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...

...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...

Tips & Tricks: I'm Suffering from Writer's Blawg...

It seems like all I'm doing these days is writing.  Writing, writing, writing...

I came across this post from my colleagues at K&L Gates ("Electronic Discovery Law" on my blogroll).  They've created a comprehensive list - with links - to all of the states that have enacted e-Discovery rules. 

This is simply a fantastic resource - and it's why they're on my blogroll in the first place!

I hope you find it as useful as I do.

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.

#ABA Seeking Comments Re: Loosening Restrictions to Cross-Border Practice

The ABA has cited a deadline of November 30th, 2011 for comments on several proposals to make it easier for attorneys to practice across multi-jurisdictional lines.  The proposals may be viewed on the ABA's "Ethics 20/20" Commission web page, however, comments may only be submitted via email.

These proposals should be of particular interest to eDiscovery professionals, especially now that cross-border issues are more prevalent than ever with the explosion of cloud computing and other technological advances.

As a Consultant and Attorney, I'm constantly bending over backward to make sure potential clients understand that I'm licensed in California, while at the same time I'm free to consult anywhere.  The tension arises when an out-of-state project or case begins with a consulting agreement, then is in danger of meandering into law practice.  Clients can't always tell the difference; but I can, and it means having a further conversation to clarify my role.

Heck, the disclaimer on this blawg exists for the same reason!

Any modification to the Rules that would ease this burden would be highly beneficial to eDiscovery professionals.  Of course, in my case, I must still defer to the California Rules, but you gotta start somewhere...

Let your voice be heard.  Send your comments to the ABA by November 30th, 2011.

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 Truth about Truth as a Defense

You can be held liable for telling the truth.  That's right.  As counter-intuitive as it sounds, it's (for lack of a better word) true.  I mention this because, once again, I'm hearing that someone - a blogger, in this case - was held liable for reporting the truth - and everyone gets into a lather.  How can this be?  It's a travesty of justice!

Well, technically, they're right.  The pure definition of defamation includes a false something.  But this sometimes clashes with other laws, such as the right to privacy, also referred to as "the right to be let alone".  After all, some truths are private.

We could argue all day about a court's right/wrong decisions, but taking the above case as an example, they seemed to be looking at the totality of the conduct of the defendant - and the results of that conduct.

Ultimately, as the post's author explains, this case came down to contract law.  They got the defendant on tortious interference.  We'll see what happens on appeal.

Something to think about prior to that next gossip session at the water cooler.

Braking Bad: #Amazon Stops CA Taxman with Deft Maneuvers

Well...that was the week that was; a shortened holiday week in which I didn't get any opportunities to write (I guess that's what Twitter is for at times...).  I did Tweet about Amazon's fight with the State of California over collecting Sales (Use) taxes.  However, a deal has now been reached.  Why italics?  Because it's not much of a deal.  In my opinion, the winner - at least in the short term - is Amazon, and they accomplished that win through sophisticated use of the political system.

Elevator description: The state passed a law requiring Internet retailers to collect sales (use) taxes beginning July 1st.  Not surprisingly, Amazon wasn't fond of this idea.  They embarked on a course to get a Proposition repealing the law on the upcoming June 2012 ballot.  California wasn't fond of this idea.

What's the deal?  Kick the can.  Everybody stands down for a year.  Anyone else notice that very little is being resolved at the state and federal level?

Why do I feel that Amazon's the short-term winner?  Had they qualified to get the Proposition on the ballot - and with their resources, that wasn't likely to be a problem - the law would have automatically been suspended, pending the outcome of the ballot fight.  So, California agreed to do what would have inevitably occurred on its own.

Thing is, we're still mired in the Great Recession, budgets are upside-down and this gives lawmakers cover to capture more revenue - or at least make the attempt.  We'll see what Governor Brown does next.

As for the long term?  Ask me in a year.  These days, that's considered the long term.

e-Discovery California: How am I Behaving? Text 800-IM-DRUNK

A bunch of people get together on a Saturday night.  They drink beer.  They drink more beer.  At last call, wanting to keep the buzz going, they order two more beers - and guzzle them.  Somebody looks at somebody else sideways and a fight breaks out.  And so it goes at the local pub?

Yes, but so it also goes at the local baseball diamond, etc.  "I went to the fights and a hockey game broke out!"

Now, California Assemblyman Mike Gatto (D-L.A.) wants to establish a new law that would beef up penalties for fan misbehavior at sporting events.  It would also fund a reward-based program to encourage fans to report other fans.  Here's why I think this is a misguided idea:

1. Ever heard of Crime Stoppers, et al?  Mechanisms already exist for reporting crimes.
2. Why is this venue singled out?  Because it's on the news?

A more reasonable approach, among others, is the method adopted by some teams that enables fans to text information about incidents directly to security personnel.

The minute one introduces pay-for-play to the mix, the potential for abuse increases.

Heck...next you'll tell me they're gonna pay kids to go to school!