Technically Legal

The iPhone Search Warrant, Google Goofs with WiFi Data, and LimeWire held liable for Copyright infringement.

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iPhone Search Warrant

iPhone Investigation Documents Ordered Unsealed (Update1)
Roommate’s Tip Led Cops to iPhone Finder
The Warrant Application

Google Goofs with WiFi Data Privacy

Google Says It Collected Private Data by Mistake
WiFi data collection: An update

LimeWire held liable for Copyright Infringement

LimeWire Likely To Shut Down Soon
CopyWrong! Kimba Wood Squeezes the Juice Out of Limewire
The Opinion

Comments Off Posted in: Podcast on May 17, 2010

The Supreme Court yesterday held argument in Quon a case which presents the question of what, if any, privacy interest a state employee has in text messages sent over an alpha-numeric pager provided by his employer.

We covered this way back in podcast 31. This isn’t a great case to address this issue, largely because the police department says they told all the employees they had no expectation of privacy in the text messages they sent. There’s also a wrinkle in that the government says that Quon could have just paid for the overage and not have been subject to the search. Also, the Supreme Court didn’t seem to be able to wrap its head around alpha-numeric pagers, which is worrisome.

Comments Off Posted in: Links on April 20, 2010

A story on Slashdot today sounds pretty scary, “11th Circuit Eliminates 4th Amend. In E-Mail.” It points to a great article from the Volokh Conspiracy about an opinion by the 11th Circuit.

I just wanted to claify that it’s not really clear what this means yet. This wasn’t a criminal case, it was someone suing a state official for violating his constitutional rights. The Feds are still bound by the Stored Communications Act (which we’ve discussed here before), so this opinion will have little or no effect on Federal investigations. And this decision, which Orin Kerr argues persuasively is wrong, is only binding in the 11th Circuit, not other courts. The plaintiff here can still petition for a rehearing, a rehearing en banc (where the entire court hears the case), or even petition the Supreme Court for certiorari (which they wouldn’t be likely to grant, at least until another court disagrees with the 11th Circuit).

Comments Off Posted in: Analysis, Links on March 16, 2010

Google Buzz Class Action Lawsuit, Social Media and Burglary, and Searches of your P2P share folders.

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Google Buzz Class Action

Local class action complaint filed over Google Buzz

Social Media and Burglary

Your Rights Online: I Use Twitter, Please Rob Me
http://pleaserobme.com/

Search Warrants and Share Folders

Feds Can Search, Seize P2P Files Without Warrant

Comments Off Posted in: Podcast on February 22, 2010

White House and Copyright, Streaming the Olympics, FBI and the Fourth Amendment

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White House and Copyrights

White House Makes Full Copyright Claim on Photos
Another Obama right-of-publicity violation; NY Times gets results!

Streaming the Olympics

Why you can’t see live streaming of Olympics — at least not legally

FBI and the Fourth Amendment

On the FBI, the Fourth Amendment and Your Cell Phone

Comments Off Posted in: Podcast on February 15, 2010

Recently Mac developer and Somerville native Daniel Jalkut had his iPhone stolen from a locker room. Daniel used MobileMe, an Apple service, to locate his phone in order to get it back. Then, he called an MIT police officer to report the crime, and presumably the street address of the alleged thieves.

This got me thinking, it’s perfectly legal for Daniel to hand all this information over to the police. But what if he were to hand over the password to his MobileMe Account, so the police could track the phone in real time, right down to the house where the thieves were keeping it? Would the police be able to do that? What if the police, with Daniel right next to them, asked him to open up MobileMe and find the phone.

Oddly, under current Supreme Court law, I think this would be an illegal search under the Fourth Amendment.

The case is United States v. Karo. Briefly, the case involved a defendant ordering 50 gallons of ether, used to extract cocaine from clothing in which it was smuggled. The DEA caught wind of this of put a tracking device in the ether barrel. They then used the tracking device to pinpoint the exact house where the ether was being kept. Using that information, they obtained a warrant, searched the house, and bused the drug dealers.

The problem the Supreme Court had with this (in a starkly divided opinion), was that the DEA was using this electronic device to do a search that they never would have been able to do without a warrant. They could have easily followed the car from where they picked up the ether to the house, but the police would have risked detection. Instead, they used this device to essentially search the house from the outside.

