Sui Generis--a New York law blog

Should Facial Recognition Software Be Banned?

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

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Should Facial Recognition Software Be Banned?

Does facial recognition technology present a unique and unprecedented threat to our privacy? According to Evan Selinger, RIT philosophy professor and expert on the ethical and privacy implications of technology, the answer is “yes.” At least, that’s what he told us earlier this month when he spoke to a group of lawyers here in Rochester.

This presentation was sponsored by the Monroe County Bar Association’s Technology and Law Practice Committee and was held at the upstairs meeting room at 80W restaurant. I’m the chair of this committee and this TechTalk, was part of an upcoming series of talks that are the brainchild of committee member Aleksander Nikolic, a Rochester IP attorney with Heslin, Rothenberg, Farley & Mesiti, P.C.

During this talk,"Who Stole My Face? The Privacy Implications of Facial Recognition Technology,” Selinger shared the reasons for his belief that facial recognition software should be banned. His basic premise was that that facial recognition technology should be banned across the board until regulations are enacted that will control when and how it is used, and by whom.

Selinger explained that facial recognition technology is unique in its invasiveness and in its potential for causing harm. In large part this is because our faces are central to our identities, and due to social norms and unlike other biometric data such as our fingerprints or DNA, are typically fully viewable when we’re in public. Similarly, because images of our faces are easily captured, both online and off, that data is more vulnerable to use and abuse by law enforcement agencies and private entities.

According to Selinger, the use of facial recognition technology by law enforcement is particularly problematic due to its invasiveness and increasing pervasiveness. This is in part due to the risks presented when law enforcement officers seek to use facial recognition tools as part of their investigatory, screening, and crime prevention arsenals. One example offered by Selinger is that in some cases law enforcement agencies have obtained images from driver’s licenses issued by the DMV and used them for investigatory purposes including in lineups.

The use of facial recognition technology in this manner is of particular concern since the underlying programming used to create facial recognition software often leads to biased results that can have life-altering effects for those being screened by it. For example, in a study conducted by the ACLU last year, it was determined that the programming behind Amazon's facial surveillance technology, Rekognition, was inherently biased.

In the study, Amazon’s facial recognition software was used to compare photos of members of Congress to mugshots of people who had been arrested for a crime. Rekognition incorrectly identified 28 matches between members of Congress and the mugshots. Notably it was members of Congress who were people of color that were disproportionately affected by these errors. That same software also has been shown to have difficulty identifying women’s faces and has incorrectly determined that women were men.

Selinger asserted that legislation recently passed in San Francisco, Somerville, Berkeley, and Oakland that bans the use of facial recognition tools by law enforcement is a step in the right direction. I agree with him, but realistically, I tend to believe that the use of facial recognition technology is already pervasive enough that it's going to be difficult to unring that bell. After all, the legislative process tends to move at a snail's pace, while technology is advancing at rates never before seen.

That being said, only time will tell. All in all, Selinger’s presentation was a fascinating one and was well received by everyone in attendance. If it sounds interesting to you, then you’re in luck! As mentioned above, this was the first in a series of TechTalks that the Committee will be hosting, and each presentation will focus on the intersection of technology and the law. Future talks will be open to the business community as well as attorneys, so make sure to visit the Monroe County Bar Association’s website (www.mcba.org) for details about upcoming TechTalks. We hope to see you next time!

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 [email protected]. 

New York court allows smartphone search in absence of a warrant

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

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New York Court Allows Smartphone Search in Absence of a Warrant

Smartphones have been around for 12 years now and during that time, they’ve become indispensable for many of us. They are small computers that we hold in the palms of our hands that provide us with access to the world. We use them to obtain information, share information, connect with friends and family, conduct work, and communicate, among other things. Smartphones have become central to the lives of most Americans. They’re the first thing we look at when wake up and the last thing we look at before going to sleep.

So it’s no surprise that in recent years, law enforcement officers have often sought access to smartphones in the course of their investigations. And as a result, courts have increasingly grappled with the constitutional issues presented by these requests.

