Criminal Law

The legality of probation conditions that allow searches of electronic devices

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

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Technology creep is an unavoidable phenomenon. These days, technology is impacting just about every aspect of our lives, and its effects are unavoidable. The criminal justice system certainly isn’t immune from this trend, with evidence of this fact cropping up on a near daily basis.

One situation I’ve covered in the past is the ways that technology intersects with the conditions of probation and parole. For example, in 2015, I wrote about Hector Salvador Lopez, a young man in California whose probation term included a condition requiring that he provide his probation officer with the passwords to any “social media sites” that he participated on. Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites. The Court rejected his assertion and the condition remained in effect.

More recently, on August 15th of this year, the Supreme Court of California considered a similar issue: whether a probation term properly included the requirement that the probationer be required to submit to an electronics search. Specifically, in Ricardo B, S230923 (online: https://tinyurl.com/InReRicardoP), the Court was asked “to decide whether an electronics search condition like the one at issue here is ‘reasonably related to future criminality.’”

Specifically, the probation condition at issue required that the probationer submit to a search of “electronics including passwords under [his] control…at any time of day or night.”

At the outset, the court noted the sweeping nature of this condition: “The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles.”

The Court also acknowledged the invasiveness of the provision and the privacy implications that it triggered: “The warrantless search of a juvenile’s electronic devices by a probation officer, a government official, plainly raises privacy concerns of a different order than parents checking their children’s cell phones.”

Next the Court turned to the specifics of Ricardo’s case, noting that there was no correlation between any crimes he’d committed in the past and probationary search provision. The Court explained that “nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that Ricardo had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’”

Accordingly, the Court concluded that after balancing the invasive nature of the probation requirement against the purported reasons for its imposition by the sentencing court, the clause should be removed from his probationary conditions. The Court held that because “the record here…contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity…(and) is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid…”

A just result if I’ve ever seen one. As the Court noted, the data stored on electronic devices often includes some of the most personal and intimate information available about a person and those they love. For that reason, sentencing courts should tread lightly and refrain from allowing probation officers unfettered access to this data absent strong evidence that doing so would forward the goals of probation in light of the probationer’s history and crime.

This is because governmental access to electronic data should always be carefully and thoughtfully considered and should be permitted only in very limited circumstances. Privacy rights should always trump law enforcement interests, especially where technology is concerned. While that doesn’t always happen, it’s heartening to see that privacy concerns prevailed in this case.

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. 


New York court allows smartphone search in absence of a warrant

Stacked3Here 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 niki.black@mycase.com. 


Electronic signature sufficient for supporting deposition

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

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Electronic Signature Sufficient for Supporting Deposition

Every summer, during the course of conducting research for the annual update to the book I co-author with Judge Karen Morris, Criminal Law in New York, I often come across cases that offer an interesting take on the intersection of law and technology. People v. Almodovar, 63 Misc.3d 994 (Crim Ct. 2019) is just such a case.

At issue in this case is the sufficiency of the accusatory instrument charging the defendant with assault in the third degree, menacing in the second and third degree, criminal possession of a weapon in the fourth degree, and harassment in the second degree. Specifically, the defendant asserted that the accusatory instruments were defective due to the fact that “the supporting deposition's electronic signature is invalid under New York State law.”

In this case the accusatory instruments consisted of, in part, a complaint and the complainant’s supporting deposition attesting that the facts set forth in the complaint were true and were based upon her personal knowledge. The supporting deposition had been electronically signed and included the following language:

*The above is an “electronic” signature that has been authorized by the above named person pursuant to New York's electronic Signature and Records Act and New York State's Technology Law Section[s] 301-[309] (2002).”

Also submitted with the complaint was the affirmation of an assistant district attorney (ADA), which also included an email exchange between the ADA and the complainant that resulted in the complainant providing her electronic signature. The ADA’s affirmation provided, in relevant part, as follows:

(1)On or about, I spoke to [CARMEN LOPEZ] in the above-entitled action, and he/she agreed to sign the supporting deposition electronically.
(2)In addition, the attached emails were sent from my office email account to the complaint's email account.
(3)The attached emails are a complete and accurate copy of the emails I sent to the complainant in the above-entitled action and the complainant's response.
(4)After I received the attached email exchange, I called the complainant and confirmed that he/she typed the attached response.

In reaching its decision, the court examined the legislative intent behind the enactment of New York State Technology Law § 304 (2), which specifically allows the use of an electronic signature on most legal documents, unless otherwise provided by law. The Court noted that when the Legislature enacted the law, it did not include criminal court complaints or supporting depositions on the the list of enumerated exceptions.
The Court also considered the rulings recently handed down by a number of New York courts that had concluded that the use of an electronic signature on a supporting deposition was permissible.

