Tagged: search and seizure

Amazon Echo and Privacy Issues: What You Can Say Can Be Used Against You

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The Amazon Echo, a “smart speaker” device responsive to voice commands, was one of Amazon’s best selling products this holiday season. With millions sold worldwide, the Echo, and other similar “smart home” products, are becoming mainstays in any tech-savvy home. But while the Echo has many uses – it streams music, reads audio books, tells the weather forecast, and syncs to nearly any other electronic device you can think of – it is also potentially causing serious privacy concerns. Strangely enough, a murder case in Arkansas, to which the Echo may have been a “witness,” is bringing the issue of “smart” devices and privacy to the forefront of criminal and constitutional law.

In 2016, the body of Victor Collins was found floating in a hot tub at a friend’s home in Arkansas. The friend, James Andrew Bates, was charged with murder. An Echo device was found on Bates’ property, and prosecutors requested the court to compel Amazon to provide data from the Echo that may reveal more information about the events that led up to Collins’ murder. In August 2016, the judge signed a search warrant requesting all “audio recordings, transcribed records, text records and other data” on Bates’ Echo, however Amazon has yet to fully comply. An Amazon spokesperson released a statement that the company “will not release customer information without a valid and binding legal demand,” and it objected to “overbroad or otherwise inappropriate demands as a matter of course.”

Whether Amazon produces the requested data might have far-reaching implications regarding the privacy of the millions of people that use the Echo. As a case of first impression, the issues surrounding this criminal prosecution will set precedent for how future criminal matters will handle the discovery and admissibility of such information.


What Can the Echo Uncover?

The Amazon Echo offers a wide variety of functions by voice command. Responding to the name “Alexa,” the user can ask the device simple questions (such as the weather report) or more involved queries (such as recipe instructions). Once the Echo hears “Alexa” (or another activation phrase set up by the user), it begins to record. The user’s commands or questions are then sent to Amazon’s cloud servers, where the recorded snippet is run through a speech-recognition neural network. At that point, a response to the user’s command or query is sent back through the Echo. Amazon keeps all of the recordings of the user’s questions and commands. However, audio is only saved after the keyword – usually “Alexa” – is spoken and triggers the recording device. Users can elect to delete their old voice recordings on Amazon’s website or through the Echo app on their phone. In addition, the Echo has a “hard mute,” which physically disconnects the microphone, making it impossible to record audio.

Amazon does not have a stated policy about how long it holds onto such data. The Echo itself does not have large hard drive space, so only very little information is stored on the actual device. Therefore, the only means of obtaining any pertinent data from the device is through Amazon and its cloud storage.


Constitutional Implications

There are many constitutional implications of such a device being used against a person in a court of law – the first and foremost concern being one’s reasonable expectation of privacy in his home. As most citizens are aware, the Fourth Amendment protects against unreasonable searches and seizures. But what constitutes unreasonable in the case of electronic devices in the home? A search is considered reasonable if the government obtains a valid search warrant and demonstrates probable cause that the search is sufficiently particular. This showing is beyond a mere suspicion and must be based on reasonable grounds. As we have seen in the past decade or so, search warrants for cell phones and social media accounts (i.e., Facebook, Twitter, and Instagram) have composed a large portion of search warrant requests. Some proponents of releasing the Echo’s data would argue that the device is no different than the other electronic devices and applications that have come before it. However, it is important to note that unlike a cell phone or Facebook account, the Echo’s main purpose is not to communicate with others. Rather, it is more autonomous, focusing only on the user’s own commands, queries, and personal home activities. While search warrants usually request cell phone records and Facebook information to ascertain a person’s communications with others, the Echo device is a record of the owner’s communications with himself. To argue a sufficiently particular reason why the Echo would contain incriminating evidence against another is essentially saying opening the door for the discovery of any other form of home monitoring.

