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.

*****

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.

*****

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. 


Email tracking and lawyers: not a great mix

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

*****

For most lawyers, email is their primary method of correspondence with clients, courts, opposing counsel and others. Over the years, we’ve become increasingly reliant on email because it’s a fairly simple and cost-effective way to communicate.

Of course, as technology has advanced, so too have the tools that can be used to make email more useful. Many of these tools have the end effect of streamlining email correspondence. Email add-ons and built-in features allow users to schedule emails, automate the process of sorting and filing emails, and snooze emails for viewing at a later date, among other things. In most cases, these new features increase the efficiency of email.

But sometimes email add-ons can have a more nefarious purpose. Case in point: email tracking tools. Typically this type of software allows the sender to track a wide range of things, including when a sent email and its attachments are opened, how long the recipient views the email and attachments, how many times they was opened, whether they were forwarded, and the geographical location of the recipient.

Email tracking clearly raises some ethical red flags in the context of lawyer communications, so it’s no surprise that its use by lawyers has been addressed by a number of ethics committees.

First there was New York Opinion 749 (2001), wherein the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” Then there was the Alaska Bar Association Ethics Committee which concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

Pennsylvania has also issued an opinion addressing email tracking. In Formal Opinion 2017-300 the committee concluded that Pennsylvania lawyers should avoid using email tracking tools with opposing counsel. Most recently, in Opinion 18-01, the Illinois State Bar Association likewise determined that it is unethical for lawyers to use email tracking software with opposing counsel.


Last week, the issue of whether lawyers should use email tracking software once again reared its ugly head, but this time in the context of a war crime court martial. As covered in a number of major news outlets, defense counsel for
Edward Gallagher - a man accused of stabbing an Islamic State group militant to death - alleged that the military prosecutor in that case sent an email that included email tracking software to multiple lawyers, paralegals, and a reporter with the Navy Times.

Two weeks after the allegations were made, the judge presiding over the case issued a ruling that resulted in the removal the prosecutor from the case. The reasons for the removal were based on constitutional due process and Sixth Amendment grounds and because the threat of investigation into alleged prosecutorial misconduct could be viewed as a conflict of interest.

If you weren’t already convinced about the perils of lawyers using email tracking, this case offers even more evidence that lawyers and email tracking software are a bad combination. Likewise, it offers additional support for the recommendation I made when I wrote about email tracking software last year - and that I still stand by today:

“For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.”

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 judges, political commentary, and social media collide

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

*****

When Judges, Political Commentary, and Social Media Collide

I’ve written many times about the use of social media by judges. Generally speaking, I’m in favor of judges using social media and oppose arbitrary restrictions on their social media use. For example, I believe that judges should be permitted to be “friends” on social media with attorneys who appear before them and that doing so does not somehow affect their obligation to remain impartial.

That being said, due to the unique nature of their position, judges are understandably restricted from certain types of online behavior, just as they are when it comes to offline behavior. After all, as I’ve always said, the online is simply an extension of the offline.

So when I read that a Utah judge had been suspended for 6 months as a result of his online interactions, I was concerned. Then I read the opinion of the Supreme Court of Utah in In re: Inquiry of a Judge: the Honorable Judge Michael Kwan. Given the facts of this case, I agree with the Court’s decision.

In this case, it was alleged, among other things, that Judge Kwan had made a number of statements online regarding Donald Trump, both before and after the election. Notably, Judge Kwan had already been reprimanded in the past for making improper statements regarding candidates running for political office, with two separate informal opinions being issued by the Utah State Bar Ethics Advisory Committee regarding those incidents. His statements regarding Donald Trump were made after those opinions were handed down.

In the case at hand, Judge Kwan asserted that many of his postings were protected by the First Amendment as constitutionally protected speech. The Court declined to address that argument on procedural grounds, ruling that the judge failed to raise a constitutional objection at the time that the violation occurred, and thus cannot raise it for the first time during the disciplinary proceeding. The Court explained its rationale as follows:

“(W)e have required judges who fail to abide by laws or rules to put the public on notice that their violation is based on a principled contention that the law or rule is, itself, unlawful. Without such notice, a judge may appear to violate laws or rules at will, in disregard of the legal system they are charged with administering. And when judges appear to consider themselves above the law, public confidence in the fair.”

