Oregon State Bar Bulletin — OCTOBER 2011

Ever feel like somebody is watching you? There’s a good chance that it’s true, if not literally then at least electronically. We all leave a permanent electronic trail via our smart phones, GPS devices, call records and even our Google searches. A question of concern for many is, what is being done with that information?

For many prosecutors, the explosion of electronic tracking information now available has been a boon to gathering evidence that can be used to secure convictions. The National White Collar Crime Center’s “Cyber Investigation” series includes courses on acquiring, analyzing and seizing information contained in cell phone and GPS devices; setting up an undercover online account to track real-time chats and instant messages; and using a bootable CD that can read the files on other computer systems without altering the data on those systems.

Electronic evidence is the specialty of the FBI’s Regional Forensics Computer Laboratories, which have rapidly become a key crime-fighting tool and helped seal the convictions of former Illinois Governor Rob Blagojevich and several Enron executives. According to a recent Associated Press article, there are 144 such laboratories across the country.

Last year, they examined 57,000 hard drives and 75,000 pieces of digital media. Those 3,000 terabytes of information equal 3 million copies of the Encyclopedia Britannica.1

Divorce lawyers are certainly finding such data handy. In a survey conducted three years ago, 88 percent of members of the American Academy of Matrimonial Lawyers said the number of cases in which they’ve introduced electronic data had increased greatly over the last five years. Texas family law firm Bortolino LLP points out that Facebook is an obvious potential goldmine of information about an estranged spouse’s activities, along with online financial management programs, emails and recorded conversations.

How and when to use electronic information is a growing debate in Oregon. Last March, Lewis & Clark Law School’s Oregon Law Institute presented a day-long seminar during which a panel of attorneys discussed issues such as forensic file collections from cell phones and computers, discovery from webmail and social media providers, and the legal and ethical parameters of e-discovery.

Josh Marquis, Clatsop County District Attorney, says he uses social media to gather information about defendants and even screen jurors because “people say the darnedest things on Facebook.”

Where Public and Private Collide
The line between private and public information has become increasingly blurry since the Patriot Act was signed into law by President George W. Bush on Oct. 26, 2001. A decade later, the government’s standard for the protection of personal information has fallen so low that private information can be used for measures way beyond simple probable cause that someone may be a terrorist, says Janet Hoffman, a Portland criminal defense attorney.

“It’s like the Watergate days when Nixon and his staff were looking through the private records of people to find information related to trivial crimes to be able to harass people,” she says. “We as a public have some real concern about this. Fear of privacy invasion impairs our conduct, and it’s not the kind of society that we feel like we bargained for.”

Apple caught the backlash of this concern when it came to light that its iPhones and iPads were secretly tracking the geographic locations of users. At the time, the information was not encrypted, making it vulnerable to hackers. The fact that it was unencrypted also meant law enforcement officers didn’t need a warrant to access it. Cell phone providers routinely keep such information, but a court order is required to obtain it.

While Apple has since taken measures to better protect its tracking information, privacy rights proponents are investigating whether Google Android and other, similar devices also store a permanent record of tracking data. Cell phones typically track their user’s whereabouts by pinging off of particular towers, a technology that has been used to find missing people and save lives. For many, though, the concern is how such information can be used in harmful ways and what, ultimately, is done with the permanent records.

Congress weighed in on the issue during the Apple uproar. Sen. Al Franken, D-Minn., was quoted as saying it raises “serious privacy concerns,” especially for children using the devices, since “anyone who gains access to this single file could likely determine the location of a user’s home, the businesses he frequents, the doctors he visits, the schools his children attend and the trips he has taken – over the past months or even a year.”

Some fear the public agencies’ invasion of their privacy, while many others cite the private sector as the greater threat. Rep. Edward Markey, D-Mass., noted that the practice of tracking consumers’ geographic location for commercial purposes is illegal if the consumers don’t know about it.

Facial recognition software also is stirring up controversy. Law enforcement at airports and other locations that could be vulnerable to attacks use it to identify people they suspect as terrorists. In a more innocuous application, a growing number of social media outlets and mobile application companies have incorporated it to “tag” photos of people, making it easier to find photos of a particular person. The downside is that people may not always want to be recognized in photos.

John Henry Hingson III, an Oregon City criminal defense attorney and past president of the National Association of Criminal Defense Lawyers, says he believes the Fourth Amendment has been severely damaged, if not fatally, by technology.

“Law enforcement frequently ‘passes off’ information that may be illegally obtained or surreptitiously obtained, and there’s no mechanism to find out about such invasions unless you are super vigilant or — and hopefully not — super paranoid,” he says.

Hoffman sums it up this way: “The issue is that there are vast amounts of information about all of us out there, so how much access should the government have and how should that be used in courtrooms?”

Changing Expectations of Privacy
As the privacy rights debate continues, the legal focus rests on whether people have a reasonable, objective expectation of privacy. It’s a moving target at this point. For example, notes Hoffman, the average person walking around London can expect to have their picture taken up to 300 times a day, thanks to the bevy of security cameras throughout the city that were installed to protect it from further terrorist attacks.

Given the many ways that various interests — public and private — can track our whereabouts, determine whom we’ve called or texted, taken our picture, learned where we’ve made purchases and what we’ve looked up on the Internet, do any of us really have a reasonable expectation of privacy anymore?

