Sui Generis--a New York law blog

Fitbit Data Used As Evidence In A New Murder Case

Here 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 [email protected]. 

Juror misconduct and technology: a perfect storm

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

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Juror misconduct and technology: a perfect storm

As I mentioned in recent columns, I’m in the process of drafting my half of the annual update to “Criminal Law in New York,” a substantive criminal law treatise that I co-author with Brighton Town Court Judge Karen Morris. Every year, during the course of my research, I often stumble upon cases that offer an interesting perspective on the intersection of law and technology. This year was no different, and one particularly timely issue that I encountered involved juror misconduct occurring due to the improper use of technology by jurors.

Oftentimes these types of cases are discussed in the context of jurors using social media platforms to discuss trial proceedings despite being instructed not to do so, but the two cases that caught my eye while researching cases this summer involved jurors improperly using other types of technology in ways that were alleged to have had an impact on criminal trials.

In this column I’ll discuss the first case, People v. Neulander, 162 A.D.3d 1763 (4th Dep’t 2018), where the defendant was convicted of murder in the second degree. One issue on appeal was whether a number of text messages sent by a juror during the trial to friends and family constituted juror misconduct that created a significant risk that a substantial right of defendant was prejudiced.

Specifically, as established during the hearing on the defendant’s motion to set aside the verdict, the juror in question sent the following text messages to her father and her friends during the trial:

(A) text message from her father that stated: “Make sure he's guilty!” During the trial, juror number 12 received a text message from a friend asking if she had seen the “scary person” yet. Juror number 12 responded: “I've seen him since day 1.” Juror number 12 admitted at the subsequent hearing into her misconduct that she knew that the moniker “scary person” was a reference to defendant. Another friend sent juror number 12 a text message during the trial that stated: “I'm so anxious to hear someone testify against Jenna [defendant's daughter].” Juror number 12 responded: “No one will testify against her! The prosecution has already given all of his witnesses, we are on the defense side now! The prosecutor can cross examine her once she is done testifying for the defense.” Later that night, the same friend replied via text message: “My mind is blown that the daughter [Jenna] isn't a suspect.”

This conduct was reported to the court by an alternate juror after the guilty verdict had been rendered. In the juror’s affidavit in opposition to the motion to set aside the verdict, the juror stated that she had followed all of the court’s instructions. Nevertheless, a subsequent forensic examination of her cell phone showed that she had deleted many messages and erased her web browsing history, and she was unable to provide any explanations for doing so.

Based on the evidence adduced at the hearing, the court granted the defendant’s motion for a new trial, concluding that “due to juror number 12's flagrant failure to follow the court's instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct…thus…(the) defendant established by a preponderance of the evidence that juror number 12 engaged in substantial misconduct that ‘created a significant risk that a substantial right of ... defendant was prejudiced.”

This case is a great example of the reality that even tools as familiar and simple as texting can have a significant impact on trials. So don’t make the mistake of discounting or overlooking the potential effect of “old school” technology on your client’s case.

In next week’s column, I’ll discuss a juror misconduct case whereby jurors conducted legal research on their home computers and also used video editing software to enhance images from a video in evidence. So make sure to tune in next week!

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]. 

Does accessing historical cell site information require a warrant?

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

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Does accessing historical cell site information require a warrant?

Every summer I write my portion of the annual update for “Criminal Law in New York,” a book on substantive New York criminal law that I co-author with Brighton Town Court Judge, Karen Morris. During my research of the criminal cases handed down over the past year, I often come across cases that provide interesting insights on the intersection of criminal law and technology, and then write about them in this column.

This year one of the cases I discovered was People v. Jiles, 158 A.D.3d 75 (4th Dept. 2017), leave to appeal denied, 2018 WL 3811362 (2018). In this case, the defendant was convicted of murder in the second degree, robbery in the first and third degrees, and criminal possession of a weapon in the second degree. The defendant and unidentified accomplices were accused of holding four men at gunpoint in an apartment and taking money from them. During the robbery, another person entered the apartment, a struggle ensued, and the victim was shot and killed.

