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When technology and law enforcement collide

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

*****

Law enforcement officers have no problem using the latest and greatest technologies to police the people, whether it’s using facial recognition tools, cellphone geolocation data, or recordings obtained from smartphone technologies such as Amazon’s Alexa. But it seems that when the people use the very same tools to police the police - well, that simply won’t do.

For example, we know that the police typically don’t like being recorded while effecting an arrest and will often order bystanders to refrain from doing so, and have even been known to take custody of devices and delete data from them. Along the same lines, law enforcement has never been a fan of a more mundane and less tech-savvy practice that many motorists engage in: flashing their headlights in order to warn other motorists of a speed trap.

So I wasn’t surprised to learn that the New York Police Department had set its sights on the 21st century version of headlight flashing: the Waze app’s user-submitted reports regarding speed taps and DWI checkpoints.

According to the New York Times, last weekend the NYPD’s acting deputy commissioner for legal matters, Ann P. Prunty, sent a letter on behalf of the NYPD to Google (the owner of the Waze app) to demand that it remove that feature from Waze. The rationale for this request was as follows: “The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving. Revealing the location of checkpoints puts those drivers, their passengers, and the general public at risk.”

If Google refused to do so, Prunty indicated that the NYPD would pursue all legal remedies available to it to achieve its goal of preventing people from sharing said information via the app.

For starters, this request, if granted, likely infringes on the First Amendment rights of ordinary citizens, but that’s an issue that the courts will have to grapple with if legal remedies are indeed pursued by the NYPD. That’s certainly an interesting issue, but what I found to be even more interesting was that the letter was a perfect example of a knee jerk reaction to technology.

I say this because people have always found ways to share information regarding the arrival or location of the police. There are code words used by kids on the street that warn others when police appear on the scene. And, as mentioned above, motorists flash their headlights after encountering a speed trap to warn other drivers. Similarly, truck drivers use their CB radios to communicate the whereabouts of police to other truckers. And certainly cell phones have been used by motorists for the purposes of sharing information via phone calls for that same reason as well.

In other words, citizens have always found ways to communicate with one another with the end goal being to avoid police interaction. But in the past they’ve used the only methods available to them at the time, which were certainly less effective and not nearly as far-reaching as an app like Waze.

Enter technology and the power of social media, and suddenly ordinary citizens have the ability to broadcast their observations of law enforcement activities far and wide. It’s important to note, however, that while the efficiency and reach of the information sharing has improved, the essence of it is the same. It’s simply people communicating with one another regarding situations that are occurring in plain sight. Technology and social media have simply amplified their voices.

In other words, as I’ve oft repeated in this column since 2008, the medium doesn’t change the message. And in this case, I would argue that the message falls within the parameters of free speech, and that imminent danger exception does not apply. The fact that the message is now more easily transmitted to a larger number of people doesn’t change that fact.

The NYPD seems to have lost sight of the fact that the online is simply an extension of the offline. Should it follow through with its threat to litigate, this will be an interesting case to follow. I strongly suspect that First Amendment rights will trump law enforcement’s knee jerk reaction to technological innovation, but only time -and a lawsuit - will tell if I’m right.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. 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. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Federal judge on whether biometric access to phones requires a warrant

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

*****

A decade ago, smartphones were in their infancy. The iPhone was not even a year old and widespread adoption had not yet occurred. Many were suspicious of the touch screen interface, and lawyers in particular clung to the idea that they required the tactile feel of a traditional keyboard.

Fast forward to 2019, and smartphones are commonplace even amongst lawyers. In fact, according to the latest ABA Legal Technology Survey Report, 95% of all lawyers use smartphones on a daily basis.

Not only has smartphone usage grown over the past decade, so too have the technologies that power the devices. Today’s smartphones are essentially minicomputers with memory and processing power comparable to that of some desktop and laptop computers. For that reason, smartphones have become indispensable and people store all sorts of information on them.

It’s no surprise then that law enforcement routinely seeks access to smartphones of suspected criminals. Of course, constitutional protections still apply. For example, for a number of years now, it has been generally accepted that law enforcement cannot require you to provide the password to your smartphone, since doing so is compelled testimony and thus falls under the protection of the Fifth Amendment.

However, with the release of smartphones with biometric unlocking features, the waters were muddied. Many courts subsequently concluded that the biometric data used to unlock phones (ie. fingerprints and faces) is not inherently testimonial and thus requiring a defendant to open a device using biometric data does not violate the Fifth Amendment.

The tide may be turning, however, with the release of a recent federal district court decision on January 10th. Northern District of California Magistrate Judge Candice A Westmore considered this very issue and issued an important ruling in The Matter of the Search of a Residence In Oakland, California (online: https://tinyurl.com/ycs4wdy7). Specifically, the Court considered whether law enforcement should be granted a search warrant that required any individual present at the time of the search could be compelled to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents…”

In reaching its decision, the Court first concluded that the search request was overly broad, and that there was insufficient probable cause to: 1) compel anyone other than the suspects to unlock their devices or 2) to seize the device of anyone other than the suspects who were present at the time of the search.

Next the Court turned to the issue of whether the suspects could be required to provide biometric data to unlock any devices that were reasonably believed to belong to the suspects. At the outset the Court wisely noted that because of the rapid pace of technological change, courts must adopt rules that take into account more sophisticated technologies that currently exist or are in development and that courts “have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology.”

The Court then turned to ascertaining whether providing biometric data is a testimonial act, and concluded that it was: “(A) biometric is analogous to the nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

Finally the Court reiterated the Supreme Court’s 2014 determination in Riley v. California that today’s smartphones contain large amounts of incredibly private data regarding the owner of the phone and others with whom that person communicates: “smartphones are minicomputers…a search of which ‘would typically expose the government to far more than the most exhaustive search of a house. A phone not only contains in digital form many sensitive records previously found in the home, it also contains a broad array of private information never found in an home in any form…’”

For any number of reasons, this ruling is notable. For starters the Court acknowledged the undeniable effects of the rapid pace of technology on our culture. It was reassuring to read this thoughtful and insightful ruling, especially since it took into account the nature of rapidly evolving technologies and how they may potentially - and sometimes unintentionally - impact our constitutional rights. Also of import is the Court’s understanding of existing technology and its on-point comparison of it to more traditionally accepted testimonial evidence.

In short, I believe that the conclusion reached by the Court was the correct one. Let’s hope other courts follow suit.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. 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. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.