Inder Comar

(This post is cross-posted with COMAR LAW)

The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device.  United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).

The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.

In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.

Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.

All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.

Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.”  Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.

Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.

Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.

Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.

Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  The 4 weeks of monitoring was long enough to require a warrant.

In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.

This is an excellent question.

Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.

In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.

At some point, law will need to change to reflect this new reality.  The real issues will be:  (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.

Ed. note: this post is cross-posted with COMAR LAW.

On May 12, 2011, a federal judge in San Jose largely dismissed a lawsuit filed by two California men who alleged that Facebook violated state and federal privacy laws by handing over personal information to advertisers without the knowledge or consent of users.

The men alleged that when Facebook users click on advertisements, Facebook sends a “Referrer Header” to the advertiser which reveals the specific webpage someone was looking at prior to clicking on the advertisement.

Such information, the men said, contained personal information that people do not expect will be turned over to advertisers.

“Users expect that certain aspects of their communications concerning advertisers–namely, their identities and the webpage they were viewing at the time they clicked on an advertisement–will be configured by Defendant to be private,” the men claimed.

But these plaintiffs were not able to convince Judge James Ware of the United States District Court for the Northern District of California that such allegations violated federal or state laws.

Judge Ware first analyzed the allegations under the federal Wiretap and Stored Communications Acts and held that the plaintiffs failed to state a claim under either law.

Judge Ware wrote that federal law assumes that when a user of a service like Facebook sends information to that service, the user consents to sharing any disclosed information.

California state law was of no help either.  California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which protects someone’s “money or property” from unfair competition, did not apply because “personal information” does not constitute property.

Similarly, Judge Ware held that California’s Consumer Legal Remedies Act (the “CLRA”), Cal. Civil Code  § 1750, cannot apply to Facebook as the CLRA only applies in situations where a person “purchases” goods or services.  Judge Ware noted that Facebook’s services are free.

Judge Ware dismissed these causes of actions (among others) without prejudice, which means that the plaintiffs are free to re-file the complaint if they can fix their allegations.

But the plaintiffs will need more than simply “Facebook shares my personal data without my permission.”

The thrust of Judge Ware’s decision is that by signing up to use Facebook, and by agreeing to turn over personal information, a user can’t later complain where that personal information goes.

The scary conclusion is that under federal and California law, it may be ok for Facebook to hand over personal information that a user is not aware is being shared.

Ed. note:  this post is cross-posted with COMAR LAW.

These days, people carry their entire lives on their smart-phones. E-mails, text messages, documents, apps, Google searches, Google Maps history, web browsing history — the sheer volume of information contained in personal phones dwarfs what people may have placed even on their desktop computers just a few years ago.

And all of that information may be available to police, should you ever find yourself arrested in California. Just a few days after the beginning of 2011, the California Supreme Court held in People v. Diaz that the police, after taking a defendant into custody, are entitled to search a person’s cell phone — and the contents of that cell phone — as part of their “search incident to arrest” powers.

The facts of the case are straightforward. The defendant Gregory Diaz was arrested for selling ecstasy, but denied any involvement in selling the drug. When he was booked at the station, Diaz was forced to turn over his cell phone. After his initial interview, a sheriff looked through Diaz’s text message folder and uncovered a message that appeared to indicate an involvement in drug trafficking. The sheriff confronted Diaz with the text message, and Diaz subsequently admitted his participation in the crime.

The question before the California Supreme Court was simple: while any other object found on a person can be seized and examined after an arrest, can the police really examine the contents of a modern cellphone?

The California Supreme Court’s unequivocal answer was yes. The Court reviewed federal precedent and held that “such a search is valid as being incident to a lawful custodial arrest.” (Opinion at 1.) US Supreme Court decisions hold that the “loss of privacy upon arrest extends beyond the arrestee’s body to include personal property immediately associated with the person of the arrestee at the time of arrest” and “to open and examine” what they find. (Opinion at 15 (citation omitted).)

Because federal law did not seem to distinguish between electronic personal effects and other items (such as cigarette packages or wallets), privacy protections over the cell phone are extinguished the moment a person is taken into custody.

In dissent, Justice Werdegar strongly disagreed with his colleagues. “The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. . . . An individual lawfully arrested and taken into police custody necessarily loses much of his or her bodily privacy, but does not necessarily suffer a reduction in the informational privacy that protects the arrestee’s records.” (Dissent at 2, 11 (emphasis in original).)

The summary of all of this is that in California, if you are arrested, the police appear to have authority to search the contents of your cell phone and admit any evidence they find in court.

Interestingly enough, this decision is at odds with a May 2007 decision written by Judge Susan Illston, a federal judge sitting in the Northern District of California. In United States v. Park, San Francisco police officers searched the address books and telephone logs found in the cell phones of individuals arrested on charges of cultivation of marijuana. The officers submitted vague declarations as to when they searched the contents of the cell phone, and what they were looking for.