The prosecution had obtained the defendant’s cellphone records for the 4 days leading up to the robbery by means of a court order which was issued upon a showing of less than probable cause pursuant to the federal Stored Communications Act. The prosecution sought to introduce the records at trial to show the defendant’s location during the various times that he’d called the victim in the days preceding the robbery. The defendant moved to suppress the location information, but not the call records, on the grounds that the acquisition of that information constituted a search and thus required a warrant supported by probable cause.

The trial court denied the motion and the records were admitted at trial. One issue on appeal was whether it was necessary for law enforcement to obtain a warrant in order to access historical cell phone data.

At the outset, the Court outlined the breadth of information that can be obtained from cell phone data: “When citizens go about their lives with cell phones turned on, the phones can electronically register with the nearest cell tower every few seconds whether or not the phones are actively in use, and the business records of service providers can therefore contain information about the location of phones and their users at specific dates and times as the users travel the highways and byways of our state and nation.”

Next, the Court turned to the issue at hand, and in reaching its decision, it emphasized that the location data sought was historical, was kept as a matter of course by his cell phone service provider much like telephone billing records, and was information that the defendant had voluntarily disclosed to his services provider.

The Court explained that because the information was not obtained as a result of direct surveillance by law enforcement, but instead constituted historical data voluntarily provided to his service provider, a third party, that the data fell under the third party exception: “(W)e conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The Court also noted that “certain other states have afforded cell site location information greater protection under their state constitutions than it is afforded under the federal constitution” but declined to do so in New York, and instead likened location data to telephone billing records, which the New York Court of Appeals has permitted access to in the absence of a warrant. As such the Court concluded that “there is ‘no sufficient reason’ to afford the cell site location information at issue here greater protection under the state constitution than it is afforded under the federal constitution.”

I’m not sure I agree with the Court’s conclusion that this type of data is “voluntarily” disclosed to cell phone service providers, since at the present time, those of us who choose to use cell phones don’t have much of a choice in that regard: service providers collect that data as a matter of course and there’s no mechanism available to opt out. So our hands are essentially tied in that regard.

The Court did address this particular argument at the end of its opinion, noting that “(t)o the extent that ‘cell phone users may reasonably want their location information to remain private’ under these circumstances, their recourse is ‘in the market or the political process…”

Unfortunately, New York residents interested in protecting privacy rights and preventing law enforcement from arbitrarily accessing our minute-by-minute movements in the digital age, the Court’s suggested course of action provides no small comfort - and no immediate recourse - other than refraining from using cell phones altogether. For the vast majority of us, that’s not a feasible option, and thus we’re forced to agree to a full-scale waiver of our privacy rights in exchange for the ability to use a piece of technology that has become an integral part of our daily lives. Not exactly an equitable bargain, if you ask me.

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]. 

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].

iPhone health app data used in murder prosecution

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

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iPhone health app data used in murder prosecution

If, like me, you’re a fan of the Netflix series, Black Mirror, then you’re well aware of the many ways that our digital footprints can potentially be used against us. In this series, the writers envision futuristic timelines where technologies currently available are taken to their extreme, resulting in disturbing, dystopian story lines, some of which have since come to fruition in one way or another.

The message of this series is clear: technology can greatly benefit our lives, but also creates the potential for unbridled violations of our privacy by governmental and corporate entities. It’s a delicate balance of interests that can easily go awry in the absence of careful, thoughtful regulation. And unfortunately, technology is moving so quickly that legislators simply can’t keep up.

One area where we’re seeing this delicate balance play out is in the courtroom. Data from mobile and wearable devices is increasingly being used in both civil and criminal cases.

For example, in mid-2015 I wrote about an emerging trend where data from wearable and mobile devices was being used in the courtroom (online: http://nydailyrecord.com/2015/08/14/legal-loop-wearable-tech-data-as-evidence-in-the-courtroom/). In that column I discussed two cases where Fitbit data was used: 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 early 2017, I wrote about another case where Fitbit data and other digital evidence was used to support the prosecution of a criminal matter (online: http://nydailyrecord.com/2017/04/28/legal-loop-fitbit-data-other-digital-evidence-used-by-prosecution-in-murder-case/.) In that case, a wealth of digital data was used by the prosecution to refute the defendant’s version of the events leading to his wife’s death, including cell phone records, computer data, text messages, information from Facebook, and his wife’s Fitbit data.

