Hi Tech Obligations The Tug-Of-War Between The Constitution And Law Enforcement

Author–Ronald J. Hedges

Introduction. This title expresses a conundrum that we face in the United States: We cherish the rights guaranteed by the Constitution, specifically, the Bill of Rights. At the same time, we recognize that criminal activity can be organized and facilitated through electronic communications. How do we balance these rights with the needs of law enforcement at the federal and State levels to protect us?

“Hi Tech Obligations in Defense of the US: Part 1 Corporate Communications” (posted Jan. 12, 2016), placed the need for “balance” in the context of terrorism. But step back from that hot button topic and think about “mundane” criminal activity. What balancing are we experiencing today with regard to the latter? This blog will provide an overview of “balancing” in two areas: First, the applicability of the Warrant Requirement of the Fourth Amendment to cell site location information (CSLI). Second, how the Fifth Amendment privilege against self-incrimination fares in the face of encrypted devices such as smart phones. (A note for those interested: Neither the Fourth or Fifth Amendments apply to State law enforcement. Instead, the constitutional principles we will be addressing have been incorporated into the Fourteenth Amendment, which is applicable to the States).

The Warrant Requirement.

The Fourth Amendment provides:

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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For our purposes, it suffices to know several things about the Fourth Amendment: (1) It is intended to protect people, not places; (2) whether or not a warrant is required turns on the facts specific to a given situation; (3) those facts focus on whether a person has a “reasonable expectation of privacy;” (4) that expectation has both subjective and objective aspects; and (5) a showing of probable cause is more exacting than one of “good cause.”

Why does all this matter when CSLI is in issue? Imagine a situation in which the police have identified a suspect in a string of home robberies in a town. The police want to build a case against the suspect. To do so, the police demonstrate good cause for an order under something known as the Stored Communications Act (remember that there is a distinction between probable cause and good cause). The order directs a third party cell phone service provider to turn over CSLI to the police. The CSLI was automatically generated by the suspect’s cell phone and covered a 60-day period based on the dates of the first and latest robberies. The CSLI places the suspect in the vicinity of the homes that were robbed near the times of the robberies. He is arrested and charged with the robberies.

Now what? The defendant moves to suppress the evidence derived from the CSLI. He argues that he had a reasonable expectation of privacy in his movements over the 60-day period, that a showing of good cause was insufficient, and that the CSLI could only be obtained pursuant to a search warrant supported by probable cause.

Should the motion be granted or denied? Rather than answer the question let me pose a few others:

• Is the length of time over which the CSLI was collected important? In other words, does an extended time period implicate privacy concerns?
• If so, and assuming that the defendant had a subjective expectation in the privacy of “his” CSLI, is there an objective expectation of privacy in the CSLI? In other words, do we as a society recognize such an expectation of privacy?
• What about the fact that the CSLI is generated automatically by an electronic device and captured electronically by a third party cell phone service provider? In other words, can there be an objective expectation of privacy as to information communicated to a third party?

I won’t answer these questions, at least for now. Suffice it to say that different – and conflicting – answers have been given by federal and State courts as these interpret and apply the Fourth Amendment. And, to throw in more complexity, State courts have given different – and conflicting answers to my questions as those courts interpret State constitutions!

The privilege against self-incrimination.

The Fifth Amendment provides, in pertinent part, that

“No person *** shall be compelled in any criminal case to be a witness against himself.”

Again, for our purposes it suffices to know several things about the Fifth Amendment: (1) It is intended to protect an individual; and (2) it addresses compelled testimony.

Imagine a situation in which an individual owns a smart phone. The phone incorporates an encryption feature which the manufacturer cannot “break” through some “backdoor” built into the phone (or so it represents). The individual is an officer of a corporation. The FBI is investigating the corporation and its officers for criminal violations of securities laws. In the course of its investigation the FBI secures a warrant allowing it to seize the phone and search the content of the phone. However, the FBI cannot break the encryption feature. The Department of Justice then seeks an order directing the individual to decrypt the phone. The individual objects, arguing that compelling him to decrypt the phone would make him a witness against himself in violation of the Fifth Amendment.

Should the motion be granted or denied? Rather than answer the question let me pose a few others:

• Would it matter whether the FBI wants the content to prosecute the individual or the corporation?
• Would it matter whether the content “belongs” to the individual or the corporation?
• Would it matter whether the FBI knows what the content is and simply wants the phone decrypted to see that content?
• What if the motion is granted and the individual then says that he cannot remember the code he created to enable him to decrypt the phone?

I won’t answer these questions either, at least for now. As with my Fourth Amendment-related questions above, suffice it to say that different – and conflicting – answers have been given by federal and State courts as these interpret and apply the Fifth Amendment.

Conclusion.

The questions I posed under the “facts” described above illustrate what federal and State judges, as well as prosecutors and defense counsel, address on a daily basis, namely the clash between individual rights and the need to investigate and prosecute criminal conduct. That clash now has an “electronic” component that requires consideration of electronic devices as well as the electronic information that these devices create, store and transmit. And that component must be “fitted” into a constitutional framework created in the 18^th Century.

That framework is a “living” one that has evolved over 200 years in the face of new technologies and will continue to do so as new devices and information proliferate. In doing so, the Bill of Rights will be construed to balance individual concerns over privacy and societal concerns for security.

Stay tuned as we continue to debate this topic and deliver more information for your consideration.

© 2016 Ronald J. Hedges and Vaporstream® All rights reserved.