Civil Rights

U.S. Supreme Court Holds Expectation of Privacy in Cell Phone Geolocation Data

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


Smartphones have become central to the lives of most Americans. We count on our phones to keep us connected to the world. Because our phones handle so many pivotal functions for us, we’ve become increasingly reliant on them. They’ve have become so much a part of our day-to-day lives that, if you’re anything like me, you feel a bit lost when you realize you’ve misplaced your phone.

Our phones are important to us because of their utility, in part because they instantaneously provide us with incredibly relevant and up-to-date data and information about the world around us. Of course, much of that usefulness is derived from the massive amounts of personal data collected by our phones and the apps running on them. That data serves as the basis for a more personalized and functional experience.

Unfortunately, the very same data the makes our phones so valuable to us can also be used against us, sometimes by criminals, and other times by law enforcement. Last month, the United States Supreme Court considered the latter situation in Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018).  At issue was whether governmental access to historical geolocation cell phone data in order to ascertain a user’s movements constitutes a search.

Importantly, at the outset, the Court explained that careful vigilance was required when applying Fourth Amendment jurisprudence to the technological advancements that provide law enforcement with increasingly invasive access to personal information: “We have kept…Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

The Court then turned to an examination of the specific type of information at issue in the case at hand: cell phone geolocation data. The Court noted that it is nearly impossible for users to prevent the collection and storage of their phone’s geolocation data: “Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume the risk” of turning over a comprehensive dossier of his physical movements.”

Next the Court considered whether stored geolocation data was protected by the Fourth Amendment and concluded the it was: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through (cell phone location information).”

The Court explained that because there is an expectation of privacy in a phone’s geolocation data stored on third party servers, a warrant is required in order for the government to access it: “The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment…Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.”

Of note, the Court clarified that although a warrant is generally required to access stored geolocation data, said requirement was inapplicable in the face of exigent circumstances.

Finally, the Court wisely recognized its duty to “ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Given the rapid rate of technological advancement that we’ve seen over the past decade and the fact the pace of change will only increase exponentially in the years to come, this acknowledgement was reassuring.

Technology provides incredible benefits, but privacy issues abound. Protections from unfettered governmental access to the increasingly personal data collected by our phones are needed now more than ever. The Court’s holding in this case strikes the right balance and provides much-needed guidance in the midst of a turbulent and increasingly invasive technological landscape.

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 [email protected].


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.


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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can bereached at [email protected].

On the Boston Tragedy: And for what?

English: Flag proudly flying on the summit of ...(Photo credit: Wikipedia)

My heart goes out to the Boston victims and their loved ones. Such a horrible, pointless tragedy. 

It was one of many on our soil in recent years--some were terrorism and others gun violence.

My heart aches. There have been too many senseless tragedies as of late. Too much sorrow. Our country is suffering from the weight of these collective losses--both due to the tremendous sadness and the gradual eradication of our liberties. 

And for what?

Our digital communications are fair game and the government is collecting all of our digital data, without just cause or a warrant. (See "Who's Watching the NSA Watchers" - NYT).

We're undergoing near-strip searches at airports. We can't enter places where large public gatherings occur without having our bags and persons searched. Surveillance cameras are everywhere.

And for what?

With this latest tragedy--there allegedly were no "credible reports" of threats beforehand. And now CNN is reporting that surveillance videos have captured both the bombing itself and possibly the bomb-carrying backpacks as they were left behind. All of this after the fact.

And for what?

And now we'll seek vengeance--which we no doubt deserve. We'll catch the bastards that did this. But, what then--after we obtain "justice" and revenge? 

Will we subsequently lose even more rights and constitutionally guaranteed liberties--all in the name of "security"? Will it be worth it? Will it do anything at all to prevent these horrible, heart wrenching national tragedies?

I certainly don't have the answers. But I, like my fellow citizens, am grieving today--and hugging my family closer tonight. Because that's really the only thing you can do on days like today. 

