Category Archives: Privacy

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

By Lacy Triplett

In relevant portion, the Fourth Amendment provides people “the right…to be secure in their persons…and effects, against unreasonable searches, and no warrants shall issue, but upon probable cause…”[1] Although the Fourth Amendment states that searches of persons and their effects must be conducted pursuant to a warrant, there are certain exceptions to that rule.[2] One common exception is a search incident to arrest, which as stated in Chimel v. California permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[3] The Chimel Court rooted the search incident to arrest exception in two justifications: (1) the need to protect an officer’s safety and (2) the need to prevent the arrestee from destroying evidence.[4]

In addition to searching the arrestee’s person, any items or containers on the arrestee’s person at the time of the arrest or within the arrestee’s reaching distance may be searched incident to the arrest.[5] The exception has been used for decades to uphold the warrantless searches of a variety of objects, such as pagers, wallets, and address books.[6] Yet the law is in flux in regard to warrantless searches of cell phones. Various circuits have decided the issue with the majority of those courts holding that cell phones are permitted to be searched incident to arrest under varying Fourth Amendment jurisprudence.[7] Despite the variance among the circuit courts, the Supreme Court will soon settle the split and provide police officers with an easy and practical rule to apply in the field.

On April 29, 2014, the United States Supreme Court will hear oral arguments regarding whether the Fourth Amendment requires police officers to obtain a search warrant prior to searching an individual’s cell phone incident to his lawful arrest.[8] The Court will hear United States v Wurie and its companion case, Riley v. California, both of which involve cell phone searches with the former being a flip-phone cell phone and the latter being a smartphone.[9]

United States v. Wurie

An officer was performing routine surveillance in Boston when he noticed Wurie and another individual engaged in what the officer believed to be a drug sale in a convenience store parking lot.[10] Wurie drove off in his car, while the officer and another member of the Boston Police Department stopped the other individual and found two plastic bags of crack cocaine in his pocket.[11] The individual stated he bought the crack cocaine from Wurie and noted that Wurie lived in South Boston.[12] Wurie was later arrested for distributing crack cocaine.[13] When Wurie subsequently arrived at the police station, two cell phones were taken from him as well as a set of keys and a large sum of cash.[14] Prior to being booked, one of Wurie’s cell phones received repeated calls from a number listed as “my house.”[15] The officers then opened Wurie’s cell phone to check his call log, and as soon as the officers opened the phone they saw Wurie’s wallpaper, which was a picture of a young black woman holding a baby.[16] The officers were able to determine the phone number associated with the caller ID for “my house,” which led them to an address where Wurie’s car was parked when he was arrested.[17] The officers then took the keys they confiscated from Wurie and went to the address associated with “my house” where the officers saw a woman who resembled the photograph on Wurie’s cell phone wallpaper.[18] Once at the apartment, the officers entered and “froze” it while they obtained a search warrant.[19] Upon receipt of the warrant, the officers seized cocaine and marijuana, guns, ammunition, and cash.[20]

The United States District Court for the District of Massachusetts denied Wurie’s motion to suppress the evidence officers obtained from searching his cell phone.[21] The First Circuit held that the officers’ search of Wurie’s cell phone was a violation of the Fourth Amendment, and specifically stated “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”[22] The First Circuit continued by stating that the Supreme Court, when it decided the cases which set forth the search incident to arrest exception, “could not have envisioned a world a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of tangible data—data that is not immediately destructible and poses no threat to the arresting officers.”[23] In reversing the district court, the First Circuit stated, “warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest…without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’”[24]

Riley v. California

Riley was suspected in a gang shooting and was stopped in his vehicle by officers.[25] A subsequent search of his car revealed two handguns, which were forensically tied to the earlier shooting.[26] Riley was arrested and his cell phone was seized; his cell phone records showed that his phone was used near the shooting location around the time the shooting occurred and contained pictures of Riley making gang signs.[27] The trial court denied Riley’s motion to suppress the evidence from his vehicle search and from his cell phone search.[28]

People v. Diaz, a California Supreme Court case, controlled the Court of Appeals for the Fourth District’s ruling.[29] Diaz held that warrantless searches of cell phones were permissible because attempting to define a container as “worthy” or “unworthy” exceeded the bounds of the Fourth Amendment.[30] The California Supreme Court further stated that the storage capacity of an item was irrelevant.[31] Riley followed the precedent set forth by Diaz, and resulted in the Fourth District affirming the denial of Riley’s motion to suppress.