If the Echo can solve a murder, many would argue Amazon’s release of such information would be a noble cause. And if the courts can narrow the application of such search warrants so that they are sufficiently particular to the information sought (i.e., a recording of the suspect and victim), then even better. However, the multitude of the Echo’s uses can lead down a slippery slope beyond murder investigation, resulting in unreasonable invasions of privacy. Depending upon one’s tech savvy, some Echo devices are used to regulate nearly every function of the home. For example, the Echo integrates with a variety of other home automation smart devices, which enables the user to control a range of utilities in the home such as lighting, security systems, and electricity. If the Echo is connected to these devices, it can contain vast information that may be used in the prosecution of crimes. Incidentally, in the Bates’ case, information obtained from his “smart meter” showed that he used “excessive amount of water” during the time of the victim’s death. But such circumstantial evidence need not be used only in murder investigations. Potentially, with such information readily available and streamlined to one’s device, an Echo can just as easily expose its owner for far lesser offenses such as meter tampering and illegal cable rigging, just to name a few. Could it get to a point where Echos are routinely sought in civil proceedings as well?

The technological advancements we have witnessed in the past decade alone are astonishing. And understandably so, such innovations may need to be considered for evidentiary purposes in a court of law. Whatever Amazon chooses to do with the Echo’s data will be just the beginning. It is incumbent upon the courts to ensure that production of information is narrowly applied to fit the particular circumstances of the case. Otherwise, the threat of unreasonably invading one’s privacy in the home will become imminent.

Prof. Gershman on “Parking While Black”

In his most recent Huffington Post piece titled Parking While Black, Prof. Bennett L. Gershman reviews a recent Circuit Court decision, United States v. Johnson, which is currently pending re-hearing at the 7th Circuit after it initially upheld the lower court’s decision. Prof. Gershman raises a fair question: “[Are the courts] about to decide if police have another legal method for harassing black citizens[?]”

In the middle of a Wisconsin winter with streets covered in snow, local Milwaukee police decided to harass a parked car with four black passengers inside after one just returned from a liquor store, citing Milwaukee parking ordinance (alleging the car was parked too close to a crosswalk), pulling all passengers out of the car, handcuffing them, searching the entire car and finding a gun as a result.

While the court’s majority sided with the government and held that the police did not violate the defendant’s Fourth Amendment rights and reasoned that police had probable cause (based on the parking ordinance) and as such “could forcibly detain the car and search the occupants,” Judge David Hamilton delivered a worth-to-read dissent, calling the police conduct “terrifying,” “outrageous,” and “extraordinary.” As Prof. Gershman points out, Judge Hamilton carried on by saying:

Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so.” … “No police officer could expect to keep his job if he treated a standing car as worthy of a [forcible] stop.”

Prof. Gershman concludes that:

The panel decision was vacated last month, and reargument has been ordered. It remains to be seen whether the entire circuit court will see it as Hamilton did or whether “parking while black” will sadly become as common a phrase as “driving while black.”

Justice Antonin Scalia and His Legacy in Criminal Law

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

Justice Antonin Scalia’s recent passing has shocked the public, to say the least. The 79-year old Supreme Court Justice died in his sleep on February 13, 2016, while staying at a Texas resort during a hunting trip. The first Italian-American to serve on the Supreme Court, Scalia leaves behind his wife of fifty-five years and nine children.

Scalia’s death has already caused political chaos and derision as to who will appoint his successor and whether said appointment can be postponed until next year when the succeeding United States president takes office, even though President Obama is constitutionally beholden to choose the appointment and

[t]he historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.

It is no secret that Justice Scalia’s passing immediately furthered the divide between political parties, as Scalia was considered a staunchly conservative linchpin for many right-leaning opinions and his successor could tilt the direction of the Supreme Court. Interestingly, however, Scalia’s record on criminal law issues is quite diversified and does not prescribe to the values of only one political side.

Scalia was oftentimes a protector of Fourth Amendment rights, as evinced in several different opinions. In Kyllo v. United States, 533 U.S. 27 (2001), Scalia wrote the majority opinion which held that a thermal-imaging device used to detect amounts of heat emanating from a private home – which uncovered the defendant’s homegrown marijuana operation – constituted a search within the meaning of the Fourth Amendment. As Scalia writes,

in the case of the search of the interior of homes – the prototypical and hence most commonly litigated area of protected privacy – there is ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.

