case in a recent federals appeals court case where online activities intersected with the First Amendment.

One issue in Bland v. Roberts, No. 12-1671, was whether the actions of one of the plaintiff’s — showing support for a political candidate by “liking” his Facebook campaign page — was a “communication” protected by the First Amendment. The case arose when one of the plaintiffs, a sheriff’s deputy, “liked” the Facebook campaign page of a candidate for sheriff who was running against the deputy’s boss. The deputy was fired and subsequently sued his former employer alleging that his termination was in retaliation for exercising his First Amendment right to free speech.

Previously, other courts had considered the issue of whether certain types of online statements made on social media constituted speech and and concluded that they were constitutionally protected speech, but the issue of whether a “like” on Facebook was a “substantive statement” and thus protected was an issue of first impression.

In reaching its decision on this issue, the Fourth Circuit U.S. Court of Appeals examined the nature of a Facebook “like,” explaining that, at its essence, it was a form of communication:

“Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook  page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

The court then wisely sought out offline comparisons to the online activity of “liking” a Facebook page and concluded that the plaintiff’s Facebook “like” was indeed speech protected by the First Amendment: “In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

In other words, as I’ve repeated time and time again, the medium does not change the message. Online behavior is no different than offline behavior and seeking out the offline corollary for online behavior is the best way to reach appropriate decisions when interpreting 21st century conduct using 20th century precedent. Kudos to the Fourth Circuit for issuing a decision that will withstand the test of time.


Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Are police unlawfully accessing social media accounts?

Stacked3This week's Daily Record column is entitled "Are police unlawfully accessing social media accounts?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Are police unlawfully accessing social media accounts?

It’s undeniable: social media use has permeated our culture. People are sharing information about all aspects of their lives via social networking sites. Some of these disclosures are broadcast publicly while others are limited to select friends and followers.

This broad scale sharing of information has not gone unnoticed by the legal profession. In past columns I’ve discussed the recent efforts of lawyers to mine social media for evidence, resulting in a number of ethics opinions that attempt to provide guidance and establish ethical boundaries for lawyers as they wade into the electronic minefield of social media.

But, as an attendee asked when I recently spoke at a seminar sponsored by the Monroe County Public Defender’s Office, what about law enforcement? How far can police officers go when seeking to obtain access to social media evidence in order to prove the guilt of an accused?

I thought it was a great question and suggested that it was an issue that the courts would increasingly have to wrestle with as law enforcement stampeded into uncharted social media territory.

And, an example of just such a decision arrived a few weeks later. I received an email from one of the attendees, well-known Rochester criminal defense attorney and prolific author, Gary Muldoon and he advised me of a recent case on point, People v. Munck, 92 A.D.3d 63, 937 N.Y.S.2d 334 (3d Dept. 2011).

One issue addressed by the court in Munck was whether, during a police interrogation, police had unlawfully obtained access to the defendant’s MySpace account. The court briefly addressed the issue, holding that the officer’s conduct was lawful, and cited a New York Court of Appeals decision as the basis for its holding:

“While defendant received oral Miranda warnings, which he agreed to waive, that interview was voluntary and noncustodial, no violation of his rights occurred and he was allowed to leave. Toward the end of the questioning, when Akshar feigned interest in MySpace Web page designs, defendant voluntarily provided his username and password to his accounts and verbally agreed to let Akshar access them. In our view, contrary to defendant’s claim, Akshar did not use impermissible or fundamentally unfair or deceptive tactics to gain access to these accounts  (see People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ).”

Tarsia is a case that delves in depth into the issue of coercion during police questioning. Specifically, the court was tasked with determining whether Tarsia’s consent to allow the police to use a voice stress test during his interrogation was the product of coercion.

In reaching its decision, the Court of Appeals examined the essence of coercion:

“However, while more subtle methods, though sometimes harder to perceive, are equally to be condemned when they trammel on the rights of those in custody … it may take a discerning eye to tell those that are fundamentally unfair from those which are no more than permissible instances in which the police have played the role of ‘midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation’ … In this case, the coerciveness argument derives from the subsidiary claims that defendant was misinformed as to the purpose of the voice stress test … (But) there was no misrepresentation made that the test results could be admissible in a trial against him. Rather, the test was used simply as an investigatory tool … Lieutenant Gaul explained in advance what the signs of stress would be and examined the stress chart in defendant’s presence.”

In other words, the court in Tarsia was focused on the use of coercion to induce a confession of guilt. The defendant understood that the officers were attempting to get him to admit to a crime. He knew why he was being asked to consent to the voice stress test.

However, in Munck, the law enforcement tactics used were far more deceptive. This becomes obvious when, as I always suggest should be done when dealing with the online world, the situation is compared to a similar offline analogy. Here, the officer feigned an interest in Web design in order to obtain access to Munck’s MySpace information. Thus, the tactics used were akin an officer claiming expertise as a book editor and then asking the defendant to disclose the location of his diary so that the officer could review it for purposes of submitting it as a memoir to a book publisher.