Possible Outcomes

Hopefully, the Court will issue a concrete ruling after it hears oral arguments on the issue of whether a search warrant is needed before officers search an arrestee’s cell phone, which will provide guidance to police officers. The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurie and find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. The Court may take other approaches and rule that officers are only permitted to seize cell phones incident to arrest and are prohibited from searching them until there is a warrant. Another approach is that officers can only search cell phones when there is reason to believe that there is evidence of the crime on the cell phone, which falls in line with the Court’s recent decision in Arizona v. Gant.[32] Whatever ruling the Court chooses to adopt will have a substantial impact on police officers and citizens alike, either by significantly restricting the types of searches that can be performed or by significantly imposing on an individual’s privacy rights.

[1] U.S. Const. amend. IV.

[2] United States v. Robinson, 414 U.S. 218, 224 (1973).

[3] 395 U.S. 752, 762–63 (1969).

[4] Id.

[5] United States v. Curtis, 635 F.3d 704, 711–12 (5th Cir. 2011).

[6] See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

[7] See Silvan W. v. Briggs, 309 F. App’x 216 (10th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); United States v. Murphy, 553 F.3d 405 (4th Cir. 2009).

[8] United States v. Wurie, SCOTUSblog, http://www.scotusblog.com/case-files/cases/united-states-v-wurie.

[9] Greg Stohr, Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg, (Jan 17, 2014) http://www.bloomberg.com/news/2014-01-17/mobile-phone-searches-by-police-get-top-u-s-court-review.html.

[10] United States v. Wurie, 728 F.3d 1,1 (1st Cir. 2013).

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Id.

[16] Wurie, 728 F.3d at 2.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Wurie, 728 F.3d at 12.

[23] Id. at 12.

[24] Id. at 13.

[25] People v. Riley, D059840, 2013 WL 475242 (Cal. App. 4th Dist. Feb. 8, 2013).

[26] Id. at *1.

[27] Id. at *2.

[28] Id.

[29] Id. at 6.

[30] People v. Diaz, 244 P.3d 501, 507 (Cal. 2011).

[31] Id. at 95.

[32] 556 U.S. 332 (2009).

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

By: John Gamble

Alabama’s Anti–Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”[1] However, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[2] That vague exemption has actually proved quite a significant roadblock to enforcement of the law.

In 1998 the Alabama legislature passed the Anti-Obscenity Enforcement Act ostensibly to deal with a serious public nuisance in the state, the commerce of dildos and other like objectionable devices. The legislature justified the necessity of the act stating, “That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores . . . the sale and dissemination of obscene materials should be regulated without impinging on [the] First Amendment . . . .”[3] Similar justifications were used by Texas in their comparable sex toy law, to no avail when the validity of the Texas law was brought before the Fifth Circuit Court of Appeals.[4]

Alabama’s previous Attorney General, Troy King, thought the sex toy issue one of such importance to fight a long and costly legal battle spanning almost a decade, in order to rid the state of these corrupting rubber menaces. However, that battle produced a rather pyrrhic victory when the state won its case before the Eleventh Circuit. Because not only was the decade long legal dispute undoubtedly expensive, but likely produced little results in terms of actually enforcing of the law. The law, vaguely written in general, contains the aforementioned key exception that allows the sale of sex devices for “a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[5] Many sex toy shops continue to operate in the state currently hiding beneath this broad and vague exception.[6] And in fact, the “attorney general’s office has never prosecuted a store for selling to a customer who said the purchase was for one of the approved reasons.”[7] Apparently, that loophole in Alabama’s law is quite large, large enough for a Sex Toy Drive-Thru to do a successful business in Huntsville in the immediate aftermath of the state’s successful defense of the law.[8] Increased liveliness in Alabama’s political rhetoric may be the only positive result from the law. The Libertarian candidate for governor in 2006, Loretta Nall, began a sort of dildo drive entitled “Sex Toys for Troy” in 2007, which called for citizens to voice their disagreement with the law by mailing sexual devices to the Attorney General’s Office.[9] And while the idea of the former straight-laced Attorney General unwittingly opening packages packed full of adult inflatables of sundry colors and sizes might seem chortle-worthy, there is nothing comedic about the cost to the state’s coffers from the litigation nor is it comical that this sort of legislation contributes to Alabama’s image as the “laughingstock of the country.”[10] The Anti-Obscenity Enforcement Act particularly contributes to this image when we consider the unfortunate fact that the Act is not some outdated dusty old blue law freshly dug from the courthouse basement, but a law that was passed at the end of the Twentieth Century.

