At the end of its term in late June, the SCOTUS decided a Michigan case, holding that police must obtain a warrant prior to obtaining location and other data inside a suspect's cell phone. In so ruling, Chief Justice John Roberts said that modern digital technology allows wireless carriers to collect "deeply revealing" information about its customers.

This poses a problem under the 4th Amendment of the United States Constitution. The ruling was narrow to the extent that the High Court held open the prospect that police still may not need a warrant to obtain information about the location of a suspect on the day a crime was committed.

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

Historic cell phone location data and "real-time" cell phone location data are distinguished in Roberts' narrow ruling. Only the former would require a warrant, not the latter.

The bloc of conservative Justices asserted that the 4th Amendment, in its original context, did not apply to the method law enforcement used to collect ordinary business records.

Thus, for now, cell phone records have significant 4th Amendment protection under this narrow ruling. What is less clear is whether other forms of personal digital data will receive the same level of protection.

We here at Clarkston Legal have seen many criminal cases turn on the admission of maps based on cell phone data. The exclusionary rule implicit in the 4th Amendment is directly at issue in such cases.

The SCOTUS has decided a half-dozen significant cell phone related privacy cases. We will continue to monitor the High Court's docket to report on these interesting decisions.

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Increasingly, social media, lenders, and even retailers are obtaining cell phone numbers as a way to track individual consumers. A 10-digit cell phone number is becoming a number, like a social security number, that stays with you for life.

Unlike a social security number, however, there are no federal or state privacy laws preventing its dissemination. So the numbers are disseminated; used by companies to track consumers' conduct such as what shows we watch, what products we purchase, and even what sites we visit on the Internet.

Particularly for Millennials, there are two sets of numbers that follow them through their lives: their cell phone number and their social security number. Most Millennials have never set-up and maintained a land-line telephone account.

The combination of a cell phone number and name is more valuable to marketers than a social security number. This is because cell phones are now connected to so many databases and because individuals almost always have their cell phone with them; in their hands and operational.

Just as with your social security number, cell phone numbers are increasingly used to facilitate identity theft. On the other hand, your cell number is also used for fraud prevention. Many banks are using customers' cell phones to text a security code when the customer needs to change their password. Also, some credit card companies and other payment services such as PayPal are using cell phones to text temporary PINs to digitally confirm the purchaser's identity and prevent fraud.

Some customers are downloading innovative apps on their cell phones that all the company to track all of their daily activity: web sites visited, calls made, contacts stored etc, in order to assess them as a credit risk and potentially extend a loan. Not conventional, but convenient. For someone with a poor credit rating, they forego privacy for the convenience of a small loan.

Take care when providing your cell phone number to a company. When you do, you give up a significant slice of your privacy.

Post #567

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One of my first jobs as a new lawyer in the early 1990s was representing insurance companies as an associate for a big law firm in product liability lawsuits. The injuries and deaths caused by ubiquitous machines like vehicles, presses and cranes were often horrific.

In some of the suits, the evidence involved whether safety mechanisms purposely had been subverted by the machine operator causing injury. Causation, an element of any tort suit, was the most litigated issue.

Should cell phone manufacturers be required to implement newly developed technology that can block drivers from sending or receiving texts on their phones? The family of a fatally injured distracted driving victim recently filed a lawsuit raising this causation issue.

Apple is named as a defendant in the suit. The pleadings reference a telematics patent granted to Apple that would lock-out a driver's ability to manipulate the phone while driving.

The technology uses sensors that determine whether the phone is moving and its exact location. If the phone is within the space of the driver's seat, certain functions, like texting, are disabled.

Although the patent was granted in 2014, it is unknown whether the tech giant has developed a product with the technology. In its 2008 application for the patent, Apple stated:

Texting while driving has become so widespread that it is doubtful that law enforcement will have any significant effect on stopping the practice. Teens understand that texting while driving is dangerous, but this is often not enough motivation to end the practice.

Some product liability experts have compared cell phone manufacturers to manufacturers of high-capacity magazine guns; they could choose not to manufacture those products but do so anyway.

Not all legal experts, however, agree with the concept of regulating the cell phone industry. The dangers of using a cell phone while driving is squarely placed with the individual driver.