“As the concept of privacy diminishes, so does the reasonable expectation of it. That’s the concern of civil libertarians,” Hoffman says. “What I think is really interesting is that when we first created an expectation of privacy under the federal Constitution, it was what people chose to show to the outside world versus what they preferred to keep private.”

Like anything that can be negative or positive, electronic tracking is a double-edged sword. On the plus side, it has helped confirm the innocence of people wrongly accused of crimes. “It’s like good news/bad news, depending on how it’s used,” Hoffman says.

Amy Baggio and Lisa Hay, both with the federal public defender’s office in Portland, have been watching the issue closely and have seen just how complicated it is. Federal district courts throughout the country are offering conflicting opinions about what should be considered private and what should not.

Take email for example. U.S. District Court Judge Michael Mosman ruled in 2009 that there is no reasonable expectation of privacy for emails, unlike the contents of a letter sealed in an envelope. Therefore, police can obtain a warrant to read a person’s emails without notifying the senders or receivers. The U. S. Court of Appeals for the Sixth Circuit had ruled in 2007 that law enforcement officials had to notify the sender first because most people believe their emails are private.

Some courts have ruled that GPS tracking of automobiles is fair game as long as the tracking device is placed somewhere on the exterior of the vehicle. The U.S. Court of Appeals for the District of Columbia Circuit disagreed in a 2010 ruling. The issue now rests in the hands of the Supreme Court.

In United States v. Maynard, FBI agents — without a search warrant — planted a GPS device on a car while it was parked on private property and then monitored it for a month. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union filed an amicus brief in the case, arguing that it cleared the way for police to abuse surveillance powers without ever having to prove to a judge that the surveillance was justified.

According to the EFF, the appeals court recognized that the Supreme Court had not considered GPS tracking of such length and scope when it approved such surveillance.

The courts agree that there is no expectation of privacy when it comes to public surveillance video. What gets tricky, however, is when seemingly private electronic information that may have been illegally obtained is then used to gather and support evidence that was legally obtained.

“Sometimes by the time applications for warrants or wiretaps are filed with a court, the applications omit the initial technologies used to gather preliminary information in the investigation. That should give people pause because then we don’t know how frequently or on whom those methods of information-gathering are being utilized,” Baggio says.

Administrative subpoenas complicate the issue even further, because they give law enforcement agencies the authority to request certain records and documents without any court involvement. While the Stored Communication Act protects certain types of information, it also allows law enforcement to use administrative subpoenas to obtain people’s call histories from cell phone providers, for instance.

“It’s very rare that a recipient of an administrative subpoena moves to quash, so most providers will just hand over the records,” Baggio says, noting these call detail records may include numbers dialed out, numbers calling in, the length of the call, whether the call was received or went to voicemail, whether it was a voice call or a text communication, and cell tower location information. What types of information given in response to the subpoena varies based on the particular service provider and how it maintains its records. It is argued that these are merely ‘historical billing records’ subject to administrative subpoenas, but considering the amount of information these records may reveal, I find this troubling.”

“This is such a tremendously important and quickly evolving area of the law,” Hay adds. “The courts lack the community norms to make their decisions because there aren’t a whole lot of community norms yet. Technology is changing so fast — what degree of privacy is reasonable to expect?”

Lack of a Legal Framework
As state, district and federal courts grapple with the privacy rights issues that arise with electronic tracking, the Supreme Court already has issued some key rulings.

Hingson refers to Kyllo v. United States, a 2001 case in which he participated during the trial phase. The case, which ultimately went to the Supreme Court, outlawed the warrantless use of thermal imagers to examine the insides of houses. Most frequently, such imagers are used to detect heat that would give away large-scale marijuana grow productions. The ruling overturned Danny Lee Kyllo’s conviction for growing pot.

In Hingson’s opinion, the Kyllo case was as precedent setting today as Katz v. U.S. was in 1967. Back then, the FBI used a wiretap to track Charles Katz as he transmitted illegal gambling winnings to different states. Katz argued that the use of such recordings violated his Fourth Amendment rights, and his conviction was overturned.

Hoffman points to the Supreme Court’s current wrestling match over whether GPS tracking devices can be used for an indefinite period of time without the tracked person’s knowledge.

“We know that what you do in public is not protected. Watching a car in public is a public act and cops can write down license numbers or take photos of cars running a stop light,” she says. “But that’s a different technology than being able to completely track someone for a month without their knowing it.

“As a criminal defense lawyer, I find these issues make it really hard to develop where the analytic framework should be, and the courts don’t have an analytic framework,” Hoffman adds.

As the courts struggle to keep pace with the new technologies that emerge, the question becomes whether the public should be protected through court rulings or through legislation.

“Since the courts respond so slowly to privacy issues related to technology, I think the future of privacy rights lies in legislation and not in lawsuits,” Hingson says. “And I don’t think most lawmakers are knowledgeable enough to address the issue adequately.”



1. “Fighting crime the digital way: FBI and local police agencies deploy high-tech tools to help catch the bad guys,” Lynn DeBruin, Oregonian, July 31, 2011. (Later quotations from Sen. Al Franken and Rep. Edwards Markey were also reported in DeBruin’s article.) 

Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2011 Melody Finnemore

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