The Anti-Obscenity Enforcement Act was challenged almost immediately following its passage. During a convoluted legal battle in which the case pinged back and forth between the Eleventh Circuit and the Northern District of Alabama two appellate rulings from the Eleventh Circuit are particularly important in understanding the Eleventh Circuit’s attitude regarding the constitutionality of the statute. In Williams IV[11]the court was forced to evaluate the statute in light of new Supreme Court precedent, Lawrence v. Texas[12]. In Lawrence, the Court overturned a Texas sodomy statute on Due Process grounds.[13]Problematically, however, Lawrence contained all sorts of lofty dicta seemingly protective of privacy rights, but the majority did not clearly state what level of scrutiny the Court applied in striking down the Texas law.[14] The lack of a specific standard of review created quite an unusual problem given the importance of the three-tiered scrutiny system to due process/fundamental rights analysis.[15]Though Lawrence broadly reframed the right at stake, the decision did not do so clearly despite Justice Kennedy’s seemingly sublime libertarian proclamations including, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[16]

The Williams IV court distinguished the fact situation in Lawrence noting, “There is nothing private or consensual about the advertising and sale of a dildo.”[17]The Williams IV court also refused to conclude from Lawrence that sexual privacy is a fundamental liberty interest that would trigger strict scrutiny.[18]To determine this, the Williams IV court even conducted its own Glucksberg analysis, which of course resulted in Rational Basis review, as no fundamental right was found.[19] Thus, the Eleventh Circuit decided that because the Alabama law was based on only the trade of such sexual items that privacy was not implicated in a similar manner as the sexual conduct at issue in the Lawrence decision. Therefore, the Williams IV court had no difficulty upholding the Anti-Obscenity Act under Rational Basis Review.

More interestingly, the case returned to the Eleventh Circuit in 2007. The Williams VI[20]court again distinguished the commerce of sex toys from the situation in Lawrence. The court opined that because the private use of sex toys was not prohibited under the Alabama law, Lawrence did not govern the result. Despite the Lawrence endorsement of Justice Stevens’ view opining that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ,”[21] the Williams VI court again further extrapolated that Lawrence did not completely bar public morality as a rational basis for legislation. The Court noted, “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence If now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . .”[22]

However, the following year the Fifth Circuit had a different take on Lawrence when it interpreted a very similar Texas statute. The Fifth Circuit circumvented the ambiguity found in Lawrence regarding the level of scrutiny applied by the Court by applying the holding of Lawrence directly to the facts at bar in Reliable Consultants without regard for the standard of review.[23]However, though the standard of scrutiny was somewhat ignored, the Fifth Circuit’s opinion seems to read like Rational Basis Review. Regardless, Texas could not even overcome rational basis because aside from public morality, now insufficient according to the Fifth Circuit in the aftermath of Lawrence, Texas could advance only dubious government interests supporting the law including interest in protection of “unwilling recipients” of sex toys.[24] Unlike the Eleventh, the Fifth Circuit interpreted Lawrence as utterly barring public morality as a sufficient justification for a statute even under rational basis review.[25] They particularly noted the adoption of Justice Stevens’ view as controlling by the majority in Lawrence.[26] The Fifth Circuit continued to opine that just as public morality was insufficient to regulate private adult sexual activity in the home, as was the case in Lawrence, then public morality is also an insufficient justification for the Texas statute which restricted the same sphere of activity.[27]

With the unresolved circuit split, the extent of Lawrence undefined, and an absolute lack of interest by Alabama’s legislature in repealing the law, it seems the Anti-Obscenity Enforcement Act is around to stay for the time being. The Eleventh Circuit’s refusal to give Justice Steven’s language full effect is regrettable as it has contributed to a “plain silly”[28] law languishing in our state code until the People compel the legislature of Alabama to change it. But connoisseurs of such objects need not be totally crestfallen, a sex toy can still be purchased in the state with only a quick signature of a waiver affirming to use the device only for medical purposes. So far the Attorney General’s Office has not required buyers to make the arduous trek across state lines to Florida or Georgia.


