Richmond Journal of Law and Technology

The first exclusively online law review.

Month: November 2014

Blog: To Execute, or to Exonerate the Actually Innocent – Is That Really the Question?

By: Brooke Kargman, Associate Staff

There have been vast advancements in forensic science largely due to developments in DNA technology.  Many prisoners who have maintained their innocence have accessed DNA evidence ultimately substantiating their claims, which was previously unobtainable.[1]  Inevitably, appeals courts are now confronted with “actual innocence” claims, including writs of certiorari and writs of habeas corpus, from prisoners who have maintained their innocence.[2]  Through the use of DNA technology, more than 300 wrongfully convicted people in the United States have been exonerated.[3]  Included in that sum are 18 people who have served time on death row.[4]

The discussion about the death penalty is an ongoing debate with many different angles.  Discussing the death penalty as a suitable punishment for our future capital offenders is a proactive debate; circulating advocacy for or against punishing potential future capital offenders.  Support for the death penalty has wavered, but is currently the lowest it has been since 1972, at 60%.[5]  Discussions of the death penalty have now emerged into a retroactive aggressive debate.  It has been argued that a person who is “actually innocent” does not necessarily have the constitutional right to be released from death row.[6]

The question becomes: does a convicted felon who has had a full and fair criminal trial have a constitutional right to be liberated of their death sentence when their “actual innocence” claim is supported by new evidence?

Many of our history’s esteemed policymakers have asserted that the Constitution is a “living document” so far as allowing lawmakers to create laws that adapt to society’s progressive ideals and advancements while reserving the rights written in the Constitution’s text.[7]  Former Supreme Court Justice O’Connor has said, “execution of a legally and factually innocent person would be a constitutionally intolerable event.”[8]

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) implemented tighter restrictions on habeas cases and expanded the deference given to federal courts.[9]  The Supreme Court has held that innocence is not enough and that a convicted felon does not have the constitutional right to postconviction DNA testing, even at their own expense, to prove their actual innocence.[10]  In the widely talked about Troy Davis death penalty case, Justice Scalia dissents to Davis’ Petition for Writ of Habeas Corpus and writes, “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.”[11]

By not finding it constitutionally obligatory to exonerate “actually innocent” people from their death sentence, our policymakers are keeping our Constitution stagnant.  The Eighth Amendment of our Constitution prohibits cruel and unusual punishment,[12] and executing an innocent person in the 2000s is seemingly anything but commonsensical or in accordance with the concept of our Constitution as a “living document.”

 

[1] Browse the Profiles, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Nov. 23, 2014).

[2] E.g., Petition for Writ of Certiorari, In re Davis, 557 U.S. ___ (2009) (No. 08-1443).

[3] Mission Statement, INNOCENCEPROJECT.ORG, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Nov. 23, 2014).

[4] Id.

[5] See Jeffrey M. Jones, Americans’ Support for Death Penalty Stable, GALLUP (Oct. 23, 2014), http://www.gallup.com/poll/178790/americans-support-death-penalty-stable.aspx.

[6] See Dahlia Lithwick, Why It’s Constitutional to Execute an Innocent Man, NEWSWEEK, (Sept. 2, 2009, 8:00 PM), http://www.newsweek.com/why-its-constitutional-execute-innocent-man-79487.

[7] See generally Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution”, 76 N.Y.U.L. Rev. 1456, 1457 (2001) (“[C]onstitutional provisions are… interpreted to meet present social needs… Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the ‘earliest efforts’ to adopt a changing, evolving Constitution.”); Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (“[T]he words of the Amendment are not precise… their scope is not static… must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).

[8] David Grann, Trial By Fire, THE NEW YORKER (Sept. 7, 2009) http://www.newyorker.com/magazine/2009/09/07/trial-by-fire.

[9] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

[10] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 36-37 (2009) (No. 08-1443); DA’s Office v. Osborne, 557 U.S. 52 (2009).

[11] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 2 (2009) (No. 08-1443) (Scalia, J., dissenting) available at http://www.supremecourt.gov/opinions/08pdf/08-1443scalia.pdf.

[12] U.S. Const. amend. VIII.

Clapper v. Amnesty International and Data Privacy Litigation: Is a Change to the Law “Certainly Impending”?

The Reasonable Information Security Program

Riley v. California: The New Katz or Chimel?

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Cite as: Adam Lamparello & Charles MacLean, Riley v. California: The New Katz or Chimel?, 21 Rich. J.L. & Tech. 1 (2014), http://jolt.richmond.edu/v21i1/article1.pdf.

Adam Lamparello & Charles MacLean*

“To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”[1]

I.  Introduction

[1]        In Olmstead v. United States,[2] Justice Louis Brandeis dissented from a 5–4 ruling that allowed law enforcement officers to obtain private wiretapped telephone conversations without a warrant and use them as evidence.[3] Justice Brandeis’ words foreshadowed the threats to civil liberties that technology would pose:

The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security?[4]

[2]        Over three-quarters of a century later, privacy is being attacked in a manner that threatens the liberty of every citizen. The Government is tracking the whereabouts of its citizens at any time of the day,[5] recording Internet search history[6] and data stored on a hard drive,[7] and monitoring messages sent by text message or e-mail.[8] As a result, some individuals may unknowingly be on a terror watch list for downloading a video that depicts Al Qaeda sympathizers burning an American flag and threatening an attack larger than September 11, 2001, when hijacked planes toppled New York City’s twin towers and took the lives of over 3000 people.[9] The most frightening aspect is that the Government is doing all of this without a warrant. In some cases, the Government has no suspicion whatsoever.[10] In every case, the Fourth Amendment rights of its citizens are being violated.

[3]        For these and other reasons, Riley v. California,[11] where the Supreme Court unanimously held that warrantless searches of a cell phone incident to arrest were unreasonable and therefore violated the Fourth Amendment,[12] came at the right time. As discussed below, Riley marks a new era of privacy protection that does not yield in the face of the broad, McCarthy-esque justifications of “national security” and the “war on terror.” Instead, the Court recognized that “protection against such invasions of individual security”[13] supports the conclusion that pre-digital era case law could neither foresee nor protect against these invasions.

[4]        The Court’s decision suggests that cellular telephones, particularly smartphones, along with laptop computers and other digital devices, are the twenty-first century’s private ‘homes,’ where individuals store the “papers and affects” traditionally accorded Fourth Amendment protection. The unanswered question, however, is whether Riley is the beginning of a principled, Katz-driven jurisprudence that focuses on privacy protection[14] or a muddled jurisprudence that immerses itself in the many hyper-technicalities that characterized the post-Chimel era.[15] This essay argues that Riley is the new Katz, and marks the beginning of increased protections for privacy in the digital age.