Peace. Solidarity. Liberty. Hope.

And for what?

Why I support the Occupy Wall Street Movement


"Occupy Wall Street" PosterImage by Rob Sheridan via Flickr

The Occupy Wall Street Movement is calling attention to any number of problematic issues confronting our society right now. Many of us see what we want to see in the movement. I see it as rejection of corporate personhood and the undue influence of corporations at all levels of government and society. They've literally got their fingers in the policies that affect every aspect of our lives, touching everything from the food we eat and the value of our homes and bank accounts to the spin the media puts on these issues.

As with any citizen revolt, the first step is to draw attention to the problems, which the protestors have done--quite successfully. They've brought other issues to light as well, including the overzealous police force and the hypocrisy of our government when it comes to supporting protests in the Middle East while squelching them on our own soil. 

The unrest and despair of the middle and bottom of the US populace has been brought to light successfully. And, clearly, a lot of people are unhappy with the current state of affairs. Big banks and corporations can only get so many breaks while, during that very same timeframe, the average person suffers financially, barely scraping by for years on end before something has to give.

The next step is to organize, obtain monetary support and locate well-known or dynamic spokespersons, determine agendas and continue to raise consciousness. If this is truly a movement with staying power, that will occur. If it's just a blip in the history of our country, that will be obvious in due time.

But, I for one am proud of the "slackers" and "complainers" who are taking to the streets, exercising their first amendment rights and expressing their dissatisfaction with the status quo. After all, isn't that what this country is all about?

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I Have a Date With TSA Next Month


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.


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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected]

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Fear and Liberty Must Co-exist


This week's Daily Record column is entitled "Fear and liberty must co-exist."

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

Fear and Liberty Must Co-exist

“[F]ear cannot…allow…the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.”
Farag v. U.S., __F.Supp.2d__, 2008 WL 4965167 (EDNY 2008)

Just before Thanksgiving, the U.S. District Court for the Eastern District of New York addressed the intriguing issue of whether federal agents could rely solely on airline passengers’ Arab ethnicity when determining whether probable cause exists for their arrest.

In Farag v. U.S., the plaintiffs brought a Bivens claim against governmental entities and employees, asserting that their arrest and subsequent detention and interrogation violated their constitutional rights.

The plaintiffs, both of Egyptian descent, were long-time friends. One was an American citizen and a retired New York City police officer while the other possessed a valid U.S. Visa and was an Egyptian citizen, employed as a sales manager by General Electric.

After vacationing in California, the plaintiffs boarded a plane in San Diego bound for New York City. Counterterrorism agents were on the flight as well and subsequently detained and arrested the plaintiffs based on suspicions of terrorism.

The government asserted probable cause for the plaintiffs’ arrest existed based on non-ethnic factors. The court dismissed that argument, then turned to the government’s claim that the plaintiffs’ Arab ethnicity and use of the Arabic language were relevant factors in the determination of probable cause since the individuals who “participated in the 9/11 terrorist attacks were Middle Eastern males … [and] the United States continues to face a very real threat of domestic terrorism from Islamic terrorists.”

In other words, their position was that, in our post-9/11 world, the mere fact that an airline passenger is believed to be of Arab ethnicity is of great importance when determining probable cause since Arabs have a greater propensity to commit acts of terrorism than non-Arabs.

The court flatly rejected this argument, noting that precedent from both state and federal courts squarely supported the conclusion that ethnicity should not be used as the basis to support governmental intrusion under the Fourth Amend-

There is no doubt the specter of 9/11 looms large over the case. Although it is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the court cannot subscribe to the notion that in the wake of 9/11 doing so now is permissible. As the Second Circuit recently admonished, “the strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 490 F.3d 143, 159
(Second Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, __U.S.__, , 128 S.Ct. 2931, __L.Ed.2d__ (2008).