[1]Ala. code § 13A-12-200.2 (West, Westlaw through 2013 Legis. Sess.).

[2]Ala. Code § 13A-12-200.4 (West, Westlaw through 2013 Legis. Sess.).

[3] Anti-Obscenity Enforcement Act, 1998 Ala. Acts 98-467.

[4]See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-746 (5th Cir. 2008) (explaining that no “rational connection” exists between the Texas statute and the protection of children nor does such a connection exist regarding unwilling adults who must make an “affirmative decision” to purchase such a device).

[5]§ 13A-12-200.4.

[6] Mike Brantley, Alabama Sex Toy Ban: Court Rejects the Challenge, (Sep. 11, 2009, 3:41 PM),http://blog.al.com/live/2009/09/alabama_court_rejects_challeng.html

[7]Id.

[8]Jay Reeves, Sex Toy Drive-Thru Opens after Long Legal Battle in Alabama, (Dec. 30, 2010, 5:30 AM),http://www.huffingtonpost.com/2010/12/30/pleasure-sex-toy-drive-thru-alabama.

[9]Nall Adds Humor to Sex Toy Debate, The Tuscaloosa News (Nov. 16, 2007, 3:30 AM), http://www.tuscaloosanews.com/article/20071116/NEWS/711160301?tc=ar

[10]John Archibald, Alabama Rep. John Rodgers Out to Bust the Sex Toy Ban (Jan. 20, 2008, 6:57 AM),

http://blog.al.com/archiblog/2008/01/alabama_rep_john_rogers_out_to.html (quoting Representative John Rogers, who has twice unsuccessfully tried to repeal the current statute).

[11] Williams v. Att’y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[12] Lawrence v. Texas, 539 U.S. 558 (2003).

[13]See id. at 562-564.

[14]See generally William C. Hayes, “Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas, 44 Ga. l. Rev. 245, 259 (2009) (noting both that Justice Kennedy’s majority seems to have completely ignored the two-part Glucksberg fundamental rights test and that lower courts have been confused by Lawrence’s precedential value).

[15]See U.S. v. Virginia 518 U.S. 515, 567-568 (1996) (Scalia, J., dissenting) (explaining strict scrutiny is applied to state classifications affecting fundamental rights as determined by the Court and noting that such, in his view, “’fundamental rights’ should be limited to ‘interests traditionally protected by our society’”); see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality, Scalia, J.); for more on the Court’s traditional recognition of narrow fundamental rights see Washington v. Glucksberg 521 U.S. 702, 721 (1997).

[16]Lawrence at 562.

[17] Williams IV at 1237 n. 8.

[18]See id. at 1238 (explaining that Lawrence was actually a rational basis decision).

[19]Id. at 1242 (defining the right at issue in the case as “the right to sell and purchase sexual devices”).

[20] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[21] Lawrence at 577.

[22] Williams VI, 478 F.3d at 1323 (citing Williams IV, 378 F.3d at 1238 n. 8).

[23]See Reliable Consultants at 744.

[24] Id. at 746.

[25] Id. at 745.

[26] Id.

[27] Id.

[28] Williams IV at 1251.

Misplaced Outrage: Defending the Supreme Court’s Decision On Inmate Strip Searches

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Justice Kennedy and the Strip Searchers,”[i]Embarrass the Future?,”[ii]Strip Searches: The Supreme Court’s Disturbing Decision.”[iii]

This sampling of titles from blogs run on major news sources, along with an endless number of articles with less catchy titles, exhibits what seems to be a united sense of public outrage regarding the Supreme Court’s recent decision in Florence v. Board of Chosen Freeholders of County of Burlington.[iv] The decision confirmed the legality of strip-searching of all individuals taken into custody upon intake into jails, even in the absence of reasonable suspicion. While the decision permits results that are certainly troubling, such as the searching of arrested individuals who may not even be charged with misdemeanors, the outrage of opponents is misplaced towards a correct decision rather than at the underlying problem that placed these individuals in custody in the first place.

