e-Discovery Insights

Four/Fifths of a Decision by the #SCOTUS

OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means...]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned...

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

• Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
• Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
• Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple...

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate - and an examination of conflicting rulings - that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password...just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed...

Fine's 'Old Ball & Chain' May Result in a New Ball & Chain

By now, most of you are aware that the wife of assistant-basketball-coach Bernie Fine of Syracuse was recorded in what is the now-infamous, "I knew everything!" debacle.

Didn't I just caution about the people closest to you?  Folks, the old world is over.  No matter the circumstances, you must always assume that you're being watched, recorded or tracked; even in the so-called privacy of your own home.  I've reached the point where I believe you must ask yourself, "Am I about to say/write something that could be construed as harmful?" before ever opening your mouth or sending a text or email.

It's impossible for me to get inside the head of a person to figure out what they were thinking - and if we delved into the moral aspects we'd never come to any resolution - but take this as another extreme example of what happens when private thoughts become public.

Think broadly.  This isn't just about one person.  The recording was made in 2002 and has apparently been in the possession of authorities for years.  It's Penn State all over again.

Heads will roll...and perhaps they should.

License to Pry

Back to the future.  All-of-a-sudden, the term "1984" has become quite popular in the news, on TV and on a certain blog & Twitter feed you may be reading at the moment.  It started with the U.S. v. Jones case regarding warrantless GPS tracking.

But 'Jones' is child's play compared to what the District of Columbia is doing on a daily basis.  At least in Jones, the issue revolves around the government tracking specific vehicles for specific purposes.  In DC, they track the license plates of all of the vehicles, all of the time.  Not only that, they retain the database, sometimes for years.

I don't know whether to be in awe or appalled!  As a techno-weenie, I can't help but be fascinated by technology that can accomplish this; but that doesn't mean I lose sight of the obvious risks to privacy.  Examples?

The Good:  A crime is committed, a witness jots down a license plate and the authorities are able to input said plate into the database and locate the perpetrator.

The Bad:  A husband calls police to report his wife missing.  They input her license plate into the database, locate her vehicle in front of an apartment building - and discover she's having an affair.

The Ugly:  Talk amongst yourselves...

As has been the case so many times before, this capability may be used for good, evil, or with good intent that becomes inherently evil.

Of course, the same could be said of chocolate cake.  In moderation, it's great; but eat too much and you can make yourself sick.  The question is, who's going to be responsible for making sure we don't overindulge?

...After the Horse has Escaped. #PDA and the #5thAmendment

 

I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key..."

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer - in proper working order - will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation - and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one...

Closing the Barn Door... #PDA, #GPS & the #4thAmendment

If you've been following my Tweets lately (I made it easier to do last week by adding a Twitter module to the sidebar), you know I've been spending a lot of time linking you to what I feel are some of the best analyses available on the developing area of how 4th Amendment searches & seizures pertain to new technology.

All eyes are on the Supreme Court again, as they prepare to hear arguments this coming Monday in U.S. v. Jones.  Jones pertains to the use of GPS tracking devices and goes directly to the core issues; 1) What is a reasonable expectation of privacy, and 2) When is a warrant required?  For one such analysis, here's a link to Erwin Chemerinsky's view.

We also have the emerging issue with cellphones and PDAs.  This morning, I read a great analogy by Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, who - correctly, in my view - likens PDAs to "...a key to your house. When you have someone's key, you don't just have a physical object, you have a way to investigate his life in ways you otherwise wouldn't have."  [italics/bold added]

You also need a warrant before you enter.

As an IT representative, I had the most trouble explaining this to laymen.  People who are familiar with technology better understand that the information is everywhere and nowhere.  People with less experience tend to think of information in dimensional terms, or not as the string, but as the cans on either end (what we used to refer to as 'guzinta/guzouda').

A good example of this was when I was asked by a representative of the Los Angeles County District Attorney's Office to examine their pilot program for helping parents protect their kids from predators.  One of the suggestions was to make sure that the family PC was in an open area of the house so that parents would always be able to know what their kids were doing.  They visualized the PC as if it were a telephone, e.g. I call your home number and it rings in your home on one of your physical devices.  They couldn't grasp that if the child was up to something they didn't want their parents to know about, they'd likely be doing it at a friend's house, at school or at the library.  In essence, a person could access their information anywhere, not just on the home PC.

Another example was an instruction to parents to demand that their kids provide them with their email accounts.  Again, under 18 or not, if a child is hiding something, they'll set up a free email account - and they won't be telling you about it.

Keep in mind, the above examples are pre-texting and pre-PDA.  Of course, now that we have PDAs, texting, etc., non-tech-savvy-people have a much easier time understanding the transitory nature of information.