You run into a similar problem with the iPhone. Daniel could print out the information from MobileMe, give it to the police with a statement about how he got it, and they could get a warrant from that, and that would probably be A-OK (assuming you could explain this all to the judge who was reviewing the motion to suppress). However, as soon as the police take over the MobileMe account, or even direct Daniel to check it, you run the risk of violating the thieves’ right to be free of unreasonable searches or seizures.

You don’t run in to this problem with LoJack or OnStar, because those cars are on the road, and you don’t have a reasonable expectation of privacy in the location of a car if it’s on the street. But here, without a search warrant the police wouldn’t be able to tell if the iPhone was in your house, and there is a strong argument that the police using the Find My Phone feature would violate the Constitution.

1 Comment Posted in: Analysis on February 9, 2010

Somehow this story slipped past us last week. A Federal District Court in Oregon held that a man had no reasonable expectation of privacy in files that was easily viewable over his unsecured wireless network.M

The man had an unsecured network which a neighbor was using. The man was allegedly using Limewire to download child pornography, and had Limewire and iTunes set-up to automatically share the downloaded files through iTunes’ built in sharing.

The neighbor was browsing the man’s shared files and stumbled across the child porn.

So, count this as reasons:
(1) Not to have an unsecured network
(2) Not to use Limewire, which is full of malware, and
(3) To check your sharing settings on all your apps that have a default.

Comments Off Posted in: Links on February 8, 2010

Attorney, blogger and law professor, Eric Goldman, posted an excellent writeup today on several recent cases concerning the 4th Amendment “right to privacy” in state supreme court cases.

While some laws have been easily applied our new technology-laden world, others either provide complications or simply have not yet been applied–making the legal significance of a piece technology unknown.  In his post, Goldman points out several recent decisions concerning the application (or potential application) of 4th Amendment privacy rights to technology in both civil and criminal litigation, including:  cell phone and text message privacy; expectations of privacy in documents or data held by a third party; and GPS tracking devices and a right to privacy.  Read his post for the full recap.

You might not think the particularities of search and seizure law matter much to you (I don’t commit crimes anyways! Why should I care what the police can search?!).  However, you may find the fundamental concepts which support these laws today might influence future policies that affects our electronic data and online activity privacy rights–especially when it comes to how online service providers can handle our private information, whether it’s demographics, physical mailing address, phone numbers, e-mail, social security numbers, and the list goes on.   It’s very much a subject worth following as it develops.

Basic Background of the 4th Amendment “Right to Privacy”

If you are not already a lawyer, law student, or US constitutional aficionado, you probably recall the 4th Amendment from your high school (or college) civics classes.  Embodied as part of the Bill of Rights, the 4thAmendment affords a right to the “people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.”  Additionally, the text provides a method for authorities to conduct what would be otherwise “unreasonable searches and seizures” if they obtain a warrant, “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “   Side note: the 4th Amendment applies to the States through the 14th Amendment, hence why we see _state_ courts grappling with the application of the U.S. Constitution to local matters.  (See Mapp v. Ohio, 367 U.S. 643 (1960)).

You’ll notice there is no mention of the word “privacy” within this Amendment, but we’ve all come to know this section of the Constitution to afford a general right to privacy.  In fact, the modern notion of a “right to privacy” was articulated  into both criminal and civil law through judicial decisions interpreting the meaning of the textual language of the 4th Amendment.

The 4th Amendment is commonly invoked in criminal matters.  Even if you’re not especially familiar with criminal law, you probably know that a police office can’t just walk into your home and seize a piece of evidence.  Absent certain exigent circumstances, an officer would need to have a warrant to conduct such a search for contraband or evidence.  Similarly, if you are stopped on the street by an officer, absent probable cause, if that you have not committed a crime witnessed by the officer, you cannot be arrested nor have your purse or backpack searched without a warrant.  Note here that the concept of “seizure” also extends to a person– if you are arrested, you are effectively seized–in addition to search of belongings.   In the law, this prohibition on search and seizure was articulated into a test which is still applied today in Katz v. United States, 389 U.S. 347 (1967).  The right extends to tangible and intangible property where a person has an ” reasonable expectation of privacy”– the expectation must be one that is generally accepted by society, not subjectively by an individual.  E.g.,  just because I consider the open trunk area of my SUV which is visible to to the public to be a private area, doesn’t automatically deem it so.