In other majority opinions penned by Scalia, he has evoked similar rhetoric, holding that GPS tracking in vehicles, United States v. Jones, 132 S.Ct. 945 (2012), as well as the use of drug sniffing dogs on a person’s front porch, Florida v. Jardines, 133 S.Ct. 1409, both constitute a search within the meaning of the Fourth Amendment.

Scalia has always stressed the manifest importance of the Sixth Amendment to all defendants. In the seminal case Blakely v. Washington, 542 U.S. 296 (2004), which held that the Sixth Amendment right to a jury trial prohibited judges from using facts that were not presented to a jury or admitted by the defendant to sentence a defendant above the maximum penalty, Scalia writes that the “right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”

A strong proponent of the Sixth Amendment’s Confrontation Clause, Scalia wrote for the majority in Crawford v. Washington, 541 U.S. 36 (2004), which held that defendants have the right to live testimony in order to cross-examine the witnesses against them. Scalia articulates that, “the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Similarly, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which held the defendant’s Sixth Amendment rights were violated when a forensic analyst’s lab report was admitted against him without him having the opportunity to cross-examine the individual who prepared the report, Scalia states

[a] forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis.

The above cases are just a few examples of the myriad of ways Scalia has shaped criminal law throughout his three decades on the bench. While the appointment of his successor is undoubtedly a hot button, partisan issue, Scalia’s own opinions, particularly on issues of criminal law, are that of a jurist with allegiance not to one political view but to one document – the Constitution.

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NY Court of Appeals Ducks a Decision on a Troubling Mens Rea Issue

POST WRITTEN BY: Professors Peter Widulski and Bennett L. Gershman

In April 2011, a man exited a subway train at a station in Manhattan and encountered a police sergeant and two other police officers. The officers reported that the man shouted obscenities and gesticulated at them and accused them of blocking his access to a stairway to an upper platform. They further reported that the man continued to swear at them as the sergeant followed him up the stairs. The sergeant reported that his intention in following the man – subsequently identified as Richard Gonzalez – was to issue Gonzalez a summons for disorderly conduct. While following Gonzalez, the sergeant noticed the handle of what appeared to him to be a knife in Gonzalez’s back pocket. After detaining Gonzalez on suspicion of disorderly conduct, the sergeant seized the item in Gonzalez’s back pocket and determined that it was a “gravity knife” because the blade in the handle snapped and locked into place upon flicking the wrist holding the handle. Under New York’s Penal Law it is a crime to possess a “gravity knife.”

The Manhattan District Attorney’s Office indicted Mr. Gonzalez for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (1), which, in conjunction with Penal Law § 265.01 (1), subjects a defendant to third degree criminal possession of a gravity knife, a felony, if the defendant was previously convicted of a crime. Prior to trial, the defendant moved to suppress evidence of his possession of the knife on the ground that his detention for disorderly conduct was unlawful, and therefore the seizure of the knife was the fruit of the unlawful arrest. The defendant’s motion was denied, and a jury subsequently convicted him of third degree criminal possession of a weapon. He was sentenced to 3 ½ to 7 years in state prison.

On appeal, a five-judge panel of the Appellate Division, First Department, unanimously held that the facts supported probable cause to arrest the defendant for disorderly conduct. People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013). The court further unanimously held that the only mens rea element the prosecution had to prove regarding possession of a gravity knife was that the defendant knew he possessed a knife “in general,” rejecting defendant’s argument that the prosecution needed to prove that he knew the knife he possessed had the characteristics of a gravity knife.

Leave to appeal to the Court of Appeals was granted, and on April 28, 2015, the Court of Appeals heard oral arguments in the Gonzalez case at the Judicial Institute on the campus of Pace Law School. Although the parties argued both the probable cause issue and the mens rea issue, it appeared to us that the Court’s questions focused primarily on the issue of whether the prosecution needed to prove that the defendant knew that he possessed a knife with the characteristics of the prohibited “gravity knife.” And to observers, it appeared that the Court was clearly troubled by this issue. Gonzalez’s appellate counsel informed the Court of the undisputed facts that Gonzalez had purchased the knife – a “Husky” brand utility knife which he used in his long-time work as an independent contractor – at a Home Depot store some five years earlier. Counsel argued forcefully, and several of the judges appeared to accept the argument – that fairness required the prosecution to prove that Gonzalez knew that the knife he lawfully purchased for his work had the characteristics of a gravity knife. Indeed, in watching the back and forth, we were reminded of the famous Supreme Court decision, Morissette v. United States, 342 U.S. 246 (1952), taught in every first-year law school class, in which Justice Robert Jackson wrote: “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”