For example, the United States Supreme Court addressed the issue of whether law enforcement could obtain historical cell phone records last year in Carpenter v. U.S., 138 Sup. Ct. 2206 (2018). In that case, the Court determined that a warrant was required in order to access the geolocation data stored in historical cell phone records.

But when it comes to law enforcement access to real-time cell phone data, the law reminds unsettled. In People v. Gordon, 58 Misc. 3d 544 (Sup. Ct. 2017), the issue presented was whether the pen register statute applied to the use of a cell site simulator to determine a suspect's location via geolocation data obtained from a cell phone. The Court concluded that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”

A similar conclusion was reached in Massachusetts Supreme Court opinion Commonwealth v. Almonor, No. SJC-12499 (2019), which I wrote about in April. In that case, the Court considered whether “whether police action causing an individual’s cell phone to reveal its real-time location constitutes a search in the constitutional sense” and concluded that it does in fact constitute a search when law enforcement obtains real-time location data from a cell phone provider.

Another issue that has cropped up in numerous court opinions around the country is whether law enforcement may compel an individual to provide biometric data in order to access a smartphone. I recently wrote about that issue in January when I covered a case handed down by Northern District of California Magistrate Judge Candice A. Westmore. In The Matter of the Search of a Residence In Oakland, California, Case No. 4-19-70053, the Court denied law enforcement’s request for 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…” on the grounds that doing so would violate the individuals’ Fifth Amendment privilege against self incrimination.

But what about physical access, as opposed to digital access, to a smartphone? Is a warrant required for that? According to a recent New York case, the answer is “no.” In People v. Ward, 169 A.D.3d 833 (2d Dep’t 2019), the court considered whether the physical search of a defendant’s cell phone fell within search incident to arrest exception to the Fourth Amendment's warrant requirement. The Court concluded that it did, explaining that “unlike in Riley, the subject was a physical search of the phone, in which the police opened the back of the phone and looked under the battery to obtain the phone's serial number. As such, the intrusion on the defendant's privacy was limited to the fact of his ownership of the phone, and did not implicate any of the aspects found to distinguish a digital search from a search of any other physical object…”

Another day, another opinion on law enforcement access to smartphones. Since smartphone technology is unceasingly evolving and changing at a quick clip, new issues regarding access to information that is contained on, in, and is accessible via these devices will continue to arise. The various permutations of these issues will no doubt present fascinating legal decisions that will have long-lasting privacy implications.

Let’s hope that the courts will continue to stay abreast of rapid technological advancements, all the while thoughtfully balancing our fundamental privacy rights with the needs of law enforcement. This is especially important given the rapid expansion and invasiveness of technology in 2019. Now, more than ever, it’s increasingly imperative for judges to keep up with the pace of change. Freedom from governmental intrusion is the very bedrock of our democracy; to allow misunderstood technology to chip away at that foundation would contravene the very principles upon which this great country was founded.

 

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 [email protected]. 

Massachusetts weighs in on law enforcement access to real-time geolocation data

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

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Now that most Americans own smartphones, privacy issues abound. Our devices collect a vast array of information about us. Some of this data is stored on our devices and some is shared with our service providers. As a result, one issue that has cropped up repeatedly is when and how law enforcement may access cell phone data.

One particular type of data often sought by law enforcement is geolocation information. Our mobile devices provide both real-time and historical data regarding our location at any given time. Obviously this information has the potential to be incredibly valuable in the context of a criminal investigation, so it’s not surprising that law enforcement often seeks to obtain it.

The United States Supreme Court addressed the issue of whether law enforcement may obtain historical cell phone records last year. In Carpenter v. U.S., 138 Sup. Ct. 2206 (2018), the Court held that a warrant was required in order to access historical cell phone geolocation data.

The law is not yet settled regarding access to real-time cell phone data, however, so I read with interest a Massachusetts Supreme Court opinion that was handed down last week that addressed this very issue. In Commonwealth v. Almonor, No. SJC-12499, the Court considered whether “whether police action
causing an individual’s cell phone to reveal its real-time location constitutes a search in the constitutional sense.”