The reason the officer request access to Munck’s MyCase password was anything but forthright. The convoluted tactics used were “fundamentally unfair” and “trammeled” on Munck’s rights.

Just because the Internet is still viewed as the “Wild West” doesn’t mean law enforcement officers can ignore the Constitution and run willy nilly over the rights of the accused. Unfortunately, I think Munck sets that precedent. My hope is that over time, as Internet-based tools become more familiar, a new sheriff will come into town (in the form of a decision from another Judicial Department or the Court of Appeals) and will set the record straight.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations atMyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and 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 West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com. 

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Can Police Obtain Cell Phone Location Data Without a Warrant?

Drlogo11

This week's Daily Record column is entitled "Can Police Obtain Cell Phone Location Data Without a Warrant?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Can Police Obtain Cell Phone Location Data Without a Warrant?

In their continuing effort to battle alleged criminals both big and small, police are turning to the newest technologies to track and locate suspects. The latest weapon in their arsenal is cell site location information (CSLI).

Increasingly, police agencies are seeking access to the CSLI data maintained by cell phone providers, which provides them with a customer’s past location records. This information is gleaned from the signals sent by the customer’s cell phone to the carrier’s cell phone towers. In many cases, these records are obtained in the absence of a warrant.

Just this summer, two New York courts addressed the legality of this practice and reached conflicting conclusions. The New York Appellate Division, First Department held that warrantless access to this type of information was permissible whereas just last week, the U.S. District Court for the Eastern District of New York held that warrantless access to CSLI data was unconstitutional.

First, in July, the First Department handed down their decision in People v. Hall, 926 N.Y.S.2d 514, (1st Dept. 2011). The Court briefly addressed the constitutional issues presented and then concluded that access to three days of location surveillance in the absence of a warrant was permissible: “Obtaining defendant’s CSLI without a warrant did not violate the Fourth Amendment because, under the Federal Constitution, defendant had no reasonable expectation of privacy while traveling in public.”

In comparison, the EDNY reached the opposite conclusion (In the Matter of  an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (NGG)). After an extensive constitutional analysis, U.S. District Judge Nicholas Garaufis concluded that a probable cause warrant issued by a judge is required before law enforcement can obtain a customer’s CLSI data: “This court…seeks to resolve the question before it: whether the request for at least 113 days of cumulative cell-site-location records for an individual's cell phone constitutes a search under the Fourth Amendment…The court concludes that it does. Consequently, the information sought by the Government may not be obtained without a warrant and the requisite showing of probable cause.” 

Of course, this isn’t the first time this issue has been addressed, nor will it be the last. Courts across the country have reached conflicting decisions on this issue and the Supreme Court is expected to review a case that presents a similar issue.

Additionally, there are competing bills pending in Congress regarding geo-location data.

First, in June, Sen. Ron Wyden (D-Oregon) and Rep. Jason Chaffetz (R-Utah) submitted “The Geolocation and Privacy Surveillance Act,” which would require probable cause and a warrant before the government could access all types of geo-location data, including information related to past movements, such as CSLI data.

Meanwhile, Sen. Patrick Leahy (D-Vermont), proposed legislation that would only require a warrant for real-time cell phone data, not past data. Ironically, that same piece of legislation includes a provision that would require law enforcement to obtain a warrant prior to accessing data stored in the cloud.

With the rapid pace of technological change, Fourth Amendment privacy issues are of ever-increasing importance. That people choose to utilize technologies that provide private companies with extensive amounts of personal data does not mean the information magically becomes part of the “public realm” or that consent to governmental access of said data is somehow presumed.

As law enforcement becomes more creative in their efforts to spy on US. Citizens, changes must be made to ensure that our constitutional rights are not obliterated in the face of a fundamental lack of understanding of new technologies.  Or, as Judge Garaufis so eloquently put it: “While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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Should social media passwords be a job requirement?

Drlogo11

This week's Daily Record column is entitled "Should social media passwords be a job requirement?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Should social media passwords be a job requirement?

I recently learned that the Yates County Sheriff’s Department was requiring current employees and job applicants to provide the Department with their social media passwords. The requirement was later rescinded for current employees.

The Yates County Sheriff’s Department isn’t alone. Requiring social media passwords as part of the job application process is an increasing trend—and a disturbing one, especially when the employer is a governmental entity, such as a law enforcement agency.

A similar case made the news earlier this year when Maryland corrections officers were required to provide the Maryland Division of Corrections access to their Facebook accounts as part of the job recertification process.