Even though the Court declined to reach his constitutional defense, it nevertheless limited its inquiry to a single posting that the judge himself acknowledged was improper and was not constitutionally protected: a statement that he made that indicated his opposition to a presidential candidate. Specifically, he posted the following in reference to Donald Trump: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?”

The Court concluded that “the single online posting regarding then–presidential candidate Donald Trump, together with the other conduct Judge Kwan admits violated the rules, viewed in light of Judge Kwan’s history of judicial discipline, amply justify the sanction the JCC ordered and we implement.”

In reaching its decision, the Court focused on the role that judges play in our society and emphasized the importance of the appearance of judicial impartiality in fulfilling that role: “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.”

The Court also explained that upon accepting the responsibility of being part of the judiciary, judges do so with the understanding that they are henceforth obligated to act in a manner that upholds public confidence in the judiciary: “Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.”

I’m in full agreement with the Court’s decision. Certainly judges don’t leave their right to free speech at the door when they enter the judiciary. But their speech is necessarily limited somewhat due to the unique nature of their duties. Judges often have to walk a fine line in that regard, and sometimes they may unintentionally cross it.

But in the case at hand, that line was crossed far too many times in the past, and as a result the judge should have erred on the side of caution when interacting both online and off. He failed to do so and must now face the consequences.

Certainly we’re in the midst of a uniquely turbulent political landscape, and the immediacy and reach of social media can be an enticing way to voice ones views. But even so, it’s important to think before posting. And given their position, judges in particular must tread carefully when addressing political issues, lest they impermissibly cross that line.

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. 


Email tracking and lawyers: not a great mix

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

*****

Email tracking and lawyers: not a great mix

For most lawyers, email is their primary method of correspondence with clients, courts, opposing counsel and others. Over the years, we’ve become increasingly reliant on email because it’s a fairly simple and cost-effective way to communicate.

Of course, as technology has advanced, so too have the tools that can be used to make email more useful. Many of these tools have the end effect of streamlining email correspondence. Email add-ons and built-in features allow users to schedule emails, automate the process of sorting and filing emails, and snooze emails for viewing at a later date, among other things. In most cases, these new features increase the efficiency of email.

But sometimes email add-ons can have a more nefarious purpose. Case in point: email tracking tools. Typically this type of software allows the sender to track a wide range of things, including when a sent email and its attachments are opened, how long the recipient views the email and attachments, how many times they was opened, whether they were forwarded, and the geographical location of the recipient.

Email tracking clearly raises some ethical red flags in the context of lawyer communications, so it’s no surprise that its use by lawyers has been addressed by a number of ethics committees.

First there was New York Opinion 749 (2001), wherein the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” Then there was the Alaska Bar Association Ethics Committee which concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

Pennsylvania has also issued an opinion addressing email tracking. In Formal Opinion 2017-300 the committee concluded that Pennsylvania lawyers should avoid using email tracking tools with opposing counsel. Most recently, in Opinion 18-01, the Illinois State Bar Association likewise determined that it is unethical for lawyers to use email tracking software with opposing counsel.

Last week, the issue of whether lawyers should use email tracking software once again reared its ugly head, but this time in the context of a war crime court martial. As covered in a number of major news outlets, defense counsel for Edward Gallagher - a man accused of stabbing an Islamic State group militant to death - alleged that the military prosecutor in that case sent an email that included email tracking software to multiple lawyers, paralegals, and a reporter with the Navy Times.

Two weeks after the allegations were made, the judge presiding over the case issued a ruling that resulted in the removal the prosecutor from the case. The reasons for the removal were based on constitutional due process and Sixth Amendment grounds and because the threat of investigation into alleged prosecutorial misconduct could be viewed as a conflict of interest.

