From the February 2014 Issue of the Cardozo Law Review:
Zachary Ross, Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Data. Excerpt:
Technological change is often a double-edged sword–it enables and enriches our lives, but also allows for new means of exploitation and control. As social, architectural, and market barriers protecting longstanding notions of personal space erode, individuals increasingly rely on the legal system as a defense to arbitrary invasions of privacy. Paradoxically, the same forces that make the need for robust privacy protections more compelling also make the existing legal framework outdated and inapposite.
These contradictions are readily apparent in the contemporary debate over the legal restrictions on government access to cell site location information (CSLI). This data, constantly collected by cell phone service providers (CSPs) in order to manage their networks, has the potential to provide a detailed map of an individual cell user’s movements from place to place over extended periods of time. Furthermore, the quantity and precision of location data collected by CSPs is constantly increasing, becoming more revealing, and more valuable to law enforcement in the process. Despite the potential intimacy of this data and its growing relevance to criminal investigations, the legal protection afforded CSLI is hotly disputed, and at present varies greatly among (and sometimes even within) jurisdictions– with courts sometimes requiring a warrant, and sometimes allowing unfettered access upon a lesser evidentiary showing. This lack of uniformity has been exacerbated by a recent Fifth Circuit ruling on government access to CSLI, which generated a different rule than had previously been adopted by the Third Circuit. The vastly disparate treatment of government requests for CSLI has created a chaotic system ripe for abuse, and all but guaranteed Supreme Court review of the issue in the near future, as the Court itself seems to have implicitly acknowledged.
This Note will examine the complex interaction between privacy, surveillance, and technology through an exploration of the contested legal terrain governing law enforcement access to historical CSLI–location data recorded by CSPs which reveal an individual’s past movements.
The ACLU recently released documents detailing how the United States targets citizens for domestic investigations by abusing the border search exception. The doctrine allows for searches and seizures to take place at international borders without probable cause.
David House had his computer, phone, and other devices seized as he returned to the United States from vacation. House was then working with the Bradley Manning Support Network.
Government documents demonstrate how House was placed in a database which notified Homeland Security Investigations (HSI), a department of ICE, of House’s plans to travel internationally. “HSI was acting in cooperation with—and perhaps at the request of—the Department of Justice, the Department of State, and the Army’s Criminal Investigative Division.”
Ultimately, House’s devices were searched, and 26,000 files were evaluated. However, the government concluded that “no data was found that constituted evidence of a crime.”
The documents, released as part of House’s settlement with the government, are available here.
In Smith v. State, No. 2012-KA-00218-COA, the Mississippi Court of Appeals addressed authentication and hearsay arguments regarding social networking messages in a case of first impression. The court ultimately found the messages to have been properly admitted.
The defendant was convicted of capital murder for the death of his stepdaughter, a seventeen-month-old girl. At trial, the prosecution was allowed to use as evidence Facebook messages sent between the defendant and his wife.
On appeal, the defendant argued that the Facebook messages should not have been admitted because they were not properly authenticated and were hearsay. As to the issue of authentication, the court found the messages to be properly authenticated because the wife testified that the printouts were “Facebook messages between her and Smith.”
On the hearsay issue, there were two types of messages before the court. One was an e-mail notification produced automatically by Facebook notifying the wife of a new message which contained the content of the message itself. The other was a printout of wall postings from the defendant on the wife’s page. The court found that because the e-mail was “a fully automatic process, … [it] may not be considered as hearsay.” Comparing the case to one a federal court opinion, the court reasoned:
The court noted that when someone forwards an email, he or she has made an out-of-court assertion as to what someone else said. Id. There, however, a person forwarded the message. Thus, there was an assertion and a declarant. Here, an automatic process sent each message. As a result, in this case there was neither an assertion nor a declarant. The email notification, which contained the Facebook message, is not within the definition of hearsay.
The court then found that the defendant’s statements were admissions by a party-opponent and therefore not hearsay. The wife’s statement “could be hearsay” and no exception was offered by the state, but the error was considered harmless.