By IT-Lex Intern Joey Chindamo (LinkedIn)

Is there an expectation of privacy in text messages? The Washington State Supreme Court will tomorrow hear oral arguments in two very similar cases that both asked that same question. As Courthouse News Service reported, both cases involved texting and drug deals:

Both cases involve men who were arrested after police intercepted text messages meant for an alleged heroin dealer. . .

Police had arrested Daniel Lee on drug charges and seized his cellphone… Impersonating Lee, the police then arranged drug sales with Shawn Hinton and Jonathan Rodin, both of whom had sent text messages to Lee’s phone. The police then arrested and charged these men with attempting to possess heroin.

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By IT-Lex Intern Karina Saranovic (LinkedIn)

The city of San Francisco is now answering to a lawsuit filed by the ACLU, following the police’s arrest and handling of homeless man named Bob Offer-Westort last January. Offer-Westort had set up a tent in the city’s Jane Warner Plaza, and found himself in handcuffs after refusing authority’s request to leave the premises. While in custody at the station, the police then confiscated his cell phone, and proceeded to look through all of his messages, without obtaining his consent. As Offer-Westort objected to the search, SFPD Officer Chambers responded with a statement (to effect of): “The California Supreme Court gives me the right after I arrest you.”

Is this indeed an absolute right though?

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By IT-Lex Intern Joey Chindamo (LinkedIn)

From time to time, there is bipartisan agreement in Washington. In what would be a great step forward for Americans’ digital privacy—and technology law—policy makers on both sides of the aisle are strongly in favor of updating a dated piece of legislation.

The Electronic Communications Privacy Act of 1986 (ECPA) was intended to prevent the government from conducting wire taps on transmissions of electronic data by computer. But at issue lately is the Stored Communications Act. The SCA, enacted as Title II of the ECPA also in 1986, specifically covers the disclosure of electronically stored communications and records by ISPs. The source of ire with this law is how it treats compelled disclosure of electronic communications, chiefly, the “180-day rule.” The law draws a line in the sand between electronic communications—i.e., e-mails, Facebook messages, etc.—that are older than 180 days and those that are newer than that. If e-mails are on a server for more than 180 days, it considers those e-mails abandoned, and thus accessible without a warrant.

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You may recall our recent post in which we referred to a “Constitution-Free Zone”, the 100-mile-deep boundary of the country, wherein the Department of Homeland Security reserved the right to search any electronic device, seemingly for any reason. Last Friday, in the decision U.S. v. Cotterman [PDF], the Ninth Circuit decided that, actually, the Fourth Amendment does indeed still apply even if you’re near the coast. Here’s what happened:

Agents seized [Defendant Howard] Cotterman’s laptop at the U.S.-Mexico border in response to an alert based in part on a fifteen-year old  conviction for child molestation. The initial search at the border turned up no incriminating material. Only after Cotterman’s laptop was shipped almost 170 miles away and subjected to a comprehensive forensic examination were images of child pornography discovered.

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By IT-Lex Intern Shannon Allen (LinkedIn)

Earlier, we discussed the importance of preserving text messages, and the possible sanctions that can arise from failing to do so. Here’s a recent case from Canada that applies to anything on your phone. If you get stopped by the police, can the police search your phone without a warrant?  A February 21st Ars Technica article says “[i]t depends on the circumstances and where you live.” The article tells of a recent ruling by a “provincial appeals court in Canada . . . that police can search the mobile phone of an arrested person only if there is no password on that phone.” Otherwise, “officers must get a warrant.” » Read the rest of this entry «

By IT-Lex Intern Shannon Allen (LinkedIn)

Government surveillance is in the news all the time.  This post recognizes the ongoing tension between the government’s national security mission and the reality that electronic devices, including laptops, are virtual extensions of individuals in society. A recent  Department of Homeland Security (“DHS”) ruling determined that the DHS can search any electronic device for any reason.   To be fair, the decision only applies within one hundred (100) miles of the coast (according to DHS, a reasonable distance from the border).  According to Techdirt and FindLaw, approximately two thirds (2/3) of Americans live within that range (also known as the “Constitution Free” Zone). (see the Constitution-Free Zone Map above)  Should this be troubling?

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By Benjamin R. Dryden (bio)

In civil litigation, eDiscovery disputes hardly ever rise to the level of constitutional importance.  But in the criminal arena, the rules are different.  With good cause, warrants to search computers have been called “the closest things to general warrants we have confronted in the history of the Republic.”  P. Ohm, Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 Va. L. Rev. In Brief 1, 11 (2011).  Thus, a recent decision from the Supreme Court of Vermont concerning the powers of judicial officers to impose ex ante limitations on computer search warrants is significant for both eDiscovery and Fourth Amendment reasons.  In re Appeal of Application for Search Warrant, 2012 VT 102, 2012 Vt. LEXIS 100 (2012).

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“JH” is a woman in Oregon, whose internet cut out back in 2007, and her computer automatically connected to a neighbor’s unsecured wireless network. She opened iTunes, and up popped a shared library entitled “Dad’s Lime Wire Tunes”. She opened that shared folder, and noticed a number of files with names implying that the files contained child pornography. JH called the police, a deputy came over, they verified that the files were indeed child pornography, a warrant was obtained, and the owner of the wireless network was identified as previously-convicted sex offender John Ahrndt. He was arrested, convicted for possessing these files, and sentenced to 120 months in prison. After much procedural back-and-forth, last week a district court answered Ahrndt’s motion to suppress.

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It must be Text Message Wednesday here at IT-Lex. Fannie Garcia worked as a police dispatcher in Laredo, Texas. In November 2008, another “police officer’s wife removed Garcia’s cell phone from an unlocked locker” in a police station, and “accessed text messages and images found on Garcia’s phone.” The second woman “believ[ed] she had discovered evidence of violations of a department policy,” and took the phone to department higher-ups. After an investigation, which relied “in whole or in part upon images and text messages retrieved from her cell phone,” it was determined that Garcia had indeed broken police department rules, and she was fired.

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In May of 2011, Philip Hamilton was found guilty of bribery and extortion .  A jury concluded that, during his time as a Virginia lawmaker, Hamilton negotiated funding for a state university in exchange for a job for himself at that university, and sentenced him to 114 months in prison. He appealed his conviction to the 4th Circuit, and his primary argument was based on emails between he and his wife, which were admitted into evidence during his trial. He argued that their admission was improper, and that the marital communications privilege should have kept the emails out of play.

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