Accordingly, the products liability lawsuit in Texas will likely be dismissed in a summary judgment for a fatal lack of causation. Regardless of the liability of the cell phone companies, we here at the Law Blogger urge you not to text while driving; let's keep everyone safe on our roadways.

Post #560

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As statistics, injuries and deaths mount, distracted driving is evolving from minor ordinance violation to misdemeanor and, in some cases, felony status. Hand-held devices and on-board computing, while very useful and powerful these days, distract drivers from their primary task: staying focused on the road at all times.

Operating a cell phone has been prohibited by the Motor Vehicle Code in Michigan since October 2013. The applicable language of the Code provides:

Except as otherwise provided in this section, a person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person's hand or in the person's lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

Statistics now reveal that as many as one in four vehicle accidents are caused by a distracted driver. There are many forms of distracted driving:

• cell phone use of any kind; 
• GPS input on vehicle dash or device;
• tending to the vehicle console in any way, including changing a radio station;
• hands-free interaction with the vehicle console;
• eating;
• reading documents; and
• talking to passengers in a manner that takes your eyes from the road ahead.

Even for those not driving, but texting someone whom they know is driving a vehicle, contributes to this dangerous problem now being addressed by the law. Distracted driving is any activity that takes a driver's full-attention from the road ahead and places it somewhere else.

A case of distracted driving from St. Johns, near Lansing, caught our attention this past summer. A driver, distracted by using her cell phone, struck and killed a bicyclist.

Mitzi Nelson pled to a misdemeanor and the district judge fashioned an interesting sentence: she could not own or possess a cell phone during her two year probation; she did 90-days jail "up front"; and she was obligated to address 20 separate drivers education classes. A very light sentence for causing someone's death.

In Rock County, Minnesota, Chris Weber was driving his truck at night and decided to check his cell phone to see about paying his mortgage. While doing so, he struck and killed a mother of two on a bike; her two daughters were in a carrier attached to the bike.

Unlike Nelson's case here in Michigan, Weber was convicted of vehicular homicide, a felony in Minnesota. He did 120-days in jail; a relatively small price to pay. Now he is assisting the Minnesota State Patrol by making a video with the victim's husband.

For busy mobile folks living in a world of 24/7 connectivity, constant contact has become the standard. What better time to "catch up" or to knock-out that one email task or make that one call than while you are on the road between appointments.

We know all about it over here at the Law Blogger, as we are in 2 or 3 courts each day, driving all over Southeast Michigan on deadlines. Here are a few habits we ask our legal team to develop while on the road:

1. When putting on your seat belt, make a conscious resolution each time that you will not answer your cell phone until you have reached your destination; 
2. To that end, prior to pulling-out from your parking spot, check your phone for any messages, and send any messages that you need to send; 
3. Likewise, make any calls you need to make prior to reaching your next destination; 
4. If possible, leave enough time on both ends of your trip segment to complete the above tasks; 
5. When a call comes in while you are on the road, ignore it because your life, and our lives, are more important.
6. Do not text someone that you know is over the road.

It is the height of arrogance to believe that you are so busy, and that your schedule is so important, that you must tap into your phone, constantly, while on the road. Veteran drivers have been doing this, and getting away with it for years.

Statistics and circumstances, however, will eventually catch-up to such drivers. Just because a driver is busy does not mean the rest of us have to pay the price.

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By: Timothy P. Flynn

A judge in Virginia was recently faced with a decision whether to allow a county prosecutor to compel an accused to produce two things: his cell phone passcode and his fingerprint.  In Virginia vs David Charles Baust, the judge granted the prosecutor's request for Baust to produce his fingerprint, but denied the request for his cell phone encrypted passcode.

The accused deployed technology in his bedroom; he utilized a recorder that sent images of his sex play to his cell phone.  Only, in February, a woman came forward saying that Baust assaulted her and that she believed the incident was recorded.

Jackpot for the prosecutor if they can get their hands on the video; game over for Mr. Baust.  Defense counsel, however, says "not-so-fast"; there are constitutional rights to consider.

Local law enforcement executed a search warrant and seized Baust's cell phone and video recording equipment. The police, however, have been prevented from "entering" Baust's cell phone due to the passcode encryption on the device.