It is heartening to read those words in the context of a court decision, rather than an editorial. The United States is a great country founded on the principles of liberty and freedom from baseless governmental intrusions. Such protections, embodied in our Constitution and Bill of Rights, are what separate us from much of the world.

We cannot allow the horrors of 9/11 to reduce us to a land of people paralyzed by fear, full of hatred and distrust. Our legitimate concerns regarding our safety and the safety of our families must never be permitted to override the liberties and freedoms to which all people are entitled, regardless of their race, religion or creed.

Fear and liberty can co-exist. They must co-exist; otherwise the America we know will be no more.

Criminalizing the Victims


This week's Daily Record column is entitled "Criminalizing the Victims."

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


Criminalizing the Victims

The Appellate Division, Fourth Department on Oct. 10 declared that the City of Rochester’s youth curfew was unenforceable in Anonymous v. City of Rochester, 2008 N.Y. Slip Op.

At issue in the case was the legality of the youth curfew, which became effective Sept. 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sundays through Thursdays from 11 p.m. and 5 a.m., and between midnight and 5 a.m. on Fridays and Saturdays.

A minor accused of violating curfew could immediately be taken into custody and a conviction of the
ordinance constituted a “violation,” as defined in the Penal Law and was punishable by a sentence of up to 15 days in jail.

The “findings and purpose” of the youth curfew are found in section 45-1 of the ordinance, which provides that:

A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets
and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.

B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.

C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City.

The court balanced the government’s interests in enacting the statute with the constitutional rights of the plaintiffs and concluded the ordinance was inconsistent with state law as it applied to minors
younger than 16 and imposed unconstitutional restrictions on both the parents and minors affected by the curfew.

In reaching its decision, the court noted that the city failed to establish that the imposition of the curfew actually achieved the stated objectives behind its implementation:

The Mayor and the Chief of Police expressed their opinions and beliefs concerning the particular vulnerability of juveniles during nighttime hours, but those opinions and beliefs are insufficient to demonstrate a substantial relationship between the ordinance and its goals. …[T]he information concerning the results of the implementation of juvenile curfews in other municipalities is equivocal at best and does not establish the necessary relationship between the ordinance and the goals of reducing juvenile crime and victimization.

I find it particularly ironic that one of the primary goals of the youth curfew was to reduce the victimiza-
tion of our city’s youth since, for some, it may have had the exact opposite effect.

During the four years that I was a Monroe County assistant public defender, I was entrenched in the lives
of a certain segment of the city’s population. Many of the people I represented were involved in the criminal justice system as a result of horrible drug addictions. And, many of these people, most of whom were barely able to take care of themselves, had children.

I can only imagine the state of the home lives of their children. Physical and sexual abuse is commonplace in such households, as the addicts perpetuate the cycles of abuse to which they were
subjected as children.

When your caregiver is addicted to drugs, the streets may seem a far safer alternative than being trapped in a small apartment with an addict, subject to their unpredictable, erratic and abusive behavior. 

Where the objectives of a youth curfew are unproven and unrealized, it is unforgivable to jail children for taking to the streets as a form of escape and self-preservation.  Criminalizing attempts to avoid victimization simply is not the answer.

Does Security Require the Loss of Liberty?

Drlogo11 This week's Daily Record column is entitled "Does Security Require the Loss of Liberty?"

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


Does Security Require the Loss of Liberty?

Men fight for liberty and win it with hard knocks. Their children,
brought up easy, let it slip away again, poor fools. And their grand-
children are once more slaves
—D.H. Lawrence, “Classical American Literature,” 1922

I prefer liberty with danger to peace with slavery.

By the year 2010, the New York City Police Department plans to photograph and track every vehicle that
enters Manhattan.

The goal of the program, “Operation Sentinel,” is to fight terrorism by collecting data from every vehicle traveling along seven tunnels and bridges —the Brooklyn-Battery, Holland, Lincoln and Queens-Midtown tunnels, and the George Washington, Henry Hudson and Triborough bridges.