More recently, data from the iPhone Health App was used in court in Germany as part of a murder prosecution. In this case, the defendant was accused of murdering a medical student. The investigators were able to access his phone and obtain data from its Health App. Data collected by that app includes the number of steps taken, nutrition and sleep patterns, and a range of body measurements including heart rate. The app also provides geolocation data regarding the movement of the phone.

The data collected from the app corresponded to the prosecution’s theory of the case and its timeline of events leading up to and following the murder. The geolocation data provided evidence of the defendant’s movements throughout the evening in question, while the heart rate data indicated two different periods of “strenuous activity” which the app suggested involved the climbing of stairs.

A police investigator who was of similar size to the defendant recreated the events as it was believed they occurred and then compared the investigator’s Health App data to the defendant’s. The prosecution alleged that the similarities in the data indicated that the defendant was likely dragging the victim’s body down the stairs when his app indicated he was engaged in strenuous activity involving the climbing of stairs, thus supporting their theory of the case.

Once again digital data gleaned from a mobile device was used in court in an attempt to convict an accused rapist and murderer. The use of digital data for this purpose is something most people would likely agree with. However, there is a very real potential for abuse of the data our devices are collecting about us, as the Black Mirror series points out. Where we, as a society, choose to draw that line remains to be seen.

In the meantime, astute lawyers will educate themselves about the types of data available to them and will likewise be cognizant of the ways that data can be used in the courtroom to forward their client’s interests. In 2018, anything less would arguably be malpractice.

Nicole Black is a Rochester, New York attorney, author, 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].

When worlds collide – A tweet constitutes an assault

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

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When Worlds Collide: A Tweet Constitutes An Assault

Sometimes a tweet is just a tweet in the online world, and other times it can amount to an assault in the “real” world. At least, that’s the difficult lesson learned by John Rayne Rivello, a Maryland man who was indicted in Texas and charged with the hate crime, Aggravated Assault with a Deadly Weapon, in violation of PC 22.02(a)(2).

In December 2016, Rivello allegedly sent a tweet to Kurt Eichenwald, a senior reporter for Newsweek, following Eichenwald’s appearance on Fox News. The tweet included an image with the accompanying text, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”

Eichenwald suffered from epilepsy, something he’d shared publicly in the past. The image that accompanied the tweet was an animated GIF of a strobe light intended to trigger seizures in those who were susceptible to them. The tweet had the intended effect and caused Eichenwald to suffer from an 8-minute seizure, after which he was unable to speak and was then reportedly incapacitated for a number of days.

As a result of the incident, an investigation was conducted resulting in Rivello’s indictment and arrest last week. This case is interesting for two reasons. First, the allegations in this case represent a unique intersection of technology with criminal conduct. Second, the investigation that was conducted to support the charges involved law enforcement access to Rivello’s Twitter and iCloud accounts.

Turning to the allegations, they are unusual in that the “deadly weapon” is considered to be Rivello’s hands, electronic devices, and the content of the tweet he sent. Each item alone is arguably harmless, but according to the indictment, when combined within the context of this incident, became a deadly weapon with which Rivello knowingly caused injury.

Specifically, the Grand Jury’s indictment alleged that on December 16, 2016, he “intentionally, knowingly, and recklessly caused bodily injury to Kurt Eichenwald, a disabled person…by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures, and said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF), and an Electronic Device and Hands, during the commission of the assault…And further that the Defendant did intentionally select said Kurt Eichnewald primarily because of the said Defendant’s prejudice or bias against a group identified by race, ancestry, or religion, namely: persons of Jewish faith or descent.”

The investigation conducted by law enforcement is also noteworthy since it represents an increasing trend in today’s technology-infused world: digital footprints are becoming a regular source of evidence in criminal cases. In this case, search warrants were issued allowing the police to review Rivello’s Twitter and iCloud accounts. Evidence obtained included direct messages sent by Rivello to other Twitter users including that he knew that Eichenwald had epilepsy, intended for the tweet with the strobe GIF to trigger an epileptic seizure, and that the hoped the seizure would kill Eichenwald.