The issue before the Virginia trial court was whether compelling the defendant to produce a piece of incriminating evidence violates his constitutional right against self-incrimination under the 5th Amendment to the United States Constitution; and whether producing the passcode and/or his fingerprint constitutes "testimonial communication".

If his passcode is deemed to be "testimonial communication" then it is protected under the 5th Amendment and Baust cannot be compelled to produce the information.  We've seen this movie before here in Detroit, Michigan: United States vs Kirschner, from the United States District Court for the Eastern District of Michigan.

Like the trial court judge in Virginia, Judge Paul Borman held in Kirschner that compelling an accused to provide a passcode for his encrypted cell phone involved a mental process deemed to constitute "testimonial communication" and was thus protected by the 5th Amendment.

As for the fingerprint, Baust could be forced to produce that all day long; just as he could be forced to submit to a line-up, provide a voice sample, biological sample, or a handwriting exemplar.  These things are not testimonial in nature.

It is a long way from a state trial court to SCOTUS review.  The SCOTUS granted Certiorari in a cell phone data retrieval case from California case last year; presumably, the California case will be argued to the High Court at some point this term.

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By: Timothy P. Flynn

Fresh off the press from yesterday's announced decision: the 4th Amendment warrant requirement means something after all.  In Riley v California, a case we've been tracking here at the Law Blogger, SCOTUS held that without a warrant, the police cannot seize the digital data contained in an arrestee's cell phone.

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  Now SCOTUS has reversed that sentence in a unanimous opinion that injects new life into the 4th Amendment's search and seizure clause.

The traffic stop led to the discovery that Riley's drivers license was suspended.  When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to the discovery of guns in the trunk.

The cops also located Riley's cell phone in the car from which they promptly extracted digital data in its entirety.  Think for a moment about the kind of data that lies buried within your cell phone.

In Riley's case, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Legal scholar Lyle Denniston of SCOTUSblog summarized the High Court decision much better than we ever could:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone  is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

We here at the Law Blogger heartily agree with this unanimous decision.  We walk around with our private lives attached, literally to our hip, or our ear, or our belt.  Cell phones are miniature personal computers, and should be imbued with some modicum of privacy relative to law enforcement.

If the data is needed to prove criminal conduct, then an old fashioned warrant must be secured.  From their landmark graves, our Founding Father's would agree.

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By: Timothy P. Flynn

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  There were, of course, a few steps in between.

As SCOTUS editor Amy Howe puts it in plain English, the case is the Law & Order version of "If You Give A Mouse A Cookie".  The traffic stop led to the discovery that Riley's drivers license was suspended; bummer, arrested.

When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to..., you guessed it....weapons!  Guns in the trunk.

He says: target practice; they say: Gang-related, and attempted murder.  Oh yeah, the cops also located Riley's cell phone in the car.

The cops extract the data from Riley's cell phone which ultimately help them prove their capital charges.  At his trial, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Then there's the sentencing hearing.  Huge sentencing problems in this case; enhancements are all over the place.  Essentially, the sentencing enhancements are a direct result of the weapons and attempted murder convictions which were largely based on Riley's cell phone data.

That's how Mr. Riley caught his case.  It does raise some interesting concerns for the rest of us; hence SCOTUS wisely granting certiorari.

Riley's direct state court appeal was rejected on the basis of a recent California Supreme Court decision holding that the scope of an officer's "search-incident-to-arrest" includes the arrestee's cell phone.  The next step for Riley was to petition the SCOTUS for a writ of certiorari.

We here at the Law Blogger are glad they took the case and will be waiting for this decision; hopefully to be issued as the Court wraps up its term.  The case was only argued in late April, so it's sure to be one of the final decisions released.  

Ms Howe summarized Riley's argument in a recent SCOTUSBlog post:

In his briefs at the Supreme Court, David Riley urges the Court to overturn the decision below.  He warns that a ruling in the state’s favor could sweep broadly, affecting the thousands of people who are arrested every day in the United States — often for offenses as trivial as jaywalking that don’t ever result in convictions.  Allowing police to search smart phones whenever they arrest someone would be a serious invasion of privacy, he says, because so many of us keep so much private information on them.  Indeed, Riley adds, this is exactly the kind of “general search” – looking through people’s homes and offices in the hope of finding evidence of a crime, even if the police didn’t have any real reason to believe that one had been committed – that the Framers of the Constitution were trying to prevent when they drafted the Fourth Amendment. 