II. The New Katz: Privacy for the Digital Age

[5]        In Riley, the Court held that the original justifications for warrantless searches incident to arrest under Chimel—officer safety and the preservation of evidence—were not implicated in cell phone searches.[16] Writing for a unanimous court,[17] Justice Roberts correctly held that cell phones could not be used as weapons[18] and that the likelihood of evidence destruction was remote.[19] Thus, absent exigent circumstances law enforcement could not search an arrestee’s cell phone without a warrant and probable cause.[20] Several aspects of the Court’s opinion suggested that the Government’s days of relying on case law from an era of rotary telephones, eight-track tapes, and crumpled cigarette packs is over.[21] Specifically, in distinguishing cell phones from physical objects such as plastic containers, wallets, and address books, the Court recognized that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”[22]

A. The Quantity of Information in Cell Phones 

[6]        Justice Roberts’ opinion recognized that cellular phones, particularly smartphones, are not really “phones” in a traditional sense.[23] Justice Roberts wrote:

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.[24]

[7]        Furthermore, cell phones can hold “millions of pages of text, thousands of pictures, or hundreds of videos [and] . . . [e]ven the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, [and] a thousand-entry phone book.”[25]

[8]        Additionally, a cell phone “collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.”[26] As Justice Roberts explained, this information implicates privacy in a manner that physical objects do not:

[A] cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.[27]

Justice Roberts also emphasized the “element of pervasiveness that characterizes cell phones but not physical records, [holding that] . . . [p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.”[28] Comparing cell phones to physical objects was “like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”[29]

B. The Quality of Information in a Cell Phone

[9]        Most importantly, the Court held that cell phones store uniquely private information.[30] For example, “Internet search and browsing history . . . can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”[31] In addition, “application software on a cell phone, or ‘apps,ʼ offer a range of tools for managing detailed information about all aspects of a person’s life.”[32] In fact, quoting Learned Hand, Justice Roberts held that the quantity and quality of private information stored on a cell phone is even greater than that stored in a home:

In 1926, Learned Hand observed . . . that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.[33]

[10]      Furthermore, through the use of cloud computing, some of “the data a user views on many modern cell phones may not in fact be stored on the device itself . . . [due to] the capacity of Internet-connected devices to display data stored on remote servers.”[34]

III. The Significance of Riley and its Application to other Cases

[11]      Riley is a landmark decision and marks the beginning of the end of the Government’s intrusion into the private digital lives of its citizens.

A. Pre-Digital Case Law is Easily Distinguishable and Therefore No Longer Controls

[12]      The Court recognized that pre-digital era case law could not be applied to digital-era problems.[35] First, Justice Roberts found unpersuasive the Government’s reliance on United States v. Robinson, where the Court upheld, under Chimel, the warrantless search of a crumpled up cigarette pack.[36] The Court’s decision in Robinson significantly expanded Chimel by holding that “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”[37] Thus, under Robinson it did not matter whether the original justifications under Chimel—officer safety or evidence preservation—were implicated.[38] The Riley Court rejected the reasoning in Robinson and, although the Court did not directly overturn Robinson’s holding that Chimel’s dual objectives “are present in all custodial arrests,” it found that there “are no comparable risks when the search is of digital data.”[39]

[13]      Additionally, although the Robinson Court “regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself,” the same could not be said in the cell phone context.[40] Indeed, cell phones “place vast quantities of personal information literally in the hands of individuals,” a search of which “bears little resemblance to the type of brief physical search considered in Robinson.”[41] Furthermore, “[t]he possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson.”[42] Put differently, depending on the privacy interests at stake, “[n]ot every search ‘is acceptable solely because a person is in custody.’”[43]

[14]      The Court also rejected the Government’s reliance on Arizona v. Gant,[44] which “added . . . an independent exception for a warrantless search of a vehicle’s passenger compartment ‘when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”’[45] Importantly, however, Gant relied on “circumstances unique to the vehicle context” to endorse a search solely for the purpose of gathering evidence.[46] Relying on Justice Scalia’s concurring opinion in Thornton v. United States,[47] Justice Roberts explained that the unique circumstances in Gant are “ʻa reduced expectation of privacyʼ and ‘heightened law enforcement needs’ when it comes to motor vehicles.”[48] Searches of cell phones, however, “bear neither of those characteristics.”[49]

[15]      Most importantly, Justice Roberts recognized that the standard adopted in Gant “would prove no practical limit at all when it comes to cell phone searches,”[50] stating as follows:

In the vehicle context, Gant generally protects against searches for evidence of past crimes. In the cell phone context, however, it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred. Similarly, in the vehicle context Gant restricts broad searches resulting from minor crimes such as traffic violations. That would not necessarily be true for cell phones. It would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a cell phone. Even an individual pulled over for something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence on the phone that shows whether he was texting while driving. The sources of potential pertinent information are virtually unlimited, so applying the Gant standard to cell phones would in effect give “police officers unbridled discretion to rummage at will among a person’s private effects.”[51]

The Court also rejected the Government’s reliance on Smith v. Maryland,[52] which upheld the use of pen registers to monitor outgoing calls from a suspect’s private residence.[53] In doing so, the Court rejected the Government’s argument that searches can be limited to call logs, as they “typically contain more than just phone numbers; they include any identifying information that an individual might add.”[54] Finally, the Court refused to permit searches of cell phone data “if [law enforcement] could have obtained the same information from a pre-digital counterpart.”[55] In fact, Justice Roberts made it a point to distance the Court from applying pre-digital era case law to digital age technology:

[T]he fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form.[56]

[16]      Indeed, “a significant diminution of privacy” would result if law enforcement could search all areas of a cell phone merely to locate information that could be stored in a pre-digital era physical object.[57] Furthermore, the Government’s argument that law enforcement could “‘develop protocols to address’ concerns raised by cloud computing,” was unpersuasive because “the Founders did not fight a revolution to gain the right to government agency protocols.”[58] They fought to ensure that the Government could not run roughshod over the privacy rights of its citizens—even if its citizens might be safer as a result.

[17]      Ultimately, Justice Roberts’ opinion suggests that the Government will now be required to provide a digital-era justification to search the “papers and effects” that are stored in cell phones.[59] At the heart of Justice Roberts’ opinion was a desire to prevent law enforcement from conducting the types of broad, non-particularized searches, which was “one of the driving forces behind the Revolution itself,” and led the Founders to adopt the Fourth Amendment.[60] Indeed, “the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”[61]

B. Rejecting an Ad Hoc, Case-By-Case Jurisprudence

[18]      In a noticeable departure from its Fourth Amendment jurisprudence, the Court emphasized the importance of creating bright-line rules to govern searches of private cell phone data.[62] Justice Roberts wrote that “if police are to have workable rules, the balancing of the competing interests . . . ‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers.’”[63] Otherwise, the Court would be thrust into an uncertain jurisprudence that would raise more questions than it would answer:

[A]n analogue test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test would “keep defendants and judges guessing for years to come.”[64]

[19]      The Court may have recognized the difficulties that arose in the years after Chimel, where the Court’s ad hoc jurisprudence was often based on hyper-technicalities that resulted in a muddled, uncertain, and unworkable jurisprudence.[65] Indeed, after Robinson,[66] Gant,[67] and New York v. Belton,[68] law enforcement had nearly unfettered authority to conduct warrantless searches incident to arrest, even where officer safety and evidence preservation rationales were non-existent. Simply put, for many years the warrant requirement ceased to exist the moment law enforcement slapped handcuffs on a suspect.