After reviewing files stored in his iCloud account, investigators discovered research regarding the victim, epilepsy seizure triggers, and the progress of the investigation into the attack on Eichenwald. The evidence obtained from Rivello’s online accounts established that his sent the Tweet and helped to show the necessary intent and his motive to harm Eichenwald.

This indictment is clear evidence that the times they are a’changin’, with the online world and the offline world rapidly merging. The influence of social media and technology on our day-to-day lives is inescapable and cannot be ignored. What was once viewed as a fad is now part of the very fabric of our world and lawyers who ignore the effects of technology do so at their own peril.

It’s undeniable: the online world impacts your cases, your clients, and your practice. Embrace it or be left behind.

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].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

The Stalking Statute And Email: Muddling Through 21st Century Issues

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

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Regular readers of my column know that every summer I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris. During the course of my research for the update, I read thousands of criminal law cases handed down over the past year with an eye toward locating those holdings that affect substantive issues relating to the Penal Code. And, given my passion for the intersection of law and technology, I also take an interest in those cases where technology impacts the Penal Code. People v. Marion, 49 Misc.3d 562 (Crim. Ct. City of New York, 2015) is just such a case.

One of the issues in People v. Marion is whether the complainant's work e-mail address constituted a “place of employment or business” for purposes of the stalking statute. The relevant portion of the accusatory instrument alleged the following:

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from the defendant. Specifically, one of the messages stated, “I wish you would let me find you tonight” and “I'll always be by your side.” From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from the defendant at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to the defendant.

In reaching its decision, the court noted that the only allegation that amounted to a possible violation of\of Penal Law § 120.45(3), the stalking statute, was the assertion that the defendant sent repeated emails to the complainant at her work email address. Next, the court explained that the People were required to include allegations in the accusatory instrument establishing that the defendant “intentionally, and for no legitimate purpose, engage(d) in a course of conduct directed at a specific person, and (knew) or reasonably should know(n) that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.”

The court concluded that the allegations against the defendant were insufficient since the “‘fair import’ of the phrase ‘place of employment or business’ is that it refers to an actual, physical location.” The court reasoned that subsection 2 of Penal Law s.120.45 sufficiently addressed the conduct alleged since included the actions of “repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm.”

I believe that the court missed the mark with this conclusion, both in terms of: 1) its assertion that subsection 2 covered the alleged conduct and 2) its conclusion that subsection 3 required that the conduct occur at the physical workplace.

First, subsection 2 requires a higher standard of harm —that material harm be shown — whereas subsection 3 only requires that the conduct is “likely to result in harm.” Undoubtedly the reason that a lower standard of harm was required for subsection 3 is due to the fact that individuals have more at stake when they are stalked at work; not only are they emotionally affected, they may be financially affected as well. Thus, a lower level of harm is required to be shown.

So the court’s assertion that subsection 2 necessarily covers all situations where emails are sent to a person’s business email address is incorrect. A person may receive emails at a business address that are “likely to result in harm” due to the possibility that the employer may discover them but do not actually result in harm as required by subsection 2.

Next, the statute specifically forbids repeated contact that includes “initiating communication…at such person’s place of employment or business.” Sending an email to an individual’s work address undoubtedly constitutes the act of communicating with someone at their place of business. That’s the entire point of a “work” email address versus a personal one. A work email address is where people receive the vast majority of communications relating to their work, and oftentimes, employers have full access to all emails received in that account.

For those reason, I submit that the court interpreted this subsection far too literally, through a narrow, 20th century lens. I am confident that this myopic view of Penal Law 125.45(3) will not withstand the test of time.

 

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].

New York judge rules Instagram contact violates order of protection

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

*****

Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.

At issue in People v. Lemons is whether actions taken by the defendant using the social media platform Instagram constituted a communication that was in violation of a pending order of protection. In the accusatory instrument the complainant alleged that there was an order of protection in place that forbade the defendant from contacting her by electronic or other means and that the defendant violated it by sending her a “follow” request on Instagram.

The defendant brought a motion to dismiss the accusatory instrument for facial insufficiency, contending that the follow request he allegedly initiated via Instagram, which caused a notification to be sent to the complainant, via Instagram did not violate the order of protection because he did not directly communicate with her.

