Technically Legal

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

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

Torrent Search Engine Shut Down, Privacy interest in Text Messages, and Duke Nukem Forever.

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Torrent Tracker Shut Down

Torrent Search Engines Unlawful, U.S. Judge Says
The Opinion
Torrent Sites Induce Infringement and Lose DMCA Safe Harbor–Columbia v. Fung

Text Message Privacy

Today’s orders from SCOTUS Blog
Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages
The opinion below
Denial of rehearing en banc
Please Note: We said in the podcast that there was a dissent. There was not. There opinion was unanimous, but there was a dissent in the denial of the petition for a rehearing en banc, linked above.

Duke Nukem Forever

Learn to Let Go: How Success Killed Duke Nukem
Sorry, dude, Game Stop won’t be able to fulfill that Duke Nukem Forever pre-order

Comments Off Posted in: Podcast on January 6, 2010

Mininova turns away from a life of crime, Yahoo and Verizon don’t want to disclose their price lists for government spying, and the EFF sues to see how the Government spies on us using Facebook.

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Mininova goes straight and narrow

Mininova buries pirate booty in its index, aims to go legit
Mininova limits its activities to Content Distribution service
Mininova considers appealing in Brein case
Mininova ordered to purge all links to copyrighted files

Verizon, Yahoo! refuse to disclose price lists

Yahoo, Verizon: Our Spy Capabilities Would ‘Shock’, ‘Confuse’ Consumers
Yahoo!’s Response Letter
Verizon’s Response Letter
Sprint fed customer GPS data to cops over 8 million times
Slight Paranoia
Yahoo! Sends Takedown for Price List

EFF sues of Gov’t Facebook Policies

EFF sues feds for info on social-network surveillance
The Complaint

Comments Off Posted in: Podcast on December 7, 2009