C. Support for an Internet Neutrality Doctrine

[20]      Although it is a Fourth Amendment case, the majority’s reasoning in Riley reflects a fundamental truth: the world has changed, and to protect basic civil liberties, the law must change as well. This is particularly true with respect to the Internet, which is the digital age equivalent of traditional public and limited purpose public forums (e.g., public sidewalks and town halls), just as cellular telephones are similar to a private home for search and seizure purposes.[69] The Internet enables the free flow of information between networks, including speech on matters of political, social, and commercial importance. Importantly, however, through pricing and “traffic shaping,”[70] which involves “slowing down some forms of traffic, like file-sharing, while giving others priority,”[71] Internet service providers have the ability to discriminate against users based on the content of their message, and thus thwart public debate and stifle competition. These practices are the equivalent of allowing the Boy Scouts to march in the public square, while relegating flag burners to desolated areas, remote deserts, or dark alleys.[72] Consequently, the Court should embrace a net neutrality doctrine for the same reason it invalidated warrantless cell phone searches in Riley: technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world.

D. The End of Metadata: Protecting Cell Phones as Objects and Repositories for the Fourth Amendment’s ‘Papers and Effects’

[21]      Riley establishes cell phones as the new repository for the “papers and effects” that the Fourth Amendment protects from warrantless searches.[73] Not only did the Court reject the Government’s analogies to pre-digital era physical objects, such as plastic containers, wallets, and crumpled cigarette packs, but it also held that cell phone data, both in quantity and quality, contains more private information than can be found in a private home.[74] To be sure, “[a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.”[75]

[22]      In so holding, the Court implicitly recognized that cell phones, to an even greater degree than private homes, engender privacy protections as objects, and not merely because of the private data they contain. Thus, just like law enforcement officers cannot enter a home to search for incriminating evidence that might be in plain view inside the home, they cannot search any area of a cell phone, even though some areas, such as a call log, are less private than, for example, Internet browser history.[76] The point of Riley was that cell phones are protected not just for what they contain, but for how they are used in modern society, and for the privacy expectations that millions of individuals have in their phones. Thus, individuals have a reasonable expectation of privacy not merely in a cell phone’s contents, but in the phone itself.[77] This could signal the end to warrantless metadata collection, where the Government used cell phone towers to monitor and collect information such as outgoing calls and physical location. In fact, the Court suggested that this type of information also warrants Fourth Amendment protection, “[d]ata on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”[78]

[23]      For purposes of metadata collection, the message is clear: the Supreme Court is likely to hold that Government will not be permitted to indiscriminately collect metadata unless it has, at the very least, reasonable suspicion.[79]

E. The Third-Party Doctrine May be Invalidated

[24]      The third-party doctrine is also a product of pre-digital era case law, and holds that individuals who knowingly transmit information through a third party can be found to have waived their expectation of privacy in such information.[80] Essentially, because individuals know that a third party may or will view information that is transmitted via a cell phone, they implicitly consent to its disclosure to additional parties. The problem with the third-party doctrine, however, is identical to the problem the Government faced when trying to equate searches of physical containers with searches of cell phone data. The third-party doctrine was developed in an era when the information in question, e.g., a bank record or paper check, did not implicate the same privacy concerns as are present in the cell phone context. As one commentator notes, “the Supreme Court decisions that established the third-party doctrine are decades old,”[81] and cell phones, just as they are not containers or address books, are unlike “information voluntarily conveyed to banks in the ordinary course of business.”[82]

Riley is Katz for the Digital Age

[25]      To the extent that questions remain about the scope and significance of Riley, they can be put to rest by reading three critical passages in the majority opinion that show beyond doubt that Riley is Katz for the digital age. Indeed, courts should not repeat the mistakes that occurred in the post-Chimel era, where courts created an ad hoc, hyper-technical, and muddled jurisprudence that eviscerated Chimel’s limitations and led to expansive searches regardless of concerns about officer safety and evidence preservation.[83] In fact, Riley was the logical result of a jurisprudence that had nearly abandoned the original Chimel justifications, and this time the Court signaled that it will not make the same mistake again.

[26]      First, by holding that there “are no comparable risks [to officer safety and the destruction of evidence] when the search is of digital data,”[84] the Court recognized that digital devices are so fundamentally different from pre-digital era objects that they justified a categorical prohibition against warrantless searches.[85] Second, the Court stated in no uncertain terms that cell phones contain a “broad array of private information never found in a home in any form—unless the phone is,”[86] and a case-by-case, Chimel-type jurisprudence would only threaten to confuse, undermine, and render uncertain the core commitment to protecting privacy.[87] Indeed, phones are not merely a compilation of YouTube videos, Amazon.com purchases, and personal photographs. They house users’ thoughts, private expressions, and most intimate and confidential communications.[88] Third, and in recognition of this fact, the Court refused to fashion an “analogue test [that] would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records.”[89] Instead, the Court understood that, although the Fourth Amendment remains unchanged from its original purpose, the technology era has changed everything else.[90] With those changes came a reaffirmation of that purpose and a commitment to protect core civil liberties.

[27]      Ultimately, the information on a cell phone is so private that the only line to be drawn is precisely where the Court did: “[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”[91] Riley is the new Katz, and soon the Government’s ability to track metadata, record Internet browser history, apply the third-party doctrine to digital data, and peer into other aspects of our private lives will end—just like pre-digital era case law saw its relevance disappear in Riley.

IV. Conclusion

[28]      Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.”[92] In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an e-mail, download a YouTube video, or transmit a text message without knowing that the government might be watching—without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable—and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.

 


 

* Assistant Professors of Law, Indiana Tech Law School.

[1] Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting), overruled by Katz v. United States, 389 U.S. 347, 353 (1967).

[2] Olmstead, 277 U.S. 438.

[3] See id. at 466.

[4] Id. at 474.

[5] See, e.g., Klayman v. Obama, 957 F. Supp. 2d 1, 7 (D.D.C. 2013) (describing the information involved in metadata collection).

[6] See Glen Greenwald, XKeyscore: NSA tool collection ‘nearly everything a user does on the internet,The Guardian (July 31, 2013, 8:56 AM), http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data, archived at http://perma.cc/Y847-C3Q7.