Sometimes, though, I envision judges as those same parents.  I guess if I were appearing in front of the Supreme Court, I'd tell them that searching someone's PDA is akin to searching a 4-drawer file cabinet, but with one thing in common between the two; if the owner locked the cabinet (password-protected the PDA), the government would need a warrant. 

Now comes the more difficult argument; explaining how a password is exactly the same as a key...

e-Discovery California: Brown Cancels Leno

Continuing what many privacy advocates will see as a disturbing trend against 4th Amendment protections in the state of California (and elsewhere), Governor Brown has vetoed the 'Leno' bill, SB 914.  The bill would have required the government to obtain a warrant to search a cellular device upon an arrest.  This follows on the heels of the Supreme Court of the United States declining to grant review of the Diaz case.

In another California case, the 2nd District Court of Appeal cited Diaz in upholding the warrantless search of a digital camera.

These days, if you blink, you may miss another decision affecting the concept of privacy in the United States.

Case Got Your Tongue? I Plead the Fourth!

If things continue like this, we're not going to know what the 4th Amendment stands for, anymore.  In my neck of the woods, a three-judge panel from the 6th District Court of Appeals for California extended the authority that SCOTUS granted in Diaz.  In People v. Nottoli (H035902) [warning: link opens 38-page pdf], the Court summoned the previous 'container' argument and ruled that during an inventory search incident to a lawful arrest, a cellular device (in this case, a Blackberry) found in a glove compartment was fair game for a warrantless search.

What result if Nottoli had password-protected his device?

While California appears to be loosening 4th Amendment protections further, other jurisdictions are tightening them.  In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.), the mere movement of a mouse/touching of a keyboard was enough to trigger an illegal search ruling.  How?  Defendant's PC's screen-saver was enabled.  Nothing was visible to officers who responded to D's home to investigate the possibility of criminal behavior.  By either touching the mouse or keyboard, an officer brought the device out of screen-saver mode, revealing a Facebook wall containing incriminating evidence, resulting in D's arrest.

Citing the 'Plain View' exception, the Court reasoned that, had the Facebook wall been visible, no violation would have occurred.  However, once the officer manipulated the mouse or keyboard to reveal the page, this constituted an illegal search.

What result if Musgrove had password-protected his device?

The dichotomy between these two cases is that the former was a search incident to a lawful arrest and the latter was a search resulting in a lawful arrest (according to facts, I'm giving the officers the benefit of the doubt because only the search was ruled unlawful, not the arrest - yet).

Why does this interest me?  Anyone who has used a Blackberry knows that, under normal circumstances, the device goes into sleep mode and one must manipulate a key, the trackball or the trackpad to bring it out of that mode.

I suspect that plenty more fact-specific arguments are on the horizon...

"The Constitution Protects Your Right to be an Unmitigated Jerk"

In the midst of a custody battle, a bitter ex-husband creates a nasty blog about his "Psycho Ex-Wife".  The judge orders him to take it down.

Husband screams, "1st Amendment!".  Wife screams, "Defamation!".

Discuss.

The 6th Amendment, the Blackstone Ratio & #eDiscovery

"Better that ten guilty persons escape than that one innocent suffer."

- William Blackstone, 1783

"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."

- Voltaire, 1749

Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States.  At least, they used to...I think that claim would be up for strenuous debate these days.

But that's why I wanted to bring you this particular case for our examination.  It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them - or something like them - in civil or criminal court.  After all, attorney-client privilege is attorney-client privilege - it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.

One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable...).

Such is the case with defendant.  The government seized certain computer records, and among those records were emails from defendant to his wife - which were subsequently forwarded to defendant's attorney.  Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.

What am I telling you?  First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.

Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system).  We have a job to do, our clients depend on us and we are to zealously represent - and protect - their interests.

File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."

The Star(t) Chamber

 

Take note; the FBI has given itself expanded powers to potentially examine information such as databases or your household trash; based on flimsy - or non-existent - evidence.  This is more of a "be aware" notice as some jurisdictions have been doing this already.

But it reminded me of the movie, The Star Chamber, because there was a scene in which evidence was tossed due to agents searching a suspect's trash and the court later finding that this required a warrant; because at the time of the search, the trash was deemed not to be in the public domain.  Based on several higher-court decisions, it's unlikely one would obtain that ruling today.

So here's my question.  What're they going to do when they're searching someone's computer trash folder?  Will it depend on the location of the machine?  Are discarded electronic files the same as discarded physical trash?  Will I be making this argument in a future court hearing, someday?

At first glance, this may seem specious, but I know many people who never empty their trash folder.