Thursday, June 26, 2014

The Supremes take a big step to protect your cell phone data from unreasonable search.

Riley v. California protects all of us from immediate and unwarranted police intrusion. Decided on June 25, 2014, the United States Supreme Court made it the law across the entire Country that our digital information may not be mined from our cell phone simply because we are arrested.  The police may quarantine your phone and remove it from network access, but they must obtain a warrant before digging through your data and apps. The Fourth Amendment to the United States Constitution continues to protect all of us from unreasonable searches and seizures.

The Fourth Amendment assures that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supremes have resolved conflicting lower court rulings from California and Massachusetts about whether police search and seizure of cell phone data after an arrest was reasonable, or whether it was unreasonable in the absence of a warrant. The justices were required to apply old principles of Constitutional law to new smart phone technology that a "...visitor from Mars might conclude [is] an important feature of human anatomy." How to apply two hundred year old ideas to technology that was inconceivable just ten years ago?  The court did not have a single prior decision to address the issue, but was required to cobble together an analysis from other "search incident to arrest" cases.

You may ask yourself "what's the big deal, get arrested and deserve what you get, right?"  Then also ask yourself whether you would feel violated if a speeding ticket would be enough justification for law enforcement to scroll through your phone contact list, phone log and social media apps?  And what if substantive criminal charges arose from what the police found on your phone?  That is what happened in the two cases from California and Massachusetts.

California's highest state court affirmed a conviction based on cell phone data retrieved after Mr. Riley was arrested for a traffic violation.  His cell phone was taken from his pants pocket.  The phone contained texts and videos reflecting gang activity leading to additional charges against Mr. Riley.  He was charged in connection with a shooting, and at trial the State of California sought enhanced penalties due to gang affiliation evidenced in the videos.

In Massachusetts the federal appellate court overturned a conviction based on cell phone data in a similar case. In Massachusetts, Mr. Wurie was arrested after being observed in a drug sale.  His cell phone was inspected by the police. They used his call log showing heavy activity with certain cell numbers to obtain a warrant to search his apartment.  The police found drugs, guns and ammo. This lead to additional charges and a conviction.

Older Supreme Court cases give us some protection, already, from unreasonable searches by the police.  Traditional application of older law says that police may search us without need for a warrant  if it is done "incident to arrest." That means a search of our immediate person and vicinity to discern weapons or objects that might harm an officer or facilitate our escape. It also means gathering evidence of the suspected crime before it is concealed or destroyed.

So, where does a cell phone residing in your pocket or purse fall within this analysis? And what of the data and access to further data through your apps fall within this analysis? With an estimated 327 million cell phones in the United States, the answer to these questions impact your privacy, mine, and the privacy of every person linked to us via our smart phones.

The "incident to arrest" search has historically been limited to physical objects. But the intangible data on your smartphone does not quite fit, and it is not the same threat to the cops.  The Government argued in this case that data poses an indirect threat, perhaps, and that preventing remote wiping or data encryption could justify an immediate search incident to the arrest.

The Court rejected all of this, confirming our common sense understanding that comparing the risk to officers caused by physical objects to the risk created by intangible data is like comparing "a ride on horseback" to a "flight to the moon."

The risk of data loss to encryption and remote wiping can be readily mitigated if the phone is segregated from its network, perhaps in a "Faraday Bag," or by removal of its battery. The normal process of obtaining a warrant for further examination can then be obtained by the police in the ordinary course.

Chalk up a victory for your personal privacy. Other aspects of Government intrusion into your life may continue, relatively unabated, but you are slightly more protected from intrusions into your electronic life by the beat cop.

Sunday, June 1, 2014

Fight or fail, it's your case!

There is a high cost to filing or defending any civil lawsuit. The filed complaint is followed by a period of "discovery," where each side makes written requests for information, and where parties and witnesses must sit for deposition. It is where much of your litigation costs are incurred.

Starting or defending a court fight is expensive, and it takes focus over a prolonged period of time.

The skilled practitioner will focus the available discovery tools to maximize you budget, but you cannot control what the other side will demand of you.  The court schedule and rules have broad restrictions on discovery, but when you enter the litigation realm you will be immediately subject to multiple demands by the other side. You must respond to written interrogatories, requests for admission of facts and authenticity of documents, requests for production of documents and things, electronic data, physical examination or independent medical examination, deposition. Responses must be carefully prepared, and timely produced. And none of the effort to generate your responses comes cheap.

And your lawyer cannot answer discovery without your close involvement- after all, the questions relate to YOUR life and business, not his.

On May 29, 2014, the Maryland Court of Special Appeals decided Valentine-Bowers v. The Retina Group and hammered down a plaintiff who absolutely failed to adhere to the rules on discovery. After having sued a doctor and his business for medical malpractice, Ms. Valentine-Bowers did not play by the rules.

  • She did not file responses to discover requests;
  • She did not appear for deposition;
  • She did not stay in touch with her lawyer or respond to his requests;
  • She and her lawyer did not comply with several court orders compelling her participation.
Ms. Valentine-Bowers' case was dismissed by the trial court. And the appellate court confirmed the correctness of this decision.  In the face of Ms. Valentine-Bowers' absolute refusal to participate in the lawsuit that she started, dismissal of her case was necessary to protect the defendants, and the sanctity of the court system.

What does this mean for your case?  

Whether you have filed a case, or you are defending against the claims of others, you have no choice but to participate in the discovery process. Close cooperation with your lawyer is the investment you must make to manage both your time and expenses. Work the case, together, to a satisfactory result.