[7] See Jason Mick, Tax and Spy: How the NSA Can Hack Any American, Stores Data 15 Years, Daily Tech (Dec. 31, 2013, 12:36 PM), http://www.dailytech.com/Former+FBI+Agent+All+Your+Communications+are+Recorded+Government+Accessible/article31486.htm, archived at http://perma.cc/ZWZ4-STDD.

[8] See Adam Weinstein, The Government’s Phone, Text, and Email Spying, Explained, Fusion (Oct. 25, 2013, 6:00 PM), http://fusion.net/abc_univision/story/governments-phone-text-email-spying-explained-22515, archived at http://perma.cc/VCC2-CPHP.

[9] See Jeremy Scahill & Ryan Devereaux, The Secret Government Rulebook for Labeling You a Terrorist, The Intercept (July 23, 2014, 2:45 PM), https://firstlook.org/theintercept/2014/0/23/blacklisted/, archived at http://perma.cc/4FPY-A344; see also Watchlisting Guidance, U.S. Nat’l Counterterrorism Center (Mar. 2013) (detailing government qualifications for putting people on a terrorist watchlist).

[10] See Scahill & Devereaux, supra note 9.

[11] Riley v. California, 134 S. Ct. 2473 (2014).

[12] See id. at 2493.

[13] Olmstead, 277 U.S. at 473–74.

[14] See Katz v. United States, 389 U.S. 347, 350-51 (1967) (focusing on an individual’s right to be left alone rather than determining what geographic areas are constitutionally protected).

[15] See Chimel v. California, 395 U.S. 752, 762–63 (1967); see also Arizona v. Gant, 556 U.S. 332, 342 (2009 ); New York v. Belton; and United States v. Robinson, 414 U.S. 218, 235 (1973) (highlighting the hyper-technicalities that characterized this post Chimel world). In Chimel, the Court created the search-incident-to-arrest doctrine, which allows warrantless searches of an arrestee’s person to protect officer safety and preserve evidence:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Chimel, at 762-63.

In the years following Chimel, the Court expanded Chimel to allow virtually all warrantless searches incident to arrest, even if safety and evidence preservation were not implicated. See, e.g., Belton, 453 U.S. at 460 (1981) (expanding Chimel to hold that law enforcement officers may search the passenger compartment of an arrestee’s vehicle).

[16] See Riley, 134 S. Ct. at 2484–85.

[17] Id. at 2480.

[18] See id. at 2485.

[19] See id. at 2486–87.

[20] See id. at 2493.

[21] See Riley 134 S. Ct. at 2485, 2488–89.

[22] Id. at 2489.

[23] See id.

[24] Id.

[25] Id.

[26] Riley, 134 S. Ct. at 2489.

[27] Id.

[28] Id. at 2490 (“It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.”).

[29] Id. at 2488.

[30] Id. at 2473.

[31] Riley, 134 S. Ct. at 2490.

[32] Id.

[33] Id. at 2490–91 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)).

[34] Id. at 2491.

[35] See Riley, 134 S. Ct. at 2484, 2494.

[36] See United States v. Robinson, 414 U.S. 218, 225–26 (1973).

[37] Id. at 235.

[38] See id. at 235.

[39] Riley, 134 at 2484–85.

[40] Id.

[41] Id. at 2485.

[42] Id.at 2491.

[43] Id. at 2488 (quoting Maryland v. King 133 S. Ct. 1958, 1979 (2013)).

[44] See id. at 2492.

[45] Riley, 134 S. Ct. at 2484 (quoting Arizona v. Gant, 556 U.S. 332, 343 (2009)).

[46] Gant, 556 U.S. at 343.

[47] Thornton v. United States, 541 U.S. 615, 628–32 (2004) (Scalia, J., concurring).

[48] Riley, 134 S. Ct. at 2492 (quoting Thornton, 541 U.S. at 631).

[49] Id. at 2492.

[50] Id.

[51] Id. (quoting Gant, 556 U.S. at 345).

[52] See id., 134 S. Ct. at 2492–93.

[53] See Smith v. Maryland, 442 U.S. 735 at 745–46 (1979).

[54] Riley, 134 S. Ct. at 2492–93.

[55] Id. at 2493.

[56] Id.

[57] Id.

[58] Id. at 2491.

[59] Id. at 2493.

[60] Riley, 134 S. Ct. at 2494.

[61] Id.

[62] See id. at 2491–92.

[63] Id. at 2491–92 (quoting Michigan v. Summers, 452 U.S. 692, 705 n.19 (1981)).

[64] Riley, 134 S. Ct. at 2493 (quoting Sykes v. United States, 131 S. Ct. 2267, 2287 (2011) (Scalia, J., dissenting)).

[65] See Arizona v. Gant, 556 U.S. 332, 345–47 (2009).

[66] United States v. Robinson, 414 U.S. 218, 235 (1973) (holding a custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment and requires no additional justification to conduct a search incident to arrest).

[67] Gant, 556 U.S. at 342 (expanding Chimel to allow warrantless searches of vehicles when the passenger is unsecured and within reaching distance of the vehicle, and when there is reason to believe evidence relevant to the crime of arrest may be found within).

[68] New York v. Belton, 453 U.S. 454, 459 (1981) (holding that upon arrest, law enforcement may search a vehicle’s passenger compartment).

[69] See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“A traditional public forum is property that by long tradition or by government that have been devoted to assembly and debate”).

[70] Christopher R. Steffe, Why We Need Net Neutrality Now Or: How I Learned to Stop Worrying and Start Trusting the FCC, 58 Drake L. Rev. 1149, 1158 (2010).

[71] Id.

[72] See Texas v. Johnson, 491 U.S. 397 (1989) (invalidating a statute prohibiting desecration of the American flag).

[73] See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”); see also Riley, 134 S. Ct. at 2491.

[74] See Riley, 134 S. Ct. at 2490–91.

[75] Id. at 2491.

[76] See id. at 2489.

[77] Id. at 2494–95 (“Our answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simply get a warrant.”).

[78] Id. at 2490 (citing United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”)).

[79] See, e.g., Terry v. Ohio, 392 U.S. 1, 21 (1968) (establishing the reasonable suspicion standard, which requires law enforcement, “to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”).

[80] See United States v. Miller, 425 U.S. 435, 442–43 (1976).

[81] Jeremy H. Rothstein, Note, Track Me Maybe: The Fourth Amendment and the Use of Cell Phone Tracking to Facilitate Arrest, 81 Fordham L. Rev. 489, 506 (2012).

[82] Id. at 506–07 (discussing United States v. Miller, 425 U.S. 435, 442-43 (1976)).

[83] See generally Arizona v. Gant, 556 U.S. 332, 342 (2009 ) (expanding Chimel to allow warrantless searches of vehicles when the passenger is unsecured and within reaching a distance of the vehicle, and when there is reason to believe evidence relevant to the crime of arrest may be found within); New York v. Belton, 453 U.S. 454, 459 (1981) (holding that upon arrest, law enforcement may search a vehicle’s passenger compartment); and United States v. Robinson, 414 U.S. 218, 235 (1973) (holding a custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment and requires no additional justification to conduct a search incident to arrest).