In this case, the defendant was identified as a murder suspect, and one of the witnesses to the crime provided police with the defendant’s name and cell phone number. After obtaining other evidence, the investigating officer contacted the defendant’s cell phone provider and requested several pieces of information, including the precise, real-time location of the defendant’s cell phone.

Eventually the provider “pinged” the defendant’s cell phone and provided law enforcement with the exact location of the defendant’s cell phone. Officers then drove to that location, obtained consent to enter the home, and arrested the defendant therein. The defendant moved to suppress the arrest on the grounds that the ping of the defendant's cell phone was a search under the Fourth Amendment and Article 14 of the Massachusetts Constitution.

In reaching its decision on the issue, the Court acknowledged that a delicate balance was required when considering the enhanced surveillance capabilities that technological advances provided law enforcement. The Court explained that it is important to carefully “guard against the…power of technology to shrink the realm of guaranteed privacy…(and) that privacy rights cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adopted.”

The Court noted that when police direct a service provider to “ping” a cell phone to determine its real-time location, it raises “distinct privacy concerns,” especially since said data would not be collected in the absence of law enforcement’s request. Notably, the Court determined that there is a reasonable expectation of privacy in this situation since cell phones are such an indispensable part of our lives and provide an incredible amount of information about their owners. The Court explained that “society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.”

As such, the Court concluded that it constitutes a search when law enforcement obtains real-time location data from a cell phone provider, since doing so intrudes on the cell phone owner’s reasonable expectation of privacy. The Court explained that to conclude otherwise would “shrink the realm of guaranteed privacy…under art.14 and leave legitimate privacy rights at the…mercy of advancing technology."

Although the Court held that the exigent circumstances exception applied to the facts of this case, the overall holding is a step in the right direction.

Technology is pervasive in our lives and offers so many benefits. But when used by law enforcement, can sometimes be abused in new and increasingly invasive ways. Decisions like this one provide much-needed analysis and insight into the application of constitutional protections in the face of rapidly evolving technological innovation.

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 [email protected]. 

When technology and law enforcement collide

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

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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 [email protected]. 

Federal judge on whether biometric access to phones requires a warrant

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

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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 [email protected]. 

Another New York court weighs in on access to cell phone geolocation data

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

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Another New York court weighs in on access to cell phone geolocation data

Last week I wrote about a case that I came across while conducting research for the annual update of the Thomson Reuter’s substantive criminal law book that I co-author, “Criminal Law in New York.” That case, People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), concluded that a warrant was not needed to obtain historical cell phone records in order to view a user’s location data. (Notably, the holding in Jiles was contradicted by the conclusion reached in a subsequent United States Supreme Court decision, Carpenter v. U.S., No. 16-402, 585 U.S. ____ (2018), which I wrote about in this column in July).

In conducting my annual research, I encountered another interesting case addressing a similar, but slightly different issue: People v. Gordon, 58 Misc. 3d 544 (NY Sup. Ct. 2017). The question in this case was whether the pen register statute applied to the use of cell site simulator to determine a suspect's location  via geolocation data obtained from a cell phone.

The defendant in this case was charged with a number of different crimes, including attempted murder in the second degree. While investigating the case, the police sought to locate the defendant using his cell phone and applied for a judicial pen register/trap and trace authorization for the defendant’s cell phone, and specifically requested to use a cell site simulator.

The request was granted, and included use of the cell site simulator. The defendant was located shortly thereafter and arrested. He filed a motion to suppress the results of the information gleaned from the cell site simulator on the ground that it was unlawfully obtained.

At the outset, the court examined the pen register/trap statute, New York's CPL Art. 705.00, noting that its intent is provide law enforcement with limited access to specific cell phone data, namely “the numbers dialed or otherwise transmitted in outgoing and incoming calls.” The court noted that unlike federal law, which was recently expanded, it does not “does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.”