Under the plan, all cars and trucks will be photographed and their license plates will be scanned and saved in a database in Lower Manhattan for at least one month. In addition, sensors will be used to scan each vehicle in an effort to detect radioactivity.

Operation Sentinel will work in tandem with a $70 million federal program, “Securing the Cities,” and the Lower Manhattan Security Initiative, a $90 million project that includes implementation of a video
surveillance system around Lower Manhattan that will track thousands of people each day. The stated goal is to have more than 3,000 cameras in place by the end of the year.

The video surveillance system is being referred to as a “ring of steel” and is modeled after the system used in London’s financial district.

That fact is particularly interesting, given that the video surveillance system in place at the time of the terrorist attacks in London did nothing to prevent the bombings. Rather, the surveillance tapes simply assisted authorities in identifying and rounding up suspects after the attacks occurred.

It would seem, then, based on the lessons learned from the London attacks, that any sense of safety provided by constant governmental surveillance of New Yorkers’ movements would be illusory, at best.

The only aspect of the plan that is arguably preventative is the intent to scan vehicles for the presence of radiation. Brief investigations of positive readings likely would be rare and would serve the stated purpose of preventing an attack, rather than assisting in seeking vindication after the fact.

The need for vindication following a terrorist attack is natural and understandable, but where the vast majority of the $160 million likely will serve to achieve vindication, rather than prevention, it seems a bit excessive.

Last week, New York City Mayor Michael Bloomberg defended Operation Sentinel and offered the following rationale for its implementation: “New York City is something special. It’s not just a very big city in this world. It is, in many senses, the iconic city. It represents Western Democracy.”

Bloomberg is correct. New York City, with the Statue of Liberty in its harbor, is a symbol of the very freedom and liberty upon which our great nation was founded.

If we must erode our civil liberties in the name of terrorism, shouldn’t the primary goal in doing so be prevention, not vindication after the fact? Is the loss of our freedoms truly outweighed by the minimal preventative benefits of surveillance cameras and tracking systems? Is the slow demise of our civil liberties in the name of the battle against the nebulous enemy, “terrorism,” truly worth it?

War on Terrorism Collides with Attorney-Client Privilege

Drlogo11 This week's Daily Record column is entitled "War on terrorism collides with attorney-client privilege."

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


War on terrorism collides with attorney-client privilege

In an effort to combat the somewhat nebulous concept of “terrorism,” laptops and other digital devices are currently subject to warrantless inspections at the border.

On July 16, in response to demands from civil liberties groups, two Department of Homeland Security agencies, the U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, released policies on border searches of electronic devices, such as laptops and smart phones. The policies obviously are of great interest to any lawyer who travels internationally, in light of ethical obligations and the confidential nature of the information likely stored on such devices.

The polices provide, in relevant part:

[O]fficers may examine … computers, disks, hard drives, and other electronic or digital storage devices…absent individualized suspicion…transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States. ... Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. … [I]f after reviewing the information there is not probable cause to seize it, any copies of the information must be destroyed… To assist CBP in determining the meaning of such information, CBP may seek translation and/or decryption assistance from other Federal agencies or entities. Officers may seek such assistance absent individualized suspicion. … [However] [n]othing in this policy limits the authority of an officer to make written notes or reports or to document impressions relating to a border encounter.

Attorney-Client Privileged Material. Occasionally, an individual claims that the attorney-client privilege prevents the search of his or her information at the border. Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures. Correspondence, court documents, and other legal documents may be covered by attorney-client privilege. If an officer suspects that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.

In other words, U.S. officials virtually have unfettered discretion to conduct warrantless, suspicionless laptop and smart phone searches at the border, a policy that seemingly flies in the face of the Fourth Amendment and causes extreme consternation for privacy and civil rights advocates.

Despite the obvious privacy implications of the border search policies, so far both the Fourth and Ninth U.S. Court of Appeals for the Fourth and Ninth Circuits have upheld the legality of such searches, likening the search of a computer’s hard drive to the search of the contents of a briefcase.