The concern is that this decision subjects individuals who have committed nothing more than a misdemeanor to a degrading and unnecessary process.  Indeed, the underlying offense leading to Mr. Florence’s arrest was a failure to pay a fine.  This offense creates absolutely no legitimate concern for officers to suspect him to be concealing weapons or drug contraband. Mr. Florence claimed that an invasive search of inmates, such as himself, without reasonable suspicion constituted an unreasonable search forbidden by the Fourth Amendment.

The process subjected Mr. Florence to shower with delousing soap. While he was undressed, officers checked for scars, marks, gang tattoos, and contraband. He was asked to open his mouth, lift his tongue, hold his arms out, and lift his genitals turn around and cough in a squatting position. All of this is done without touching by jail officials.

This is no doubt a humiliating and embarrassing process.  However, the appropriate standard for reviewing policies comes from the Supreme Court decision Turner v. Safly that says infringing on inmate’s constitutional rights is that it must be upheld “if it is reasonably related to legitimate penological interests.”[v] In other words, jail officials have broad discretion related to the creation of effective prison management and security. The primary concern of the process is maintaining safe and sanitary conditions for inmates. The intake of inmates is a prime source of risks with relation to these concerns. Incoming inmates into general population must be screened for contagious diseases, wounds needing medical attention, and contraband which any one of which would compromise the safety and sanitation of the jail’s general population.

With respect to individuals brought in on minor offenses, there are still concerns of contagious disease, lice and gang-affiliated tattoos that require a full inspection. With respect to inspection for contraband, the only reason to excuse individuals brought in for minor offenses would be if one’s offense is truly a proper indicator of their likelihood to carry contraband.

Particularly with respect to gang-members, it is not far-fetched for a low-ranking member who, for the purpose of this example has no gang tattoos or history of violence, to create reasonable suspicion for inspection, to drive around town at 100 miles per hour until he is arrested and then use smuggled weapons to kill a member of a rival or sneak drugs in for a fellow member serving longer time. Outside of gang-related examples, as Justice Kennedy comments, the seriousness of an offense can be a poor predictor of who has contraband or a tendency for violence. Despite Mr. Florence’s request that officers only inspect an individual who poses a reasonable suspicion, the task of drawing this line is difficult, if not impossible, and the consequences of drawing it incorrectly can be severe.

The difficulty of the task is exhibited by administrative costs, lack of information and fears of racial profiling.  With respect to information, officers often know little about an individual upon taking him into custody.  He may be carrying a fake ID or lie about his identity thus making it difficult to immediately access criminal history.  Additionally, if inspections are not routinely made, then it is difficult to justify any inspections in the absence of an arrest for a drug or violent offense. Outside of inspections upon these motivations, there would likely be claims of officers inspecting based upon an inmate’s race, or, in the alternative, there could be a hesitancy on the part of officers to inspect a reasonably suspicious individual due fear of such claims.

In light of the infeasibility of drawing an appropriate line, the considerable consequences of failing to inspect an individual who poses a threat to the health and safety of the prison population, and the generally broad discretion afforded correctional facilities in forming policies to solve problems, the Supreme Court’s decision is legally correct.

Somehow, the fact that the decision was based upon correct constitutional analysis does little to remove the absurdity of a situation such as a 90-year old grandmother being strip-searched for failing to wear a seat belt or having an expired car registration.  However, the problem lies with the underlying system in which this otherwise law-abiding old lady is put into custody in the first place.

In Atwater v. Lago,[vi] a case cited by the majority, the court allowed for a situation in which individuals arrested for minor offenses might be detained in jails. In an offense even lesser than Mr. Florence’s, Ms. Atwater was arrested for not wearing her seat belt. Despite the fact that this offense could not include jail time, the court found that officers may arrest her upon probable cause that she “committed a criminal offense in their presence.” In the name of investigating the crime, the police could bring her in for a minor crime just easily as for a major one.