Based on its analysis, the Court rejected the defendant’s argument, which was that the electronic signature was invalid since the email address used to register the electronic signature did not contain the complainant’s name, and thus someone else could have executed it. The Court proffered the following explanation:

(T)here is nothing in the State Technology Law that requires a person to only utilize an email address that contains their personal identifying information to execute an electronic signature. Indeed, it is the court's experience that people often do not put their names or other identifying information in their personal email addresses in order to deter identity theft, for privacy reasons, or simply because it is not available when they signed up for their email account.

Accordingly the Court concluded that the electronic signature on the supporting deposition was valid, and as such, the accusatory instrument was facially sufficient.

The Court’s conclusion was the correct one. Times are changing and technology’s impact cannot be ignored, even in the Halls of Justice. Electronic signatures are now commonplace and have binding legal effects; criminal courts should not be immune from this 21st century reality.

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. 


ABA on the ethical obligations of prosecutors in misdemeanor cases

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

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Today I came across a headline that I assumed at first glance was an Onion article or some other type of satire. It had to be. The ABA Journal headline stated something that I’ve always assumed was simply a given: “Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says.”

Note that what the headline failed to mention was the the opinion addressed prosecutors obligations when interacting with unrepresented misdemeanor defendants. But even so - come on! How could there be any confusion on that issue? Prosecutors are lawyers and, just like the rest of us, they’re required to act ethically at all times. There’s no “misdemeanor or lower” exception to ethics requirements. At least, not that I’m aware of.

But, nevertheless, the fact that the ABA felt the need to weigh in on this is an indication that there was a need for further clarity on this issue. And, if the ABA deems this topic important enough to opine on, then I likewise believe that it’s important enough for me to write about. So if you’re as curious as I was about this opinion, then buckle up and let’s dive in.

In Formal Opinion 486, which was handed down on May 9th, 2019, the ABA Standing Committee on Ethics and Responsibility considered the ethical obligations of prosecutors when negotiating and plea bargaining with unrepresented individuals accused of misdemeanors.

At the outset, the Committee acknowledged that while most prosecutors perform their job functions ethically, that’s not always the case: “Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct.”

The Committee then turned to the accused’s right to counsel, noting that it is unethical for prosecutors to interfere with this right in any way: “Under Model Rule 3.8(b) prosecutors must make reasonable efforts to assure that unrepresented accused persons are informed of the right to counsel and the process for securing counsel, and must avoid conduct that interferes with that process.”

Next, the Committee tackled the plea bargaining process, explaining that when a defendant is unrepresented, prosecutors must discuss the known consequences of a proposed plea deal with the accused. This is because an unrepresented defendant is in a uniquely vulnerable position. As such, “if the prosecutor knows the consequences of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during the plea negotiation.”

The Committee further elaborated on the obligations of prosecutors in this situation and provided examples of impermissible conduct:

“Thus, where a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea on that charge, statements like the following would constitute prohibited misrepresentations:

‘Take this plea for time served and you are done, you can go home now.’

‘This is a suspended sentence, so as long as you comply with its terms, you avoid
jail time with this plea.’

‘You only serve three months on this plea, that’s the sentence.’”

The Committee then turned to a prosecutor’s ethical obligations when extending a plea offer to an unrepresented and clarified that prosecutors cannot do so unless there is sufficient evidence to support the plea offer: “Under Model Rules 1.1, 1.3, 3.8(a), and 8.4(a) and (d), prosecutors have a duty to ensure that charges underlying a plea offer in misdemeanor cases have sufficient evidentiary and legal foundation.”

Finally, the Committee noted that a prosecutor’s ethical obligations extend to post-plea interactions: “If a prosecutor learns during the plea colloquy with the court or other interactions that the unrepresented accused’s acceptance of a plea or waiver of the right to counsel is not in fact voluntary, knowing, and intelligent, or if the plea colloquy conducted by the court is inadequate to ascertain whether the plea or waiver of the right to counsel is in fact voluntary, knowing, and intelligent, the prosecutor is obliged to intervene.”

That this opinion was even issued, my friends, is an unfortunate reminder of the state of our profession in 2019. That being said, it serves as a welcome, and much-needed, reminder to prosecutors who may be walking a fine ethical line when it comes to many of these issues: always ensure that you walk on the right side of that line, or risk losing your license to practice law.

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. 


New York court on privacy expectations in social media accounts

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

*****

Every year around this time I begin to conduct research for the annual update to the Thomson Reuters criminal law treatise, “Criminal Law in New York,” that I co-author with Brighton Town Court Judge Karen Morris. During the course of my research I often discover cases that arise from interesting overlaps of technology and criminal law.

This year has proven to be no different, and last week I stumbled upon an interesting case from New City Criminal Court, which focuses on issues relating to whether the access to social media accounts by law enforcement triggers constitutional privacy interests.