[84]Riley, 134 S. Ct. at 2485.

[85] See id. at 2493.

[86] Id. at 2490–91 (emphasis added).

[87] See id. at 2484–85.

[88] See id. at 2490.

[89] Riley, 134 S. Ct. at 2493.

[90] See id. at 2490–91.

[91] Id. at 2495.

[92] Olmstead, 277 U.S. at 474 (Brandeis, J., dissenting).

Blog: Personal Data Security and the “BYOD” Problem: Who is Truly at Risk?

By: Jill Smaniotto, Associate Manuscripts Editor

“Bring your own device” policies are undeniably on the rise in the realm of business IT.  According a recent survey, roughly two-fifths of U.S. consumers working for large enterprises use their personally-owned devices—i.e. smartphones, tablets, or desktops—for at least some aspect of their work.[1]  Generally, concern surrounding the practice of BYOD has been in regard to the risk to misappropriation of corporate data (i.e., that of the employer’s customers).  However, a recent case has shed light on another area for concern: the risk to employee data when the employer/employee relationship sours.

“Bring your own device” or “BYOD” is a phrase that has become widely adopted to refer to the practice of employees bringing their own personal computing devices to the workplace for use on the corporate network.[2]  In recent years, a shift in IT culture has taken place: the consumerization of IT.[3]  Essentially, there has been a shift from a IT-department-driven culture to one in which consumers are getting the newest, latest technologies ahead of their corporate counterparts.[4]  In turn, these consumers are finding their own personal devices are better suited for their work than those provided by employers.[5]

This use of personal devices to handle corporate data on secure corporate networks is occurring regardless of whether employees have employer consent to do so.[6]  In fact, a survey conducted by ZDNet indicated that only one-quarter of all enterprise employees surveyed are required by employers to bring their own device, suggesting that the remaining three-quarters were doing so without their employer’s consent.[7]  This raises several concerns for data security, as corporate entities are generally not in control of the data accessed via personal devices where employees are using personal devices without the consent of the employer.

Similarly, small and midsized business are embracing the use of BYOD policies at a rapid pace, while failing to address security risks at the same pace.[8]  The cost-saving benefits of operating under BYOD policies is also to blame for the lack of security solutions in place in small, low-capital companies.[9]

Despite the risks, software companies are beginning to encourage the adoption of BYOD policies by offering services to put in place security solutions.[10]  By employing one of these “solutions,” companies can set safeguards for their customers’ data, while allowing the company and the employees to reap the benefits of BYOD.  For example, IBM emphasizes that BYOD increases employee productivity and satisfaction as employees are more comfortable with their own devices.[11]  Additionally, BYOD programs may result in minimal savings for the company, as it shifts the cost to the employee/user.[12]

While the focus is primarily on the risk to company/consumer data, there has been little addressing the risk BYOD poses for the employee/user’s data.  Last week, the U.S. District Court for the Southern District of Texas decided a case addressing that very risk.[13]  In Rajaee v. Design Tech Homes, Ltd., plaintiff Saman Rajaee asserted a claim for loss under Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030.[14]  Rajaee was formerly employed by the defendant, Design Tech Homes, in a position that required he have constant access to email in order to address customer questions and concerns.[15]  Design Tech did not provide Rajaee with a cell phone or smart device.[16]  Instead, Rajaee used his own personal iPhone to conduct his work for Design Tech via a remote access connection to Design Tech’s Microsoft Exchange Server.[17]  Roughly one year after he began working for Design Tech, Rajaee notified Design Tech that he would be resigning in two weeks, and Design Tech immediately terminated Rajaee’s employment.  Shortly thereafter, Design Tech’s network administrator remotely wiped Rajaee’s iPhone, deleting all work-related and personal data.[18]

Rajaee filed suit against Design Tech under the CFAA, alleging that company’s indiscriminate wiping of his iPhone caused him to lose “more than 600 business contacts collected during the course of his career, family contacts (many of which were overseas and some related to family business), family photos, business records, irreplaceable business and personal photos and videos and numerous passwords.”[19]

Under the CFAA, “loss” is defined as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”[20]

Here, the Court held that while Rajaee did assert losses as a result of the defendant’s actions, he did not assert cognizable loss under the CFAA. The Court notes that Rajaee’s assertions of monetary values corresponding to his “losses” are not supported by any evidence, and he failed to produce any evidence relating to his response to the data’s deletion or damages suffered as the result of an “interruption of service.”[21]  Accordingly, the Court granted Design Tech’s motion for summary judgment and dismissed Rajaee’s claim under the CFAA.[22]

The Court’s ruling in Rajaee is troubling in that at this stage, it appears as though there is little recourse for employees who suffer due to their employers’ choices to implement BYOD policies.  Where individuals run the risk of losing personal photographs, messages, and contact information, that risk is further exacerbated by the very nature of such personal data, making it nearly impossible to quantify loss.  It seems as though participation in BYOD programs by employers is on a track to become relatively low-risk, while all of the risk rests with the employee/user, who may be completely beholden to the whims of the employer.

 

[1] Zack Whittaker, Bring-Your-Own-Device Gains Traction in the U.S. – Even if Enterprises Aren’t Ready Yet, ZDNet (Oct. 21, 2014), http://www.zdnet.com/bring-your-own-device-gains-traction-in-the-u-s-even-if-enterprises-arent-ready-yet-7000034925/.

[2] Vangie Beal, What is Bring Your Own Device (BYOD)?, Webopedia (last visited Nov. 16, 2014), http://www.webopedia.com/TERM/B/BYOD.html.

[3] Tony Bradley, Pros and Cons of Bringing Your Own Device to Work, PCWorld (Dec. 20, 2011, 10:42 PM), http://www.pcworld.com/article/246760/pros_and_cons_of_byod_bring_your_own_device_.html.

 [4] Id.

[5] See Whittaker, supra note 1.

[6] Id.

[7] Id

[8] Pedro Hernandez, Small Biz Mobile Security Lags Behind BYOD Adoption, SmallBusinessComputing.com (Nov. 13, 2014), http://www.smallbusinesscomputing.com/News/Security/small-biz-mobile-security-lags-behind-byod-adoption.html.

[9] Id.

[10] See BYOD: Bring Your Own Device: Why and How You Should Adopt BYOD, IBM (last visited Nov. 16, 2014), http://www.ibm.com/mobilefirst/us/en/bring-your-own-device/byod.html; BYOD – Bring Your Own Device, MobileIron (last visited Nov. 16, 2014), https://www.mobileiron.com/en/solutions/byod; BYOD Smart Solution, Cisco (last visited Nov. 16, 2014), http://www.cisco.com/web/solutions/trends/byod_smart_solution/index.html.