According to Justice Kennedy’s opinion, jails alone, not including prisons, admit roughly 13 million inmates a year. Considering this number, it is beneficial for correctional officers to have standard procedures for inspecting inmates. Indeed, it is infeasible and ill-advised to adopt a different approach. The much more reasonable and feasible solution to preventing stories of strip-searching for failure to wear a seat belt is for policy makers to address what are offenses truly merit jail time.

As long as individuals are being brought to jail on minor charges, it is appropriately within the jail’s authority to have flexibility in providing for the inmate’s safety, the safety of the jail population and the correctional officers. While certainly an inmate has a concern of being strip-searched, on the other-hand there is a concern of being thrown into a jail, where other inmates have not been strip-searched.  As Justice Scalia explains it, “the same people who are suing [jails] for the strip search would be suing them for being stabbed by someone with a shiv.”[vii]

Florence v Board of Chosen Freeholders of County of Burlington.

“Justice Kennedy and the Strip Searchers.”  The New Yorker.

“Embarrass the Future?”  New York Times

“Strip Searches: The Supreme Court’s Disturbing Decision” Time

“Siding with Security Needs over Privacy Right” MSNBC

Atwater v. Lago Vista, 532 U.S. 318.

“Scalia Defends Strip Search Decision in USM Talk.”  Clarion Leadger   


[vii] http://www.clarionledger.com/article/20120404/NEWS/120404033/Scalia-defends-strip-search-decision-USM-talk?odyssey=nav%7Chead

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Drones: Soon Coming To A Sky Near You

The technology used for air traffic control is changing and so is the civilian aviation landscape. Last month,

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Congress approved a plan that would phase out radar as the means of tracking planes and shifted to a system using GPS-satellite tracking.

Under this plan, the FAA would be required to phase in unmanned drone flights in currently-restricted U.S. airspace.[1] At the present time, the United States military maintains an arsenal of roughly 7,500 remote-controlled drones. With the end of combat operations in Iraq and the scale-back of combat operations in Afghanistan, there will be more drones back in the United States. Under current FAA regulations, remote-controlled drones are not allowed in U.S. airspace without special permission. This restriction is in place because the technology is not compatible with manned aircraft. The FAA is unsure of how the unmanned aircraft will interact with manned aircraft in U.S. cities.[2] To test how to integrate the drone force into the current civilian airspace, the FAA must establish a testing ground by June 30th of this year. The manufacturers of the drone fleet will have to create technology that allows the drones to sense they are flying too close to commercial or other manned aircraft and react accordingly. The FAA has yet to create guidelines as to how the technology needs to be developed and what the technology must contain.[3] Furthermore, there are broader questions as to how military technology used on the battlefield will be implemented back on the home front.

Several organizations have come out against the creation and implementation of these new policies by the FAA. Groups, such as the American Civil Liberties Union, have petitioned the FAA to ensure that the privacy rights of citizens are included in the analysis of allowing drones to be used domestically. The group warns in their petition that drones can easily intrude on the privacy of everyday people, and that this intrusion is a violation of the Fourth Amendment.[4] The ACLU’s petition states that these drones can “track up to 65 different targets across a distance of 65 square miles.” In addition, in the near future, these cameras may soon include facial recognition technology that would make it possible to remotely identify individuals at parks, schools, and political gatherings.”[5] The petition further urges that drones offer the user the ability to survey an area undetected by persons below. The drones can provide constant surveillance that previous technology could not sustain. Additionally, the petition argues that once facial recognition software is available for use on the drones, the FBI and other monitoring agencies could use that same technology against political dissidents. This use would, according to the ACLU, violate the would-be dissident’s First Amendment rights. The petition goes on to urge the FAA to evaluate the available options and conduct a study balancing the public and private interests in drone usage.

According to a recent Rasmussen poll, “that despite a willingness on the part of Americans to see the use of drones by the military in overseas situations, 52% oppose the use of surveillance drones by private entities, police agencies, and government agencies inside the US. Just 30% said they were in favor of the use of drones in the US.”[6] Jay Stanley, of the ACLU’s Speech, Privacy and Technology Project, says, “the FAA should be rightly concerned about ‘the safety effects of filling our skies with flying robots.’”[7] The concerns of these groups can be summed up in an additional quote by Stanley where he stated, “Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.’”