The ACLU of Maryland became involved and challenged the policy, asserting that the policy violated the privacy right of employees, job applicants and their “friends” on social networks. In January of 2011, the ACLU sent a letter to the DOC (online: http://www.aclu-md.org/aPress/Press2011/collinsletterfinal.pdf) summarizing its objections. In part, the ACLU objected to the privacy violations occurring because of the policy: 

Neither Officer Collins nor his Facebook “friends” deserve to have the government snooping about their private electronic communications. Login information gives the DOC access to communications that are intended to be private…(and) the DOC demand for login information is equivalent to demands that they produce all of their private correspondence and photographs for review, or permit the government to listen in on their personal telephone calls, as a condition of employment.

The Maryland DOC later suspended the policy for 45 days as it related to current employees and in April 2011, revised the social media policy somewhat, but the revisions did little to alleviate the ACLU’s privacy concerns.

The Maryland DOC and the Yates County Sheriff’s Department aren’t the only law enforcement agencies requiring applicants to provide social media passwords. In fact, according to a November 2010 report, the IACP Social Media Survey, issued by the International Association of Chiefs of Police, nearly one third of all law enforcement agencies required access applicants to provide access to their social media profiles as part of the background check.

That so many law enforcement agencies engage in this practice is troubling for any number of reasons. Many social media users choose to limit public access to their social media profiles in order to enhance their levels of privacy and they do so for a reason: to keep their personal information private. When an agency obtains passwords to an applicant’s social media profiles, the agency is able to access all electronic communications related to the profiles, regardless of the privacy settings in place.

Additionally, when agencies obtain passwords to these profiles, they gain access to a vast array of information, including communications from unsuspecting third parties. These communications include messages and photographs posted to the applicant’s wall, status messages from friends that appear in the applicant’s social media stream and private messages from other users that are intended for the applicant’s eyes only.

Even if law enforcement job applicants consent to allow hiring agencies access to social media profile passwords, the “friends” of the applicants most certainly did not consent to having communications that they believed to be private perused by law enforcement officials. Thus, policies of this type infringe upon the privacy rights of innocent, unsuspecting third parties who happen to be friends with and correspond with job applicants. For that reason alone, this practice should be terminated.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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I Have a Date With TSA Next Month

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This week's Daily Record column is entitled "I Have a Date With TSA Next Month."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.

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I Have a Date With TSA Next Month

In early December I’m speaking to the IP section of the Colorado Bar Association about the legal and ethical issues of social media for lawyers. My trip to Denver will be the first time that I’ll have flown since the TSA’s new screening procedures were implemented.

My hope is that I won’t be “randomly” selected to walk through one of the new full-body scanners that were rolled out to airports, including the Rochester International Airport, across the country earlier this month. These scanners dose the subject with radiation and create a detailed, graphic image of the person’s nude body. According to TSA representatives, the radiation levels are safe, but others dispute this claim.

If I am one of the 20 percent of travelers selected to receive a full-body scan, I intend to opt out, both for health-related reasons and as a matter of principle.

Unfortunately, now that the screening procedures have changed, that means I’ll be subjected to the new, more invasive pat-downs that were implemented at the same time as the new full-body scanners.

A TSA agent will use the fronts of their hands to pat down all areas of my body, including my breasts and groin. Previously, TSA agents used the backs of their hands and avoided engaging in non-consensual fore- play with air travelers.

Not anymore.

In the name of national security, forced intimacy strangers is now par for the course

Hopefully, my experience will be less traumatic than that of other recent air travelers.

First, there’s Tom Sawyer, a 61-year-old bladder cancer survivor who had urine from his urostomy bag spilled onto his clothes following a rough TSA search that left him humiliated and in tears. Then there are the breast cancer survivors, a number of whom have complained that TSA agents forced them to remove their prosthetic breasts.

Sexual assault victims have also been traumatized by the experience, describing heart-wrenching accounts of encounters with TSA agents. Many have said that the pat downs caused them to experience flash backs from the original sexual assault.

Then there are the children appearing in widely circulated YouTube videos. One is of a 3-year-old girl receiving an invasive pat down from a TSA agent and screaming “Don’t touch me!” as her mother holds the hysterical child during the search. In another video, a young boy is seen removing his shirt during a TSA pat down as bystanders express their disbelief.

Many security experts have likened the new procedures to an ineffective “security theater” performed only for show. In other words, the newly revised security dance looks good, but does very little to actually protect us from a terrorist attack.

This, to me, is simply unacceptable. I’m outraged by the invasiveness and ineffectiveness of the new security procedures and it pains me to hear of my fellow citizen's humiliating experiences at the hands of government agents.

They deserved better. We all do.

Needless to say, I don’t relish my upcoming “date” with TSA. I’m not looking forward to the possibility of being groped by a stranger after refusing the full-body scan. However, I plan to make the best of it and will pass the time by humming Meat Loaf’s song “Paradise by the Dashboard Light” as the TSA agent pats me down. After all, it only seems fitting.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com

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