The Court rejected his argument, concluding that the request that he allegedly initiated through Instagram was, in fact, a communication: “(T)he Court has little trouble concluding that when the defendant sent the complainant a message through the Instagram app this was “communication or any other contact by ... other electronic or any other means,” and was forbidden by terms of the order of protection. The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it.”

According to the Court, he effectively communicated with the complainant even thought it was not a direct communication. The Court explained that he initiated the connection request knowing it would set a series of events in motion which would result in a notification from Instagram to the complainant regarding his interest in connecting with her on the platform: “(E)ven though the specific allegation in the information is that the communication did not flow directly from the defendant to the complainant, since defendant asked Instagram, and not the complainant herself, for permission to view the complainant's page, and Instagram forwarded that request to her. There is no reason to conclude that this forwarding was anything other than an automatic and automated feature built directly into the app, and thus there is also no reason to conclude that the communication was made only to Instagram, and not to the complainant.”

As is often the case in well-reasoned decisions issued by judges regarding online interactions, Judge Statsinger compared the defendant’s actions in this case to similar “offline” behavior that was analogous to the actions alleged to have been taken by the defendant: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”

This was an interesting issue of first impression in New York and Judge Statsinger did a great job analyzing the issues and provided a clear, concise, and logical decision. One more social media platform has now been addressed in this context. Rest assured—many more will follow.

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].

NY judge weighs in on whether ‘tagging’ violates order of protection

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

*****

NY judge weighs in on whether ‘tagging’ violates order of protection

Social media permeates every aspect of our lives so it’s not surprising that online interactions can sometimes trigger criminal prosecutions. That’s why, in the past I’ve discussed how social media and other online communications can constitute aggravated harassment or violate pending orders of protection.

That’s exactly what occurred in People v. Gonzalez, Case No. 15-6081M. This decision was handed down by Westchester County Supreme Court Justice Susan Capeci in January of this year and addressed the issue of whether certain Facebook activities violated an order of protection.

At issue was whether the defendant committed criminal contempt in the second degree when she “tagged” the protected party in posts made to Facebook. In this case, an order of protection was in place in favor of the complainant and required that the defendant ”refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means ...."

It was alleged that the order of protection was violated when the complainant received notifications from Facebook that the defendant:

did "tag" [the protected party] in two Facebook posts the "first stating
"Stupid." The second post the defendant tagged [the protected party] in stated: "You
and your family are sad:(sonia and especially maribel!! You guys have to come stronger
than that!! I'm way over you guys but I guess not in ya agenda.

The defendant did not deny the conduct but instead contended that the conduct alleged—that she “tagged” the complainant in two Facebook posts—was not specifically prohibited by the order of protection.

The Court disagreed, noting that the order of protection clearly specified the type of conduct that was prohibited—communication via electronic means—and that the defendant’s conduct was targeted toward the complainant:

The Court finds the above communication alleged to have been made by the
defendant via Facebook to be sufficient to establish, if true, every element of the
offense charged and the defendant's commission thereof. The Order of Protection
prohibited the defendant from contacting the protected party by electronic or any other
means. The allegations that she contacted the victim by tagging her in a Facebook'
posting which the victim was notified of, is thus sufficient for pleading purposes to
establish a violation of the Order of Protection.

While I agree with the Court’s conclusions, I was somewhat surprised that there was no further discussion as to what constitutes a “communication” and whether tagging someone in a Facebook post falls under that definition. Because, as I’ve oft repeated, the online is an extension of the offline, it would have been helpful to examine the nature of the defendant’s conduct in order to ascertain how and why it constituted a “communication.” Similarly it would have been illustrative to provide examples of offline conduct that were somewhat comparable to the defendant’s alleged behavior.
Assuming that the defendant was aware that when she “tagged” the complainant in a post, the complainant would likely receive a notification (depending on her Facebook settings), then clearly the defendant understood that she was in essence sending a message to the complainant. This was especially so given that she not only “tagged” her but also included messages in the post directed specifically to the complainant. However, even if she had not included messages of that nature, it’s conceivable that simply “tagging” someone in a post might constitute prohibited communication.

Unfortunately, the court did not address this issue and instead simply concluded that the alleged conduct violated the order of protection. While the decision was arguably correct, it was devoid of useful guidance for other courts who will undoubtedly wrangle with similar issues in the future.

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].