Are the fears of the ACLU and other civil rights and watchdog groups well-founded? Will law enforcement in the United States be able to capitalize on this drone technology to decrease the amount of privacy we as Americans enjoy? In a world filled with security cameras and electronic monitoring of our activities such as credit card purchases, how much further can (should) the government go? The ACLU cites facial recognition software as a concern on these drones if used for domestic surveillance. This technology has already been used at large events such as the Super Bowl (since 2001) to target suspected terrorists in the crowd.[8] While it is apparently still in the development stages for use on aircraft, the fact of the matter is that we as Americans already subject ourselves to the use of this technology in some areas of our lives already. Additionally, police helicopters already have the technology to track individuals using infrared sensors. In this day and age, it is nearly impossible to get away from a police helicopter that is equipped with the most up-to-date technology.

Technological developments generally make their way from military use to civilian use, just look to cell phone technology and sport utility vehicles. Why aren’t drones just the next step of technology in a long stream of innovations that have traveled through the military to civilian use cycle? While the ACLU uses a “parade-of-horribles” for their scenario, it does make a valid point. If the police already have the technology to pursue criminals with infrared from a helicopter, why do the police need to be able to track people up to over 65 square miles? If the FAA program is successful in implementing the use of drones, strict limits will have to be put in place. Battlefield technology does not need to be implemented in whole on the home front. There should be certain exceptions allowed for entities such as the Department of Homeland Security and the FBI; however, these exceptions should have to go through the highest levels of authority to be approved.

The FAA has the opportunity to upgrade our air traffic systems to the highest level. The future of shipping could one day be changed because some of these drones can carry such large payloads. While helicopter pilots will not be replaced, there could be fewer deaths from helicopter crashes. While few and far between when compared to the number of helicopters flying every day, there are frequent helicopter and even small aircraft crashes in the United States. If a news crew needs to get a shot of morning traffic, no longer will a helicopter have to take the camera man to the scene. A drone could take off, circle the city, and relay the images of the interstate back to the station to be broadcast. The possibilities for new innovative uses are endless; however, the possibilities for government use against the people are endless, as well, and must be closely monitored to ensure that our right to privacy is not infringed upon by a piece of technology that the eye cannot even see.


 [8] http://www.usatoday.com/news/washington/2007-05-10-facial-recognition-terrorism_N.htm

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

You Posted What?! “Private” Social Media Posts Are NOT Private Under Fourth Amendment

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

We all have those friends with constant Facebook updates:

“Getting ready for Singles Awareness Day… :(”

“OMG, I have the best boyfriend ever!”

“Facebook is changing again?! I just got used to it!”

Aside from minor annoyances, Facebook’s good far outweighs the bad. Like other social networking sites, Facebook allows its users to stay “connected” to old friends and family. But for Christine Rubio, a Facebook post cost Rubio her job, at least temporarily. Rubio, a 38-year-old woman, taught fifth grade math at Brooklyn Public School 203. With 15 years under her belt, Rubio enjoyed tenure. She had no disciplinary issues or U-Ratings aside from an unrelated incident.

On June 22, 2010, a New York public school student fatally drowned during a field trip to the beach. The next morning, Rubio logged on her Facebook profile. She posted a message about how awful it was that the twelve-year old girl had drowned. But after a rough day of school, she later logged back on at her home, stating, “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are devils (sic) spawn!” One of Rubio’s Facebook friends then commented on the post, “oh you would let little Kwame float away!” Rubio responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

Although she removed the posts three days later, the damage was already done. One of Rubio’s Facebook friends, who also worked at PS 203, contacted the school’s assistant principal and expressed concern about the propriety of the postings. After showing the posts to the principal, an investigation began. The investigator recommended that Rubio be terminated. The principal met with Rubio to discuss the situation and showed her the report. Rubio responded that she did not remember the postings and that a friend, Joanne Engel, had access to her Facebook account. Rubio provided contact information and the investigator re-opened the investigation, which included an interview with Engel.

