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TECHNOLOGY CASELAW UPDATEWhen They Want Your Client's Cellphone and Its Contents
REMOTE FOLKS, TWEET QUESTIONS TO: @JSCOTTKEY #KEYCASELAW
CONTACT ME
➤ Twitter:
➤ @jscottkey
➤ @millerandkeylaw
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➤ MillerAndKeyLaw
➤ Scott Key
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➤ 678.610.6624
3 TOPICS
➤ 4th Amendment and Cell Phone Searches
➤ 5th Amendment and Order to Decrypt and Unlock
➤ Subpoenas and Search Warrants for Subscriber Information
THEME: DON'T BE A DINOSAUR (THE LAW MOVES SLOWER
THAN THE TECH)
WHY IS THIS IMPORTANT
➤ There's a Tech Component to Every Criminal Case
➤ If you Don't Understand Facebook, Twitter, Snapchat, Instagram, Twitter, or the Next 5 Things, You Will:
➤ Nuke Your Client's Appeal
➤ Miss Legal Issues
➤ Sound Dumb to the Jury
HOW WELL DO YOU NEED TO KNOW IT
You need to know enough to teach it to the judges and justices who don't get it
Pro-Tip -- Read Opinions of the Judges Who "Get" It (GA: Dillard / TX: Justice Don Willett)
NEW V. STATE 327 GA. APP. 87 (2014)Jury Question About Whether Deleted Contraband
Images Were in the Possession of the Guy in Possession of the Computer
--- Read for the Rule and to Learn How to Write Briefs with
Tech Issues
4TH AMEND. AND CELL PHONES
What is a Cell Phone for 4th Amendment Purpose?
RILEY V. CALIFORNIA ,
134 S. CT. 2473 (2014)
GOVERNMENT PROPOSED TWO RULES TO DECIDE THE CASE
➤ Arizona v. Gant Methodology
➤ Warantless Search of Contents of Phone Permitted if there is reason to believe that the phone contains evidence of the crime of arrest
➤ Analogue Test
➤ Warrantless Search is Permissible if law enforcement could have obtained the same information contained on the cell phone from some pre-digital counterpart to the contents of the phone
➤ These exceptions Would Swallow The Rule
Balancing Test:
1. Government's Interest in Immediate Search
* Officer Safety
* Risk of Erasure
Versus
2. Privacy Interests of the Individual
* Vast Data Can Be Stored On Phone
* Our Whole Lives Are There
TAKEAWAY FROM RILEY
➤ Searches of Contents of Cell Phones Require a Warrant unless There is Truly an Exigent Circumstance (Instructions to Stop a Ticking Time Bomb)
➤ This Balance Will Almost Always Tip Toward Privacy
➤ Try to Keep This Framework in mind in other contexts.
ORDERS FOR PASSWORDS AND DECRYPTION
U.S. V. DOE (IN RE
GRAND JURY SUBPOENA)570 F.3d 1335 (11th Cir.
2012)
THE TRICK HERE
➤ The Question Does Not Turn on the Privacy Interests in the Contents of the Hard Drive or Device
➤ The Question Turns on Whether the Act of Decryption or of Disclosing the Password is "Testimony"
THE HOLDING
➤ Any Order to Decrypt Contents of a Hard Drive Is An Order to Compel Testimony
➤ Immunity That Leaves Room for the Government to Derive Use of that Testimony to Develop a Criminal Case Against the Witness Does Not Protect Against Self-Incrimination for 5th Amendment Purposes
SEC V. HUANG
➤ USDC for ED of Pennsylvania
➤ No 15-269 (2015)
➤ What if the Holder of the Password is an individual employee in possession of a corporate phone?
➤ Remember the Analysis -- the Focus is the Act not the Contents
THE TAKEAWAY
➤ Where the issue is court-ordered decryption or court ordered production of a password, the issues is not 4th Amendment But 5th amendment
➤ The Act of decryption or the providing of a password is Testimony for 5th Amendment Purposes
➤ Full Immunity May Require Production
➤ And If the Contents are Particularly described, then the foregone Conclusion may favor the gvt., but not yet
QUESTIONS AHEAD
➤ What if a bond condition is "Provide law enforcement your password, and you get a bond"
➤ Is this Jackson/Denno -- Miranda Self Incrimination?
➤ Is this speech with a hope of benefit / Fear of Punishment
SUBSCRIBER INFO.
➤ U.S. v. Graham, 824 F. 3d 421 (4th Cir. 2016)
➤ U.S. V. Davis, 785 F.3d 498 (11th Cir. 2015)
➤ U.S. V. Carpenter (6th Cir. 2016)
➤ Every Circuit has followed the 3rd Party Doctine
CONCLUSION
➤ Cell Phone Searches Almost Always Will Require a Warrant -- Riley
➤ A Person will Not be Required to Decrypt a Hard Drive or Provide a Passcode to his or her device without a grant of full immunity -- US v. Doe
➤ The Government May Freely get Access to Cell Phone Location Data and Without a Warrant -- Graham, Davis, Carpenter
➤ Stay Current on Tech and the Law so That you Can be Creative About it Going Forward