In the face of the persistent and probing questions put to her by several of the judges, the prosecutor argued that the Legislature intended only that a person know simply that he possessed a knife, not whether the knife had the characteristics of a prohibited weapon. When Judge Eugene Pigott pressed her with hypothetical situations in which someone might possess quite innocently a lawfully purchased gravity knife, counsel stated that prosecutorial discretion might be used to avoid unfair prosecutions. Judge Pigott responded by noting that such discretion could lead to discriminatory results, based perhaps on a prosecutor’s consideration of the defendant’s race, or other improper considerations.

In a decision issued on June 15, 2015, the New York Court of Appeals unanimously reversed. But the Court reversed the Appellate Division not on the weapon possession issue but on the ground that “there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct.” Thus, the Court was able to avoid addressing the troubling issue regarding whether there is any mental culpability requirement for possession of a weapon, besides the requirement that the person know he possesses an object, which turns out to be a prohibited item.

Why courts avoid decisions on some issues really goes to the heart of the judicial process. Courts typically do not reach out to decide difficult-to-resolve questions if they do not have to. This is especially true when a court confronts issues relating to the legitimacy of a statute, or an interpretation of a statute that may break new ground. Clearly, the weapons issue in Gonzalez was a broader and much more difficult question than the detention issue, a purely legal question. The Court ducked the weapons issue knowingly, and probably with the knowledge that it would confront a similar issue again, and on a record making a resolution more likely.

The Black Box: Rapid Technological Change Post-Riley

POST WRITTEN BY: Steven Lapkoff (’16), J.D. Pace Law School

The fallout from the U.S. Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), has already changed police practices regarding the search and seizure of a cell phone that is held incident to an arrest. Before Riley, a police officer could search the cell phone of an arrestee for incriminating information or to expose the identities of accomplices. The Riley decision held that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. at 2495. In so doing, the court made clear that the vast quantities of personal information could only be searched when accompanied by a proper warrant.

However, recent advances in encryption technology are out-pacing the ability of courts and legislatures to adapt, increasingly putting the contents of smartphones outside the reach of the police and courts even when searches are authorized by warrant. The stated aim of this new technology is to “lock out the government,” regardless of the Riley decision.

Apple, maker of the iPhone, which uses the iOS software platform, has upgraded its encryption standard to the point that it claims is “unbreakable,” and the company does not have the ability to unlock a user’s phone even when requested to do so by government entities. Google, which distributes the competing Android platform to smartphone manufacturers, has also decided to encrypt its phones by default.

This has lead to a situation that the FBI has termed “The Black Box” or “Going Dark.” The argument goes, that if a smartphone cannot be accessed even under a lawful court order, then kidnapped children will go un-rescued and drug kingpins will go un-caught. Criminals’ secrets can then be stored worry-free, in these “black boxes” far from the reach of the police and courts. The FBI has gone so far as to demand that the tech companies implant “back door” access for police and courts to ensure continued access to users’ data.

The tech companies have responded that such scare scenarios are “inflammatory and inaccurate,” and that any “back doors” provided to the government would inevitably be exploited by opportunistic hackers. They point out that the “metadata,” data about who a person calls and texts from a smartphone, is accessible elsewhere, and that society’s expectations of privacy have fundamentally changed as more and more people shift a greater portion of their private lives onto their smartphones.

The editorial commentary in the media has come down strongly on the side of the technology companies. Wired further notes that “none of the criminal cases cited by [FBI Director] Comey meet that hypothetical because in real life those instances would be extremely rare and far outweighed by the clear public benefit of preventing the very real threat of a large-scale data breach that could affect millions of Americans.”

In the ongoing debate between security and privacy, the inexorable forward march of technology may leave the courts behind.

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