[11] IBM, supra note 10.

[12] Id. 

[13] BYOD-Covered Employee Cannot Prove CFAA Loss After Company Remotely Wiped Phone, 19 Electronic Com. & L. Rep. Online (BNA) (Nov. 13, 2014).

[14] Rajaee v. Design Tech Homes, Ltd., No. H-13-2517, 2014 U.S. Dist. LEXIS 159180, at *3 (S.D. Tex. Nov. 11, 2014).

[15] Id. at *1.

[16] Id. at * 1-2.

[17] Id. at *2.

[18] Id. at *3.

[19] Rajaee, 2014 U.S. Dist. LEXIS 159180, at *3.

[20] Id. at *8-9 (citing 18 U.S.C. § 1030(e)(11)).

[21] Id. at *9-10.

[22] Id. at *11-12.

Blog: Step Into Shaolin and See Where the Wu-Tang Clan Could be Taking Music

By: Josh Lepchitz, Associate Staff

Music streaming programs have drastically changed how it is consumers listen to music. In the United States music sales are 5% and a major contributing factor to the drop in revenue is services like Spotify, Pandora, and YouTube. [1]  This drop in sales has proven not only to be discouraging to major record labels that depend on the sale of cd’s and digital downloads, but it has also received some back lash from popular recording artist.  Artists such as Taylor Swift, David Byrne of the Talking Heads, Dan Auerbach of the Black Keys, Beck, and Thom Yorke of Radiohead have spoken out against the public receiving their music from services like Spotify.[2]  The primary arguments held by these musicians is that they should have a say in how their art is to be distributed to the public, and that these services provide horrible royalties.  The royalties received from Spotify range between $0.006 to $0.0084 cents per stream.[3]  For the major recording artists this is the opposite of what they are used to receiving in royalties.

To combat the increased exposure and decreased royalties artists have come up with various strategies.  Some simply do not allow their music to be accessed on these programs.[4]  Others have become very litigious. For example, Flo and Eddie Inc. represent members of the 1960’s band the Turtles, and they recently won a multimillion-dollar suit against Sirius XM Radio Inc. for the use of some of their copyrighted material and have now placed their sights on Pandora.[5] However, one artist in particular has taken an alternative approach that could be potentially revolutionary in music consumption.  I am speaking of the legendary New York City based hip-hop group the Wu-Tang Clan.  Either as a collective ensemble or as individual artists the Wu-Tang has made an undeniable and lasting impression on music and now they have the potential to change how major recording artists reach the public with their music.

The Wu-Tang have secretly recorded and produced an album that they are calling their opus titled “Once Upon a Time in Shaolin”. Here is where things become interesting, the Wu own the sole rights to the album and there is only one copy of it in existence.   The album will be auctioned off and the expected sale price is in the millions of dollars.[6]  The multiple of reasons behind the unique release include that the group wants to see a revival of music being seen as art and shift the medium closer to the realm of visual works like painting and photography.[7]  The Wu-Tang will receive the proceeds from the auction sale and the sole copy of the album, along with its rights will go to the purchaser.

What this means is after the sale the Wu-Tang is finished with the album and the purchaser can do with it whatever they chose.  Using this model the musicians will receive their payday, and the purchaser can turn around and do whatever with the piece of art.  The buyer could sell and distribute the album, post it online for free or limited purchase download, take the album on tour as the Wu-Tang has in order to give potential buyers a preview, or the buyer could destroy it.

A man from Virginia, Chris Everhart, initiated what ended up being an unsuccessful crowd funding campaign on Kickstarter.com.[8]  He failed to reach his lofty goal of six million dollars in order to purchase and destroy the album.  He sees the project as “self-righteous” and believes that art should be shared with the entire world and not be excluded from the culturally disadvantaged.[9]  His goal was not met but his point does have some potency.  There is the consideration that art is for the public good and the people should have access to it.  Now this is simply one man’s failed goal, but what happens with the music will depend entirely upon who purchases it.

“Once Upon a Time In Shaolin” could be purchased by a record label and distributed normally as any other album, it could go to an eccentric millionaire and be locked away for his own personal use, or it could go to a museum and be placed on display for the public like the Mona Lisa.  An interesting question is what happens if an entity like Spotify purchases the album and requires monthly payments to access their exclusive content.  It would be a possible way for a company like Spotify to alter its business model.  They could go from being a company who receives the majority of its profits from advertisers to a company who relies mostly on subscribers interested in original and exclusive content like Netflix or HBO.

The outcome of what happens with the Wu-Tang’s special release is yet to be seen. All theories are purely speculative, but it has accomplished another one of the Wu-Tang’s goals, to spark discussion.[10]  So far in 2014, only one artist has produced a platinum album, which was last month’s release of 1989 by Taylor Swift. Outside of Taylor Swift the only other platinum album is the soundtrack from Disney’s Frozen.[11]  Before the release of 1989, 2014 was the first year that no platinum albums had been awarded to a non-compilation record since 1976, the first year that Recording Industry Association of America (RIAA) began handing out platinum albums.   Music streaming services are here to stay, as far as anyone can tell, and a shift in the landscape of the music industry is inevitable.  What the Wu-Tang accomplished is an expansion on their legacy.  Not only are they going to be known for their accomplishments as artists, but also they could be known for their impact on the music industry as market innovators.

To get a sneak peak of “Once Upon a Time In Shaolin” and some commentary from its producer check out the following link: https://www.youtube.com/watch?v=ABL5Elr16hc.

 

 

[1] Ben Sisario, U.S. Music Sales Drop 5%, as Habits Shift Online, N.Y. Times, Sept. 26, 2014, at B3.

[2] Jillian Mapes, Musicians Drinking the Spotify Haterade: The Collected Complaints, (Aug. 12, 2014, 9:45 AM), http://flavorwire.com/471802/musicians-drinking-the-spotify-haterade-the-collected-complaints, Stuard Dredge, Rdio on Taylor Swift’s Spotify block: ‘This is art. It’s the artist’s choice’, (Nov. 10, 2014, 7:09 AM), http://www.theguardian.com/technology/2014/nov/10/rdio-spotify-taylor-swift-streaming.

[3] Jillian Mapes, Musicians Drinking the Spotify Haterade: The Collected Complaints, (Aug. 12, 2014, 9:45 AM), http://flavorwire.com/471802/musicians-drinking-the-spotify-haterade-the-collected-complaints.

[4] Stuard Dredge, Rdio on Taylor Swift’s Spotify block: ‘This is art. It’s the artist’s choice’, (Nov. 10, 2014, 7:09 AM), http://www.theguardian.com/technology/2014/nov/10/rdio-spotify-taylor-swift-streaming.