After reviewing federal law, Judge Illston held that any evidence uncovered from the search could not be admitted into evidence. “The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. . . . [D]ue to the quantity and quality of information that can be stored on a cellular phone, a cellular phone should not be characterized as an element of individual’s clothing or person, but rather as a possession within an arrestee’s immediate control [that has] fourth amendment protection at the station house.” United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, *24, *27 (N.D. Cal. May 23, 2007).

Different court decisions on this issue indicate eventual Supreme Court review. And, truth be told, where the US Supreme Court comes down on cell phone searches incident to arrest may entirely depend on whether or not the justices are using an iPhone or a Droid versus something that just calls and texts.

Ed. note:  this post is cross-posted with COMAR LAW.

Is America on the cusp of the next evolution in legal thinking regarding technology and the Constitution?

Decades ago, telecommunications inventions forced courts to grapple with the effects of technology on Constitutional doctrine, resulting in much of the precedent that law students currently learn in their criminal procedure and constitutional law classes.

Today, circuit courts across the country are once again wrestling with how the Constitution and Bill of Rights apply to newer technologies like cell phones and the internet.

Three cases from 2010 exemplify a possible doctrinal evolution amongst the federal courts, especially with regard to the Fourth Amendment’s warrant requirement. And perhaps the most seismic of these three is United States v. Warshak, the first appellate case to tackle the Fourth Amendment’s warrant requirement as it applies to email.

In Warshak, the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee) entertained an appeal from a distributor of penile enhancement herbal supplements who was sentenced to 25 years in federal prison for numerous acts of fraud. Warshak argued that his conviction was improper on account of the government acquiring his emails from his internet service provider (“ISP”) without a warrant. The government had relied on a section of the Stored Communication Act which authorizes the seizure of emails from an ISP without a warrant when those emails are stored on an ISP server for more than 180 days.

The Sixth Circuit first explained hornbook law on searches and seizure. Under the Fourth Amendment, the government engages in a “search” when it infringes upon an “expectation of privacy that society is prepared to consider reasonable.” Warshak plainly expected his emails to be private; the deeper question was whether society was prepared to recognize that expectation as reasonable. “This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication,” the Court noted. (Warshak decision at 17).

And the answer? After reviewing key Fourth Amendment decisions related to telephone communications and letters, the Sixth Circuit held that email “requires strong protection under the Fourth Amendment” on account of its modern indispensability — “so pervasive that some persons may consider it to be an essential means or necessary instrument for self-expression, even self-identification.” (Warshak decision at 20.)

If an email is like a phone call or a letter, then it is “manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.” Id. Because the government did not get a warrant before it obtained Warshak’s emails, it “violated the Fourth Amendment.” Id.

The Court didn’t stop there. Noting that the government had relied on good faith on portions of the Stored Communications Act which permitted seizure of emails without a warrant, the Court held that any such sections were simply unconstitutional. Id.

How about getting cell phone data stored by cell phone companies? The Third Circuit (which covers Delaware, New Jersey and Pennsylvania) addressed this issue on appeal in September 2010 when the government requested a private citizen’s cell phone location information under a “reasonable grounds” basis — lower than the “probable cause” standard required for a warrant. Like Warshak, the statute at issue was the Stored Communications Act.

The lower court unanimously held that the government needed a warrant in order to obtain cell phone location information, since warrants are required to install tracking devices on individuals. Tracking information from cell phones, the lower court reasoned, was a “tracking device” for purposes of federal law. (Third Circuit decision at 9-10.)

On review, the Third Circuit rejected this interpretation. It held that Constitutional privacy interests are implicated only in the “interior of the home.” There was nothing in the record that cell phone location information extended to that realm, and thus a lower standard was appropriate. (Third Circuit decision at 17.)

However, the Court also wrote that the government did not have full reign to request cell phone location information without judicial oversight. Reading the language of the statute, the Third Circuit held that in some instances, a court may require a warrant if privacy interests are implicated. And the Court rejected the government’s argument that it never needed a warrant, labeling this position “extreme” and reminding the government that it was not free from the warrant requirement merely because it was investigating criminal activity. (Third Circuit decision at 26-27.)

Finally, in United States v. Boroway, the Ninth Circuit (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) examined the scope of the Fourth Amendment as it applied to file-sharing services — in this case, the once ubiquitous LimeWire peer-to-peer program. In Boroway, an FBI agent logged onto Limewire and did a search for the term “Lolitaguy.” The search produced Boroway’s files. After downloading the files and confirming the presence of child pornography, the agent requested a search warrant and confiscated Boroway’s computers and data.

On appeal, Boroway argued that the evidence obtained through the searches should be thrown out because he had attempted to shield the contents of the LimeWire directory through a special software modification, thus evincing his desire to keep the files private. The Court rejected this argument, largely relying on a 2008 decision that held that people who put files on a file-sharing program do not have a reasonable expectation of privacy related to those files. (Boroway decision at 4.) Boroway was “clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder . . . Because Boroway lacked a reasonable expectation of privacy in the shared files, Agent Mitchell’s use of a keyword search to locate these files did not violate the Fourth Amendment.”

2010 proved to be an important year for the Fourth Amendment and 2011 will likely bring more of the same — as well as possible Supreme Court review.