Human Property

The Obama Administration is arguing before a federal appeals court that the government can track individuals through their cell phones without a warrant because there is no “reasonable expectation of privacy” in their cell phones’ whereabouts.

Articles in CNet and Newsweek describe the government’s increasing ability to turn a person’s cell phone into a “surreptitious tracking device.”

There are two main ways to track you through your cell phone.  The first is to look at phone records that show the corresponding cell phone towers that connected a specific phone call.  The second is to use the GPS within your phone as a real-time tracking device.

The government is increasingly asking for these records as part of government investigations.  Seattle attorney Al Girdari tells Newsweek that telecommunication companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years.

Last year, a federal judge denied the government’s request for these records and ruled that under the 4th Amendment, a finding of probable cause and the issuance of a warrant was required.

Now, before an appellate court, the government is arguing that a search warrant is not necessary because the records provide “only a general indication of the user’s whereabouts at certain times.”

In examining this issue, an appellate court will look at what society considers its “reasonable expectations of privacy” related to the government activity in question.  This is a flexible analysis where a court really looks at social practices based on technological developments and the impacts of those developments on society.

Back in the old days, if you made a phone call you would either do so from your home or go to a telephone booth.  The fact that you shut the door behind you in a telephone booth was the reason why the Supreme Court found a “reasonable expectation of privacy” in a phone conversation and required a warrant for phone taps in the 1967 case Katz v. United States.

Today, people use cell phones out in the open and talk all over the place.  This is purely a function of new technology:  phones are portable and don’t need wires.  Is there a lower “reasonable expectation of privacy” with cell phones just because you can use them anywhere?  The Obama Administration believes so.

Is it really the case that our Constitutional rights can change so much — and in such a small historical period of time — simply because of new inventions?

Then again, when it comes to privacy, how else can you determine what people think is “private” without looking at current attitudes and behaviors?

Reasonable people may disagree on societal expectations of privacy, but government should always err on the side of more privacy protections and not less.  The Obama Administration’s stance on this issue is disappointing.  Police are entitled to adequate tools to conduct their investigations, but the requirement of a warrant is hardly an impediment towards those aims.  Judicial scrutiny of government action is the hallmark of a functioning democracy.  If the 4th Amendment has any real weight in our technological society, it would surely prevent a government official from tracking you through your cell phone without a warrant just because you might bear some relevance, however tangential, to the investigation of a crime.

Google Inc. and Yahoo Inc. were served with warrants related to the Erin Andrews “peeping” scandal.

The Chicago Sun Times reports that the Feds may have been looking for another video posted by the the man accused of secretly recording nude videos of the famous sportscaster.

It’s news when these companies get served with warrants because it reminds all of us how much information we all store with these companies — and how one subpoena can potentially expose a lot of our personal lives to the public.

It’s also a reminder how — thanks to the internet — one person with a camera can make another person’s life totally miserable and completely exposed to the entire planet without a lot of effort.

Courts continue to wrestle with the impacts of technological development on the Constitution, especially rules governing police investigations and the use of evidence.

Pretend that you are under investigation for securities fraud, and the government seizes your computer.  While searching your computer, they uncover your stash of music you’ve obtained off of The Pirate Bay.  Can this evidence be used against you in a totally separate indictment for copyright infringement?

Back in August, the Ninth Circuit put strict limits on what police can and cannot do when executing a warrant for electronic data.  The case involved a police investigation into steroid use in Major League Baseball.  During the course of the investigation, the police discovered 10 names of players who had tested positive for steroid use.  The police obtained a warrant to seize the computer records for these 10 players at a testing laboratory, but in executing the warrant, then seized the records for hundreds of other baseball players, as well as many other people.

On appeal, the Ninth Circuit found that the government had overreached and offered guidelines for the investigation of electronic data, including having a third party segregate and review the data before handing over anything relevant to the government:

The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation.

…

Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Absent further judicial authorization, any remaining copies must be destroyed or, at least so long as they may be lawfully possessed by the party from whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive or computer).

United States v. Comprehensive Drug Testing, Inc., slip op. No. 05-10067, 17-18 (9th Cir. 2009)

The government relied on the “plain view” doctrine in seizing the records of other individuals.  The “plain view” doctrine permits a police officer to gather evidence of a crime if it is in plain view.  When an officer executes a warrant to look for evidence of theft, and comes across your stash of marijuana, you can be indicted for drug possession even though the warrant was for something else entirely.  So, the government argued that when they went to seize the records for the 10 individuals, the rest of the records for everyone similarly came into “plain view”.

Judge Kozinski did not take too kindly to this argument:

Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been. See United States v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). Let’s take everything back to the lab, have a good look around and see what we might stumble upon.

Id. at 13-14.

Now, in a move that is angering some privacy advocates, Solicitor General Elena Kagan has asked all 27 judges on the Ninth Circuit to reconsider its opinion.  Kagan argued in a reconsideration brief last week that the Ninth Circuit’s opinion has put a halt to computer searches and should be overturned.

No one would argue that police need appropriate tools to conduct investigations in an electronic age.  But in the words of Judge Mahan, one of the federal District Court judges who heard one of the initial government motions, “What ever happened to the Fourth Amendment? Was it . . . repealed somehow?”  Permitting the government to seize anything and everything merely because it resides on a computer ignores the reasonable expectations of privacy that people now expect about their electronic files.

It also ignores the reams of personal information that people now place on computers.  No longer do people keep separate diaries, separate file cabinets, separate folders for expenses — what used to be separate and distinct (and readily distinguishable for purposes of a warrant) are probably all now kept in the “My Documents” folder.

Defendants in police investigations should consider arguments that government agents executed a warrant too broadly — thereby excluding the evidence in question.  All too often, counsel make the mistake of attacking the evidence before asking if the evidence is even admissible.  With technology advancing so quickly, government overreaching will look different than it did in an age of file cabinets and paper boxes.