During this interview, Engel admitted responsibility for the postings. But when the investigator expressed disbelief and warned that she could be incarcerated for perjury, Engel came clean. She confessed that the Rubio had asked her to take responsibility for the postings so Rubio would not lose her job. When asked about Engel’s confession, Rubio repeatedly denied having asked her friend to take the blame. She apologized numerous times during her New York School District hearings.

But that wasn’t enough to save her job. The hearing officer, in a 52-page opinion, found that Rubio had posted the messages, emphasizing that she had engaged in conduct unbecoming a teacher by posting offensive comments in a forum that is not truly private. Rubio was later terminated.

On appeal to the New York State Supreme Court (a trial court hearing appeals from the Department of Education), Judge Jaffe reduced Rubio’s penalty. In evaluating whether Rubio’s “punishment fit the crime,” Judge Jaffe credited Rubio’s unblemished record and the fact that Rubio posted the comment outside of school after school hours. She added, “Ending [Rubio’s] long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.” Rubio successfully won her job back.

What’s most interesting about Rubio’s case is her defense. Because her profile was set on the private setting, Rubio’s post only was distributed to her Facebook friends – a small, private, adults-only audience. Thus, she expected that only her friends would see the postings. Regardless of her claim, one of Rubio’s Facebook friends turned her in. The important (and more interesting) implication is the scope of “privacy” of Facebook and other social networking.

With the boom of social media, the intersection with the law has become a topic of conversation. Most people assume that the information they send through their “locked” or “private” profile is actually private. Behind the veil of a computer screen, people are actually emboldened to post otherwise questionable material. Perhaps that is why Rubio and millions of others use Facebook to rant when angry.

Federal Rule of Civil Procedure 26(b)(1) allows a party to discover “any nonprivileged matter that is relevant to any party’s claim or defense.” And as more people put more of their personal life on Facebook and other sites, litigants are increasingly using the sites for discovery and evidentiary purposes. See Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149 (D.Nev. 2007) (recognizing defendant’s right to request discovery of private MySpace messages relevant to plaintiff’s sexual harassment allegations).

In “locking” the profile or making it “private,” a user’s intent that the profile be shielded from the public may not be a legitimate basis for exclusion. But the actual release of information, whether or not it is set to private, may depend on where you live. In fact, as some law review articles have analyzed, U.S. courts have issued inconsistent holdings with different analyses and results. These holdings range from requiring the litigant to turn over all social networking information including logins and passwords, to enlisting the judge in the case to “friend” the litigant to obtain access to information and perform an in camera (“behind closed doors”) review, to allowing discovery of any information that fulfills narrowly tailored discovery requests.[1] The analysis may be further confused if litigants are trying to obtain information directly from social media sites.

For example, Facebook lets you know that it may reveal information when requested legally. Here’s a Facebook page that you have likely never seen:

We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.

But until the discoverability rules materialize into a set form, social media users need to be aware that their content is not as “private” as they think it is. Furthermore, users may need to be more selective in accepting friend requests. After all, it was a Facebook friend of Rubio’s that turned her in. Whatever the specific parameters of the discoverability of social media, one thing is clear: the information is available, making courts more susceptible to using your own posts against you. Use at your own peril.

Sources

Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010)

http://www.abc15.com/dpp/news/now_at_nine/teacher-burned-over-facebook-post

http://www.huffingtonpost.com/2012/02/07/christine-rubino-teacher-who-said-kids-deserved-to-drown-getting-job-back-city-vows-to-fight_n_1260144.html?ref=new-york&ir=New%20York

http://www.dailymail.co.uk/news/article-2096955/Teacher-Christine-Rubino-allowed-KEEP-job-despite-tasteless-joke-Facebook.html?ito=feeds-newsxml

http://www.nydailynews.com/new-york/education/city-vows-appeal-manhattan-judge-decision-give-drown-teacher-christine-rubino-job-back-article-1.1018080

http://nycrubberroomreporter.blogspot.com/2012/02/true-story-of-teacher-christine-rubino.html

http://www.facebook.com/about/privacy/other

http://publicintelligence.net/facebook-law-enforcement-subpoena-guides/

[1]Kelly Ann Bub, Privacy’s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1442 (2011).

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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