However, congressional hearings recently were conducted to examine the constitutionality of such searches and Senator Russell Feingold has said he intends to introduce legislation that would require reasonable suspicion as a prerequisite to border searches of electronic devices. 

The border searches present a unique set of issues for lawyers who travel internationally. While the policies regarding the searches purport to provide for special procedures in the event attorney-client privilege is asserted, there is ample room for the arbitrary exercise of discretion on the part of border
patrol agents when making the determination as to whether a device is subject to the special handling procedures applicable to attorney-client material.

A foolproof method for protecting confidential information has yet to be agreed upon universally. Some computer experts have suggested lawyers consider encrypting confidential client files, while others recommended using Web hosting services for e-mail and file storage in lieu of storing such information on a device’s hard drive.

Until suspicionless laptop searches are declared unconstitutional or otherwise restricted, lawyers traveling internationally will face an unresolved ethical quandary worthy of inclusion on a bar exam.

The Lawsuit That Never Should Have Been

Drlogo11_2 This week's Daily Record column is entitled "The lawsuit that never should have been."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.

The lawsuit that never should have been

“Where the use of Mounted Unit becomes necessary for crowd control purposes, incident commanders are reminded that if Mounted officers are deployed for such purpose it is important to ensure that a crowd or group to be dispersed has suffi- cient avenues of escape and/or retreat available to them and has a reasonable chance to disperse.”

— Paragraph 3 of the March 28 settlement order in Stauber and the New York Civil Liberties Union v. the City of New York, 03-cv-09164

In 2003, the New York Civil Liberties Union filed a lawsuit against the New York Police Department on behalf of protesters injured by police during peaceful antiwar demonstrations. 

The complaint alleged the NYPD prevented protesters from leaving police barricaded areas and approached the trapped crowds on horseback, causing injuries to many in attendance.

The plaintiffs included a then-law student, now an attorney, who was injured by a police horse and a woman confined to a wheelchair who alleged she was trapped behind a police barricade and her wheelchair was damaged by a police officer when she attempted, for medical reasons, to leave the barricaded area.

Pursuant to the Settlement order, the defendants agreed to pay $100,000 in attorneys fees to the New York Civil Liberties Union and $25,000 in damages to the injured plaintiffs. 

The NYPD also agreed to adopt written policies that ensure those lawfully exercising their First Amendment rights can gain access to protest areas, have adequate means of ingress and egress from the areas set aside for the protest, and that police provide adequate warning and an opportunity to disperse prior to using the Mounted Unit for crowd control.

In other words, the police agreed, apparently because they had no other choice, to give people a chance to get out of the way before charging into crowds on police horses, each of which weighs a ton or more.

It would seem this last concession would have been self-evident to the Mounted Police as they sat atop their large horses, looking down on the tiny mortals below them — some in wheel chairs, some with children, some with long, unkempt hair — engaging in a process as American as apple pie: peacefully protesting a contentious war. 

Shouldn’t “New York’s finest” have known better than to stomp on its citizens with the heavy hooves of horses? One would think that in 21st century America, such flagrant abuses of police power wound be a thing of the distant past.

One would hope taxpayers wouldn’t have to foot the bill for a costly lawsuit brought to prevent the NYPD from using horses to stampede the very same people it is paid to protect.

And yet, it turns out such wishful thinking is apparently naïve, at best, since that is exactly what New York taxpayers had to do: pay damages to the injured plaintiffs, pay attorneys fees to their counsel and fund the investigation and defense of a lengthy federal lawsuit for police conduct that never should have occurred in the first place.

Police conduct in this instance was deplorable just as the costs of defending the abusive conduct were unnecessary and unforgivable. 

All the more unforgivable is the fact that this claim was even necessary to protect our constitutional right to gather and engage in peaceful protest, for this was a lawsuit never should have been.