Turning to more specific legal arguments against allowing cellphone searches without a warrant, Riley contends that, of the two rationales for allowing searches after someone is arrested, neither justifies the search in his case.  First, although police can search an arrestee for weapons that could be used to harm them, smart phones only contain things like texts, emails, photos, and videos, all of which “are categorically incapable” of being used as weapons.  Second, once police have the smart phone, there is no danger that the arrestee can destroy any evidence that it might contain:  during the time that it takes police to get a warrant, they can prevent someone else from accessing the phone remotely by putting it in a Faraday bag, which is designed to block cellular, WiFi, and other signals from reaching the phone.

If law enforcement can lawfully seize and forensically examine your cell phone pursuant to an arrest for something like, say, spitting on the sidewalk [or any valid arrest, however minor], then they can basically get the meta-data of your life which may or may not lead to counts being added to your felony charging instrument.

Well, it's Big Brother, for sure.  Amazing how vital a cell phone/computer has become to the average citizen.

Just remember, however, that your device can fall into the hands of the government at any moment in time. Nothing to hide, nothing to fear?  Let us see how the SCOTUS views it.

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Our cell phones have been described as the biographer of our daily lives.  If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases.  The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context.  Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier.  The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect's vehicle.  The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also "cloning": having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers.  In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue.  Privacy law is going to be a growing branch of our jurisprudence in the next few decades.

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Unanimously, the 5 members of the National Transportation and Safety Board called for all states to impose a complete ban on texting, emails, and even cell phone use (hand held or hands free) while operating a vehicle.  The NTSB's little-noted but highly significant recommendation came out before the holidays last month in the wake of a series of deadly car crashes involving distracted drivers.

In one of the crashes, a Missouri teenager caused a death accident after texting 11 times in as many minutes.  There seems to be a correlation between youth and distracted driving which is compounded by the youth's relative inexperience on the road.

Now the question is whether the state legislatures have the political will to outlaw what has become ingrained behavior for most driving Americans.  Even if distracted driving is banned, there is also a question of enforcement.

With all the OEMs producing vehicles outfitted with navigation systems and sophisticated communication software built right into the car, state legislatures will soon have lunch dates with automotive industry lobbyists; for sure.  And then there is the cell phone industry; not likely to stand on the sidelines and watch this type of prohibitive legislation develop.

Here is the legislative breakdown so far, with new laws appearing on the books every year: 35 states and the District of Columbia have banned texting while driving; 30 states have banned all cell phone use by a beginning driver; 9 states have banned hand-held cell phone use while in a car.

The NTSB's firm position is simply that use of electronic communication devices is too dangerous to be allowed anywhere in the United States.  When the NTSB announced the recommended ban early last December, it chairwoman, Deborah Hersman, said, "We're not here to win a popularity contest.  No email, no text, no update, no call is worth a human life."

You got that right sister; you sure got that right.  We will be monitoring the state legislation on this topic and will report back to you with significant developments.

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A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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Distracted driving takes lives.  Many adults have experienced that sick feeling of guilt and relief when you realize you've crossed over the center-line because you were checking your cell phone.

For most of us, we swerve back to our lane, hoping for the best and, statistically, you're fine; you continue to your meeting or appointment.  Others, however, are not so lucky.  Many injuries and deaths result as the incidents of distracted driving sweep over our state's roadways.

The cause is the now-ubiquitous cell phone and our seemingly insatiable need to "stay-in-touch" with everyone and everything at all times.  The electronic criminal lawyer posted on this subject last spring, speculating that it would not be long before the law catches up with our irresponsible habits.

The Michigan Senate has already passed the main legislation and Governor Granholm has indicated she plans to sign the legislation immediately into law.

The proposed fines are $100 for a first offense and $200 for a second offense.  The House of Representatives are now working-out how violations will be recorded by the Secretary of State on a driver's master driving record.

Stay tuned and put your cell phones down when you are driving.

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