Next, the court explained that due to the strictly limited nature of the information obtained from pen register/trap devices, law enforcement need only show reasonable suspicion in order to obtain a judicial order under the statute. The rationale behind the lower standard of proof is that “pen register/trap and trace devices only record the phone numbers dialed-outgoing or incoming-and do not disclose more than what phone users voluntarily convey to the telephone company in the ordinary course of business.”

The court then compared the type of data obtained from pen register/trap devices to the more intrusive information collected by GPS devices. It explained that because of the increased level of intrusiveness, the New York Court of Appeals has concluded that the New York State Constitution requires law enforcement to make a showing of probable cause in the absence of exigent circumstances prior to a warrant being issued for the use of a GPS tracking device.

Next the court turned to an examination of how cell site simulators work, explaining that cell site simulators collect information from a specific device rather than a cell phone provider. According to the court, “(i)n addition to downloading information from all the cellular phones located in the area, a cell site simulator can be used to locate a specific cellular phone when the phone owner's phone number is known, but not the location…” and maybe even be able to “obtain and record a wide array of data from an individual's cell phone, including highly precise real time cell phone location and the contents of voice and text communications.”

The court granted the defendant’s motion to suppress concluding that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”

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. You can follow her on Twitter at @nikiblack or email her at [email protected]. 

Fourth Amendment ramifications of Facebook “searches” by police

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

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Fourth Amendment ramifications of Facebook “searches” by police

I’ve written extensively in the past about the ethical obligations of lawyers who seek to obtain evidence using social media. The specific issues addressed in ]that context are irrelevant for the purposes of this column, but of note is that all of the ethical opinions on the topic of lawyers mining social media for evidence differentiate between publicly available information and that which is only accessible behind a privacy wall. In other words, the rules are different when lawyers or their agents seek to connect with someone online via a social network in order to view posts that can only be viewed by a person’s connections or “friends.”

But what happens when law enforcement officers seek to do the same thing - obtain social media evidence that can only be accessed behind a privacy wall? One of the more interesting issues to consider is whether the conduct constitutes a search, and if so, does “friending” someone in order to view information behind a privacy wall - in the absence of a warrant - violate the Fourth Amendment?

That very issue was addressed in Everett v. Delaware, No. 257, 2017. The question asked of the court was: “When a person voluntarily accepts a “friend” request on Facebook from an undercover police officer, and then exposes incriminating evidence, does the Fourth Amendment protect against this mistaken trust?”

In this case, a police detective created a fake Facebook profile and eventually sent the defendant a “friend” request, which was accepted. The detective then monitored the defendant’s Facebook account for 2 years, viewing it 1 to 3 times per week. The defendant had a number of violent felony convictions and was thus unable to possess firearms. Shortly after he posted a photo to Facebook that included firearms, among other items, the detective applied for a warrant to search the defendant’s home, which was granted. The subsequent search resulted in evidence that was later used to prosecute the defendant for numerous felonies. The defendant was convicted after trial and this appeal challenging the constitutionality of the original search of his home was filed.

In reaching its decision, the Court applied a 2-step inquiry. Its first task was to ascertain whether the Facebook monitoring violated the Fourth Amendment or Article I, Section 6 of the Delaware Constitution. If so, then its remaining task was to, after removing the tainted evidence from the warrant affidavit, determine whether the information remaining provided a neutral magistrate with probable cause to issue a search warrant.

The Court did not reach the second step of the inquiry since it concluded that the defendant did not have a reasonable expectation of privacy when he shared information with people that he chose to make his Facebook friends. The Court explained that the defendant “assumed the risk” that one of his “friends” might be an undercover officer:

“(T)he Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntary disclosed such information might turn out to be an undercover officer or a ‘false friend.’ One cannot reasonably believe that such ‘false friends’ will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.”

In other words, caveat emptor: social media-users beware. The lesson to be learned is to only share information with your online “friends” that you would readily share with a law enforcement officer. After all, as I always say, better safe than sorry!

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].

Can consent to search be obtained via Google Translate?

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

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Can consent to search be obtained via Google Translate?

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Here 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 [email protected].

 

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 [email protected].