In People v. Sime, 62 Misc.3d 429 (2018), one issue addressed by the Court was whether the defendant had a constitutionally protected privacy interest in the IP data and photograph metadata that she had uploaded and shared online via a public Instagram account.

In this case, the defendant was charged with, in part, unlawful disclosure of an intimate image in violation of Administrative Code of the City of New York § 10-177 [b][1]. It was alleged that the defendant, who was dating the complainant’s ex-boyfriend, posted nude photos of the complainant to two different Instagram accounts. The photos were allegedly taken by the complainant’s ex-boyfriend. One of the Instagram accounts was alleged to belong to the ex-boyfriend and the other was alleged to have been created in the complainant’s name by the defendant. As part of that prosecution, the court issued a search warrant on Instagram seeking access to the data connected with the two Instagram accounts.

The defendant challenged the search warrant, asserting that it was not supported by probable cause. She conceded that she did not have a privacy interest in the posted photos since they were shared on an account that was open to the public and had no privacy settings enabled. Accordingly, her argument was based instead upon the assertion that “there is a general right to privacy for the IP addresses associated with the person who posted the pictures and the metadata contained in the photographs public (sic.) posted pursuant to the recently decided case Carpenter v. United States, 138 S.Ct. 2206 [2018].”

As I explained in my article last week, in Carpenter the Court held that a warrant was required in order for law enforcement to access historical cell phone geolocation data. In the case at hand, the Court disagreed that the Carpenter holding was applicable on the gourds that IP data and metadata relating to an Instagram photo is not analogous to cell phone geolocation data.

The Court explained that unlike historical cell phone geolocation data, IP data does not necessarily provide information regarding the defendant’s specific location:

“Obtaining IP data does not provide the police the ability to exhaustively know a defendant's exact position — at best it might incidentally reveal what device was used to post a photograph in the general vicinity of an internet router. In other words, at most it will let the police find a building near the used cell phone or computer device on discrete dates when pictures were uploaded for the public to view, and has no bearing on the defendant's day-to-day movement…Similarly, photograph metadata might let you know what camera was used to take a particular picture, and (if it was not already obvious from the picture itself) where that picture was taken.”

Because IP data and metadata provide only a brief snapshot of the user’s location at any given time, the Court compared IP data and metadata to telephone billing records, in which customers have a lower expectation of privacy: “IP data and metadata are roughly analogous to telephone billing records, and there is no legal reason to protect this data to the same extent as long-term GPS data and cell-site information.”

Accordingly, the Court denied the defendant’s motion challenging the search warrant, concluding that “(T)here is no constitutional privacy afforded to the IP data and photograph metadata that the defendant uploaded and shared with the world, nor would a subjectively held privacy expectation be reasonable or one that society is prepared to recognize.”

Digital privacy rights are an important and evolving issue. Now that online interaction and mobile device usage are commonplace, data regarding all aspects of our daily lives is regularly collected by a host of third parties. As law enforcement increasingly seeks access to that information, courts will necessarily continue to grapple with the constitutional nuances presented by varying factual scenarios - and rest assured, I’ll continue to cover their efforts in this regard.

 

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. 


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

Stacked3Here 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 niki.black@mycase.com. 


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. 


Fitbit Evidence Provides Alibi For Victim’s Boyfriend

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

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Fitbit Evidence Provides Alibi For Victim’s Boyfriend

Last week, I wrote about a recent case where Fitbit data was used in a California case to convict the defendant, the victim’s step-father, of her murder. In that case, the victim was wearing a Fitbit and her heart rate data obtained from the device conflicted with the defendant’s version of events, ultimately resulting in his conviction.

That wasn’t the first time I covered the impact of wearable devices in court. in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations. Then in 2017, I covered a case where Fitbit data and other digital evidence was used in a Connecticut murder prosecution to convict the defendant of murdering his wife.

Another criminal case from earlier this year in Wisconsin that I haven’t yet covered was notable because it involved Fitbit data being used as alibi evidence. In that case, the defendant, George Burch, alleged that the victim’s boyfriend, Doug Detrie, had forced him to commit the murder at gunpoint. However, a host of evidence, digital and otherwise, belied his assertion.

A good portion of the digital evidence used to pinpoint Burch’s movements on the night of the murder was obtained from his cell phone and Google Dashboard. By using that data, expert witnesses were able to show the jury that Burch was at the scene of the murder on the morning in question and then subsequently traveled to the location where they body was disposed of after the murder was committed.

Burch’s defense was that although he committed the murder and disposed of the body, he did so because Detrie held him at gunpoint and forced him to commit those acts. Fortunately for Detrie, he was wearing a Fitbit at the time of the murder and the Fitbit data contradicted Burch’s claims.