[5] Flo & Eddie Inc. v. Sirius XM Radio Inc., et al., No. CV 13-5693 PSG (RZx), 2014 WL 4725382, (C.D. Cal. Sept. 22, 2014). Eriq Gardner, After SiriusXM Success, The Turtles take on Pandora in $25 Million Lawsuit (Exclusive), (Oct. 2, 2014, 1:18 PM), http://www.hollywoodreporter.com/thr-esq/siriusxm-success-turtles-take-pandora-737673.

[6] Zack Greenburg, Why Wu-Tang Will Release Just One Copy Of Its Secret Album, Forbes (March 26, 2014, 12:00 PM), http://www.forbes.com/sites/zackomalleygreenburg/2014/03/26/why-wu-tang-will-release-just-one-copy-of-its-secret-album/.

[7] Id.

[8] https://www.kickstarter.com/projects/510343979/destroy-only-copy-of-new-wu-tang-album (last visited Nov. 10 2014).

[9] Id.

[10] Zack Greenburg, Unlocking The Wu-Tang Clan’s Secret Album in Morocco, Forbes (May 6, 2014, 11:03 AM), http://www.forbes.com/sites/zackomalleygreenburg/2014/05/06/unlocking-the-wu-tang-clans-secret-album-in-morocco/.

[11] Cliff Lee, Congratulations, Taylor Swift: You’ll be the only platinum artist of 2014, The Globe and Mail (Oct. 21 2014, 9:36 AM), http://www.theglobeandmail.com/arts/music/congratulations-taylor-swift-youll-be-the-only-platinum-artist-of-2014/article21180284/.

Blog: Smart Guns and Their Constitutional Concerns

By: Jill Smaniotto, Associate Manuscript Editor

Following the shooting death of eighteen year-old Michael Brown by a police officer in Ferguson, Missouri this past summer, the issue of accountability for police firearm use has been at the forefront of public discourse.[1]  A firearms technology startup in Capitola, California known as Yardarm Technologies recently announced that it has developed a product that may provide the real-time information necessary to maintain greater oversight of the use of police force.[2]

While so-called “smart gun” technology has existed for quite some time, technological advances, coupled with the growing concern over mass shootings and police abuse of force, have prompted further development of the technology.[3]  Yardarm’s new product is a two-inch piece of hardware equipped with an accelerometer and a magnetometer that officers snap into the grip of their firearms.[4]

The sensor records information about when, where, and how police officers use their firearms,[5] providing dispatchers with real-time data.[6]  Currently, the technology requires the officer to carry a smartphone; as the device transmits the data by sending a signal to the phone, which then sends the information to Yardarm’s servers for secure storage.[7]  The Yardarm sensor has capabilities to track the gun’s location, whether the gun is in its holster, when new magazines are inserted, and when it is fired.[8]  Yardarm also intends to develop the product further so that it may be able to tell in which direction the gun is fired.[9]  The technology does not feature a remote disabling mechanism.[10]

Initially, Yardarm intended to sell the device on the consumer firearm market.[11]  Early plans for the device focused on tracking in the event of theft or misplacement of the individual’s firearm and remote locking, but the potential political sensitivities of entering the consumer firearm market proved too great a challenge to the ten-employee startup.[12]  Yardarm then decided to switch its focus to law enforcement agencies, which were already showing interest in the burgeoning technology.[13]  The Santa Cruz Sheriff’s Department and Carollton (Texas) Police Department have begun equipping officers’ weapons with the sensors on a trial basis.[14]

            Discussion surrounding the announcement of this new technology has been divisive. Proponents of technology like Yardarm’s new sensor cite the potential benefits to officer safety in the field, as well as the hope for a pool of objective data that may be used to investigate incidents of alleged police brutality.[15]  Law enforcement agencies are hopeful that this technology will help to solve a problem that is “the worst nightmare for any officer in the field”: deputies in trouble and unable to ask for additional assistance.[16]  Additionally, those in favor of the technology expect that the sensors, like dashboard cameras, will provide objective records of incidents when officers used firearms.[17]  This information may run on a two-way street, though, as it could be used “to exonerate an officer accused of misconduct, or to prosecute a criminal in a court of law.”[18]

            Detractors, however, are not comfortable with the potential implications of widespread use of technology.  Guns rights advocates, such as the National Rifle Association (“NRA”) are wary of the impact of smart guns on Second Amendment rights.[19]  Specifically, the NRA has voiced concern that the proliferation of these sensors may open the door to government regulations requiring this technology on personal firearms.[20]  The American Civil Liberties Union (“ACLU”) expressed concern that the sensors may present an invasion of privacy, but tempered that concern by also admitting that such invasion may be a necessary evil in order to attain some much needed transparency into police behavior.[21]

            While this technology is certainly new, the supposed ease of integration[22] and the volatile state of affairs surrounding police use of firearms may combine to create the spark necessary to ignite the widespread employ of such sensors sooner rather than later.  As Yardarm has made clear its intention to solely market the product to law enforcement and military,[23] detractors of the technology may find their criticisms lacking much weight as compared to the vast public safety benefits in the inevitable debate as to what place smart guns may have in our society.

 

[1] Hunter Stuart, Company Makes Gun Tech That Could Help Prevent Police Brutality, The Huffington Post (Oct. 24, 2014, 11:02 AM), http://www.huffingtonpost.com/2014/10/24/police-gun-tracking_n_6040930.html.

[2] Id.

[3] Haven Daley, California Startup Unveils Gun Technology for Cops, Aol.com (Oct. 24, 2014, 6:57 AM), http://www.aol.com/article/2014/10/24/california-startup-unveils-gun-technology-for-cops/20983460/; David Kravets, Silicon Valley Startup Unveils Internet-Connected Smart Guns for Cops, Ars Technica (Oct. 24, 2014, 12:30 PM), http://arstechnica.com/tech-policy/2014/10/silicon-valley-startup-unveils-internet-connected-smart-guns-for-cops/.

[4] Aaron Tilley, Internet-Connected Guns Are the Next Step for Data-Hungry Police, Forbes (Oct. 24, 2014, 10:00 AM), http://www.forbes.com/sites/aarontilley/2014/10/24/yardarm-sensor-gun/; Stuart, supra note 1.

[5] Stuart, supra note 1.

[6] Kravets, supra note 3.

[7] Stuart, supra note 1.

[8] Tilley, supra note 4.

[9] Id.

[10] Daley, supra note 3.

[11] Tilley, supra note 4.

[12] Id.; Kravets, supra note 3.

[13] Tilley, supra note 4.

[14] Daley, supra note 3; Kravets, supra note 3; Stuart, supra note 1; Tilley, supra note 4.

[15] Daley, supra note 3; Stuart, supra note 1.

[16] Daley, supra note 3. See also Stuart, supra note 1 (“[T]he technology can be also used to keep police officers safer. When an officer draws his weapon, for example, the gun will send an alert to the police command center and to nearby officers, alerting them to a potentially dangerous situation.”).

