Brave New Technology

High courts find themselves dealing with a flood of cases pitting privacy against technology.

If two recent court decisions are any indication, technology and privacy are at increasing loggerheads with each other. Last Monday, the Supreme Court of the United States (SOTUS) ruled that attaching a Global Positioning System (GPS) device to a suspect's vehicle cannot be done without first obtaining a search warrant. But in another ruling on the same day, Colorado U.S. District Judge Robert Blackburn ordered a Colorado woman to decrypt her own laptop computer so that prosecutors may use any evidence produced against her in a criminal case. The judge dismissed the defendant's contention that doing so would constitute a violation of the Fifth Amendment's protection against self-incrimination.

Both of these cases are problematic. In the unanimous ruling by SOTUS on United State v. Jones, the court made it clear that attaching a GPS device to a vehicle is a "physical trespass" that constitutes a search under the Fourth Amendment of the U.S. Constitution, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Oddly enough, the government did initially get a search warrant to apply a GPS device to the car of Antoine Jones, the owner and operator of a nightclub in the District of Columbia, who was suspected of being a drug dealer. The warrant was issued in 2005, authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. The GPS was supposed to be attached in DC and within 10 days, yet the agents involved missed on both counts. The device was attached on day 11 and in the state of Maryland. After tracking Jones for 28 days, the government issued a multiple-count indictment charging Jones and accomplices with possessing and distributing cocaine.

Jones moved to have the evidence obtained by the GPS suppressed. The District Court gave him partial relief, noting that data obtained while Jones's car was parked in the garage adjoining his residence could not be used, while the remaining data was admissible because a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."

The first trial in 2006 produced a hung jury. In 2007, the government used the same GPS data allowed in the first trial and got a conviction with Jones being sentenced to life in prison. United States Court of Appeals for the District of Columbia Circuit reversed the decision citing the Fourth Amendment. SOTUS concurred.

Yet the judges were split 5-4 over the reasoning behind the decision. The four minority justices wanted a wider understanding of privacy concerns, noting that the installation of a GPS tracker not only constituted trespassing on private property, but also infringed on the suspect's "reasonable expectation of privacy" due to the government monitoring his movements for a month. The majority opted for a narrowed interpretation of the decision, noting that the act of putting the GPS device on the car was tantamount to a warrantless home search.

Justice Antoin Scalia wrote for the majority. "The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted," he contended. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor. Justice Samuel Alito wrote for the minority. Limiting Fourth Amendment protections to trespassing property as understood in 1791 "is unwise" and "highly artificial," he argued. "It is almost impossible to think of late-18th-century situations" analogous to placing a GPS tracker on a car, unless one imagined "a gigantic coach, a very tiny constable, or both." He was joined Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

This is the first ruling in an expected flood of cases with respect to technology versus privacy. Yet even as the Supreme Court was ostensibly clearing up one aspect of this arena, Colorado U.S. District Judge Robert Blackburn was muddying the waters at the same time. "I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," the judge contended.

The case involves a computer seized by the government from defendant Ramona Fricosu in 2010 in the midst of a financial fraud investigation. They had a court-issued warrant to do so. As noted by Wired Magazine, full disk encryption "is an option built into the latest flavors of Windows, Mac OS and Linux, and well-designed encryption protocols used with a long passphrase can take decades to break, even with massive computing power."

Ms. Fricosu contends the decryption amounts to self-incrimination since the government would be unable to obtain the evidence used against her unless she voluntarily gives them access to it by providing her personal password. Assistant U.S. Attorney Patricia Davies countered with five arguments. First, the government knows the encrypted drive exists and has "sound bases" to believe the encrypted flies contain relevant information. Second, Ms. Fricosu's "voluntary conduct" has linked her to the encrypted files, having "discussed the Subject Computer with co-defendant and ex-spouse Scott Whatcott while he was incarcerated (and the telephone call was being recorded) and referenced specific information relevant to the case that the Subject Computer contains." Third, the government already has the drive and only wants Ms. Fricosu to "authenticate" what's on it. Fourth, the government only wants what is on the drive, not Ms. Fricosu's password. Fifth, the files do not warrant Fifth Amendment protection because they were created "voluntarily and prior to the execution of the search warrants."

U.S. Attorney Davies further contended that an unfavorable ruing by the judge would be "a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible."

Judge Blackburn gave Fricosu until Feb. 21 to produce an unencrypted hard drive. Yet at the same time he added even more confusion to the mix, noting that the government is prohibited "from using Ms. Fricosu’s act of production of the unencrypted hard drive against her in any prosecution." Perhaps any other prosecution is what the judge intended to mean. Phil Dubois, Ms. Fricosu’s attorney, will seek a stay in the ruling, and possibly appeal the decision as well. "I think it’s a matter of national importance," he explained. "It should not be treated as though it’s just another day in Fourth Amendment litigation."

Thus, we have two court decisions seemingly at odd with each other, with the latter likely to end up in the Supreme Court as well. Both concern the ever-increasing ability of the government to intrude into spaces that were once impossible to penetrate prior to the advance of technology. In a society where the reasonable expectation of privacy is becoming far less reasonable, it is critically necessary to define the limitations of technological invasions of privacy. Here's hoping the courts, or in this instance Supreme Court at least, continue to err to the side of caution.

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