The effect of the 4th Amendment is profound in criminal proceedings.  Importantly, a rule known as the “exclusionary rule” prohibits the introduction of unconstitutionally obtained evidence into the record on trial (a jury should never see it).  Thus if that “expectation of privacy” was violated when an officer searched an individual, in most circumstances it will not be permitted into evidence at trial.  Of course, like with almost everything in the law, there are a number of exceptions and the law is incredibly nuanced.

Beyond criminal proceedings, the notion of an “right to privacy”  is a subject in civil law too.  A number of torts recognized in the U.S. legal system which have evolved from the “expectation of privacy” concept.  In other words, should a person find themselves the victim of a civil privacy injury,  they can sue another person (or legal entity) for damages and sometimes equitable relief (e.g., an injunction).   The most universally recognized throughout the 50 states are:  “intrusion on solitude” (e.g., physical intrusions on private areas); “false light” (e.g., wrongly portraying someone in a news report on purpose, or defaming someone); “public disclosure of private facts” (e.g., publishing or disseminating certain private facts about a person); and, “misappropriate on likeness” (e.g., using a person’s picture in a commercial advertisement without permission).   A number of other laws governing privacy rights have also been legislated, including the handling of electronic data (see Electronic Communications Privacy Act and the Stored Communications Act) and certain protections on sensitive health care information (HIPAA).

Both from the Constitutional and civil standpoints, these laws regulate the everyday privacy we enjoy and sometimes take for granted.  As societal norms evolve, it’s important to ensure the law properly reflects what we think of as privacy.

Comments Off Posted in: Commentary on January 19, 2010

The EFF has a great post up comparing the Oregon case we talked about on this week’s podcast with a New York case.

In the New York case the government conceeded that the e-mails were protected by the Fourth Amendment (something that wasn’t quite at issue in the Oregon case). There, the judge found the warrant, which allowed the police to get access to all the defendant’s e-mails was overbroad and invalid. But, the judge never decided if the Fourth Amendment protects e-mails.

It’s an interesting read, but I think we disagree with the EFF’s characterization of the Oregon case, and whether it actually decided that e-mails were unprotected by the Fourth Amendment.

Comments Off Posted in: Links on November 4, 2009

Not to bite the hand that feeds us, but a recent post on Slashdot about a Massachusetts GPS Tracking case got it really wrong.

The case held that GPS tracking of a car requires a warrant, which the post seems to think is an invasion of privacy. True. It is. But Massachusetts is one of only a handful of states that says you even need a warrant to slap a GPS tracker on a car. Most states, and most Federal Courts, say that it’s fine to do so without a warrant as long as the GPS device isn’t inside the car. So, Massachusetts is more protective of rights than most of the rest of the country on this issue.

Second, the post says that Justice Gants dissented. He did not. He agreed with the court, but on different grounds. The majority of the court said that putting the GPS device on a car constituted a seizure of the car under the Fourth Amendment. That because the Police were using the car for their own purposes, they needed a warrant.

Justice Gants, and two other justices, said that this constitued a search under the Fourth Amendment. In other words, that people have a reasonable expectation of privacy that their car will not be followed 24/7 by police officers. He’s also wrong.

First, the reasonable expectation of privacy isn’t from just police intervention, it’s a general reasonable expectation of privacy. Second, police *can* follow your car 24/7 without a warrant. Yes, it is more difficult than using a GPS device, but ease of the investigation doesn’t bear on whether you have a reasonable expectation of privacy there.

I’d like to be clear. I agree that putting devices on the car is a seizure under the Fourth Amendment, and should require a warrant. So I don’t disagree with the result, just the reasoning of the concurrence.

One last note: While I’m talking about this in Fourth Amendment terms, and the case technically rested on the Massachusetts Declaration of Rights, the relevants standards are unchanged (see the concurrence at page 3).

Comments Off Posted in: Commentary on September 18, 2009