If you weren’t already convinced about the perils of lawyers using email tracking, this case offers even more evidence that lawyers and email tracking software are a bad combination. Likewise, it offers additional support for the recommendation I made when I wrote about email tracking software last year - and that I still stand by today:

“For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.”

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. 


Ohio Court on service of process via Amazon messaging

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

*****

Ohio Court on service of process via Amazon messaging

In 2019, technology affects so many aspects of practicing law. Whether it’s running your law firm using cloud-based billing and practice management software, using legal software to obtain data analytics to assist in litigation, or mining social media for evidence, there’s no escaping the impact of 21st century technologies on the practice of law.

Of course, that’s not always a bad thing, and technology often reduces the tedium of law practice and reduces friction and difficulties often encountered by lawyers in their day-to-day practice. One example of this theory in action is the use of online communication tools for service of process.
Years ago, this was a unique concept that many courts approached with caution. But as online communication and interactions became increasingly common, courts slowly began to allow lawyers to use them to effect service of process.

Fast forward to 2019, and effecting service of process using social media platforms is no longer unheard of. Oftentimes, the platform of choice is Facebook. The first time I wrote about this was in October 2014. At that time, two different judges had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B).

Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)). Next, in 2016, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

I also covered this issue in June of 2017 when I wrote about Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via Facebook and concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

But other platforms have also been used to effect service of process such as WhatsApp, which I wrote about in November 2018. In that case, Alzaabi v. Jaston, a Queens County Supreme Court Justice allowed the plaintiff, who was alleging that the defendant defrauded him via an online sale, to serve process using WhatsApp.

Which brings us to the case at hand, Noco Co. v. Chang, 2019 WL 2135665. In this trademark infringement lawsuit filed in the Northern District of Ohio, the plaintiff alleged that defendant used an Amazon merchant account to sell infringing products. The name registered with the Amazon merchant account was associated with a trademark application under that same name, and listed an address in China.

After multiple failed attempts to obtain a waiver of service from the defendant pursuant to the Federal Rules of Civil Procedure, the plaintiff filed a motion requesting permission to serve the defendant via Amazon messaging in lieu of effecting service using the procedure authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Due to the unique nature of the Hague Convention, the court declined to grant the plaintiff’s request to serve the defendant through online channels. The Court explained its rationale as follows: “Given the fact-specific nature of matters concerning service abroad, the Court makes explicit the facts that dictate that service on Defendant Chang must be transmitted through China’s Ministry of Justice: (1) Defendant Chang appears to live in China, a Hague Convention signatory state that has objected to service by the Article 10 methods; (2) Chang’s physical address is not unknown; (3) the only way to effect service is by transmitting documents abroad (e.g., there is no U.S. subsidiary or U.S. counsel); and (4) Plaintiff has not already attempted to serve Defendant using this method authorized by the Hague Convention.”

Notably, the Court lamented that the requirements of the Hague Convention necessitated service of process using more traditional methods, in large part due to their lack of expediency: “Requiring Plaintiff to wait many months for service feels shockingly out-of-step with today’s fast-paced e-commerce…However, the Court’s hands are tied. Plaintiff NOCO must serve Defendant Chang through China’s Ministry of Justice.”

So in this case, 21st century methods were rejected. But I would suggest it’s a rather unique situation and that more often than not, especially where disputed transactions occurred online and other more traditional attempts at service of process have failed, courts will increasingly consider 21st century online options. So don’t rule them out.

It’s 2019 and the world is changing rapidly. You can’t practice law in a vacuum and technological change is a reality. Litigation is not immune from its effects, so if you’re a litigator make sure you’re technologically savvy and are taking steps to incorporate technology learning into your daily routine. At the end of the day, you’ll be a better lawyer, thus more able to provide the best possible representation for your clients. And after all, isn’t that what the practice of law is all about?

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. 


Round up: Paperless law firms, cloud computing for lawyers, and choosing legal software

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles since March:


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.

*****

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.