[17] Stuart, supra note 1.

[18] Id.

[19] Krave
ts, supra note 3.

[20] Id. See also Daley, supra note 3 (noting that Gun Owners of California spoke to concern of future government mandated use of the technology on personal firearms).

[21] Tilley, supra note 4.

[22] See Tilley, supra note 4 (noting that Yardarm is designing its software to easily fit into existing dispatcher software); Daley, supra note 3 (indicating that the device can fit into the handle of most police guns and relies on Bluetooth technology for data transmission).

[23] Tilley, supra note 4.

Blog: E-Commerce and Taxation: Internet Tax Freedom does not Mean Tax Freedom for the Internet

By: Andrew Landrum, Associate Technical Editor

The global advent of interconnectivity has led to breakthroughs in communication, innovation, scientific collaboration, and, most importantly, how to spend money in the comfort of your pajamas.  Online shopping has become the way of the future.  No more will store hours, location, or Netflix conflict with the impulse to buy.  Indeed, this past August, the United States Department of Commerce has reported a steady growth of E-Commerce, as it now comprises an adjusted total of almost 7% of all total retail sales.[1]  For just the second quarter of 2014, the United States E-Commerce sales totaled $75.0 billion.[2]  The problem, however, is that these sales run zero-sum with brick-and-mortar companies.[3]

Brick-and-mortar companies are those businesses that maintain a physical presence in a state.  Their presence supports the local economy, provides jobs, and offers face-to-face customer experiences.  However, it also succumbs them to state and local regulations, like sales taxes.  These sales taxes support state and local governments but also constitute extra burdens on local consumers.[4]  These burdens, however beneficial, are pushing consumers online.[5]

States have attempted to react by passing Internet sales taxes.[6]  These taxes are meant to level the playing field between brick-and-mortar companies and E-Commerce industries.[7]  However, these measures have not gone without resistance.  Policymakers have also been weary of unfair taxation and thus passed the Internet Tax Freedom Act, meant to protect, “unfettered access to one of the most unique gateways to knowledge and engines of self-improvement in all of human history.”[8]  This legislation has served as a springboard for litigation. Online companies argue Internet sales taxes implicate Internet tax freedom and discriminate against out-of-state companies solely because of the nature of their business.

The Internet Tax Freedom Act was passed in 1988 and will likely be extended indefinitely by the end of this year.  The text of the act clearly prohibits two things: (1) taxes on internet access; and (2) multiple of discriminatory taxes on electronic commerce.[9]  Clearly the first prohibition on internet access has no relevance to online sales tax litigation.  The real issue falls on what is defined as a “discriminatory tax” on E-Commerce.  There has been much debate among online service providers, and state and local governments as to what constitutes a discriminating tax.  These businesses hold that taxing a service or good merely because the transaction occurs online should constitute discrimination and runs in the face of the Internet Tax Freedom Act.[10]  However, as explained by the 7th Circuit, the misleading name does not ensure “tax freedom” but only freedom from unfair taxation.[11]

According to the relevant provisions of the Act itself, discriminatory E-Commerce taxes are those taxes that: (1) are not imposed on the same or similar property, goods, services, or information accomplished through other means; (2) are imposed at a higher rate than those goods, services, or information accomplished through other means; (3) imposes an obligation to collect or pay the tax on a different entity than would otherwise be normally taxed; or (4) the taxes are imposed on an internet access service provider merely because the provider displays the resellers information or processes the orders through an out-of-state computer server.[12]

Accounting for the first three sections, courts have allowed E-Commerce tax statutes for purposes of levelling the playing field between online industries and companies physically present.[13]  E-Commerce taxes that run at a similar rate as those imposed on brick-and-mortar companies have not been found to qualify as “discriminatory” under the Internet Tax Freedom Act.[14]  This statute, despite its name, does not create “tax freedom” per se but instead merely prohibits disadvantaging one type of retailer over another.[15]

The fourth provision has created litigation between cities and states, and online auction and solicitation websites such as Ebay, Craigslist, or Stubhub!.[16]  Courts have drawn a line between these service providers and have declared that if an intermediary takes an active role in, “staging an auction and exchanging goods for money” they have so involved themselves in the transaction that state imposed taxation on the providers service is not discriminatory.[17]  Those that play an active role act as an agent of the reseller and can be taxed accordingly, whereas passive websites that merely list the offer and the offeror’s information cannot.[18]

The availability of online services has blurred the commercial lines, making comparisons between internet companies and brick-and-mortar businesses difficult.  States are, however, allowed to tax each type of company similarly, assuming their services provided are comparable and the tax imposed is equitable.  In an increasingly diverse market, all states can do it ensure all companies have a fair shot at competing for your business.

 

[1] U.S. Census Bureau, Quarterly Retail E-Commerce Sales, U.S. Department of Commerce (Aug. 15, 2014, 10:00 AM) available at, http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf.

[2] Id.

[3] Grant Gross, U.S. residents oppose Internet sales tax, say they’ll shop online less, Computer World (May 13, 2013 5:43 PM), http://www.computerworld.com/article/2497336/e-commerce/u-s–residents-oppose-internet-sales-tax–say-they-ll-shop-online-less.html; See, U.S. Census Bureau, supra at note 1 (displaying an increase of E-Commerce makes up an increasingly large amount of overall retail transactions).

[4] U.S. Census Bureau, Quarterly Summary of State and Local Government Tax Revenue for 2014:Q2, p.2, Sept. 23, 2014, available at http://www2.census.gov/govs/qtax/2014/q2infosheet.pdf (sales tax totaled $89.5 billion in Q2 of 2014).

[5] See, U.S. Census Bureau, supra at note 1.

[6] Kate Tummarello and Bernie Becker, Senators renew Internet sales tax push, the Hill (July 16, 2014, 6:00 AM), available at http://thehill.com/policy/finance/212385-senators-renew-internet-sales-tax-push.

[7] Id.

[8] PERMANENT INTERNET TAX FREEDOM ACT, 160 Cong Rec H 6228.

[9] Interstate Tax Freedom Act, § 1101(a)(1), (2), 47 U.S.C. § 151 note.

[10] Id.

[11] Id.

[12] Interstate Tax Freedom Act, § 1105(2); 47 U.S.C. § 151 note.                     

[13] StubHub!, Inc., 624 F.3d at 366.

[14] Id.

[15] Id., at 365;Travelocity.com, LP v. Wyo. De
p’t of Revenue
, 2014 WY 43, 103 (Wyo.2014) (Noting that policies that do not single out individual consumers and generally apply to all willing to engage in taxed commercial practices are not discriminatory).

[16] Stubhub!, Inc., 624 F.3d at 366.

[17] Id. At 366-67 (“Because the ordinance applies equally to ticket resales at physical auction houses, the Chicago Board of Trade, and venues such as StubHub!, the tax is not “discriminatory”).

[18] Id.

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