Not all of the Fitbit data was admissible, however. Specifically, the data that showed that Detrie was sleeping at the time of the murder was held to be inadmissible due to scientific disagreement regarding the reliability of that specific data. Other Fitibit data was deemed admissible, however, and that data provided an alibi that made all the difference in this case.

According to the Fitibit data, Detrie didn’t take nearly the number of steps required on the evening of the murder for his activity levels to comport with the movements alleged by Burch. The Fitibit data showed that Detrie took 20-30 steps at approximately 4 a.m. on the morning of the the murder. He asserted that he went to the bathroom at that time. Burch’s claims would have required Detrie to walk at least 2 or more miles on the evening of the murder.

After hearing the testimony and considering the evidence, the jury concluded that Burch was wearing his Fitbit on the evening of the murder and that the data obtained from it was accurate - and provided him with a much-needed alibi. The jury thus discounted Burch’s version of events and convicted him of the murder.

This is yet one more example where data from a wearable device provided crucial evidence that made all the difference in the outcome of the case. It’s also further proof that the devices we rely on and carry with us 24/7 collect a wealth of information about our movement and activities, all of which is readily accessible by law enforcement, sometimes with, and other times without, a warrant.

Certainly this should give you pause, and if nothing else, you might want to check the privacy settings of your smartphones, wearable devices, and the online accounts that sync with your mobile devices. Ascertain what type of data is collected and for what purpose, and then determine the value of the services provided using that data. If it’s not all that important to you, then switch off the ability to collect that data, to the extent that it’s possible.

No doubt there are plusses and minuses to living in the 21st century. The benefits include convenience, flexibility, and 24/7 access to information, but when balanced with the loss of privacy, are sometimes outweighed. The good news is that in some cases, the digital data can be your friend and provide you with an alibi, but that’s not always the case. The decision regarding how much privacy to sacrifice in order to take advantage of the positive aspects of living in the digital age is a personal one.The choice is yours, and it’s not always an easy one to make.

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 niki.black@mycase.com. 


Fitbit Data Used As Evidence In A New Murder Case

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

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Fitbit Data Used As Evidence In A New Murder Case

Wearable devices are becoming incredibly common. Take a look around - you’ll notice Fitbits, Apple Watches, and other wearable devices on the wrists of many people whom you encounter on a daily basis, including your legal colleagues and co-workers. They’re being used to track people’s health and fitness information, to ensure people are notified of important messages and events, and to assist with navigation, among other things.

Because they track so many aspects of our lives, the data collected and stored on the devices and shared with our phones can sometimes prove invaluable in court. I find their evidentiary potential to be incredibly interesting, so I started following and writing about cases where data from wearable devices has been used as evidence in litigation. For example, in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations.

Then in 2017, I covered a case where Fitbit data and other digital evidence was used to support a Connecticut murder prosecution. The digital evidence included cellphone records for the defendant and his wife, 2) computer records from the defendant’s laptop, 3) Facebook records for the defendant, his wife, and his girlfriend, 4) text messages, and 5) Fitbit records for the victim, the defendant’s wife.

Now, there’s a new case where Fitbit data is being used in a murder prosecution, this time in California. In this case, the accused is the step-father of the victim. The victim was discovered in her home on Thursday, September 13th by a coworker after she failed to show up for her job. She was deceased, slumped over a desk, and was wearing a Fitbit while holding a butcher knife. She had sustained a deep cut to her neck. What initially appeared to be a suicide was later determined to be a homicide after the medical examiner determined that she’d suffered from many deep wounds to her head and face.

When questioned by police, her step-father informed them that he had stopped by her home on Saturday, September 8th to drop off pizza. He also stated that later in the day he saw her again when she drove by his home with someone in the passenger seat of her car. He denied harming her.

However, evidence obtained by the investigating officers conflicted with his account. First, there was surveillance video showing that his car had been at her home for 21 minutes on Saturday, September 8th, from 3:12 - 3:33 pm. The video did not show her driving from her home in her car subsequent to that point in time, despite the defendant’s claims to the contrary.

There was also digital data obtained from the victim’s Fitbit. It showed that her heart rate spiked at 3:20 p.m. on September 8th. It then slowed down quickly and her Fitbit stopped registering a heartbeat at 3:28 p.m. In other words, her Fitbit showed that her heart had stopped beating during the timeframe that the defendant’s car was at her home.

Based on the surveillance video and Fitbit evidence, and his conflicting account, he was arrested and charged with her murder. The case is still pending, so his ultimate fate remains unknown. But it’s a great example of the valuable evidence that can be obtained from wearables. While certainly not conclusive, when considered in conjunction with other evidence discovered throughout an investigation, this type of data can sometimes make - or break - a case. Tune in next week for an example of a case where, instead of making the prosecution’s case, wearable data instead provided the accused with a viable alibi.

 

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 niki.black@mycase.com.