Retention Periods of Major Cellular Service Providers

Fourth Amendment Future: Virtual Searches

Susan Brenner, a law professor, has written a law review to be published later this year. The abstract:

This article examines the 4th Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.

The text of the full article is available here. The topic raises interesting and alarming questions about the future of the Fourth Amendment in light of the information age in which we now live.

How to Check Your Cell Phone for Bugs

British information security experts MWR InfoSecurity uncovered a flaw in the Palm Pre which allows for the bugging of conversations "anywhere in the world" while a general flaw in Android allows for the nicking of user passwords through the internet connection. Full article here.

Worried your cell phone might be bugged? Here is a step by step guide on how to debug it. A few simple tips to avoid cell phone bugging: don't allow people to use your phone, bugging apps can be downloaded in seconds, and don't allow leave your phone unattended-the SIM card can be switched out in seconds with a card that will allow listening in.

New Blog "Intersection Between Criminal Law and Emerging Technology

Sentencing Law and Policy drew attention to "Stockycat", a strange name for a cool blog on the intersection between criminal law and emerging technology. Recent posts include Fourth Amendment implications of cell phone searches and GPS trackers on cars. The GPS post discusses the recent DC Circuit case of United States v. Maynard in which the DC Circuit held that GPS trackers could violate a person's reasonable expectation of privacy. Contrast with the Ninth Circuit's holding on the topic of GPS trackers in United States v. Pinedo-Moreno. (blogged about here). Given the focus on emerging technology, whether it be in the Fourth Amendment context or in data collection and analysis, a good resource is helpful to keep track of technology and its implications in criminal investigations.

National White Collar Crime Center

Need to brush up on your cell phone data collection? preserve electronic data for court presentation? collecting and analyzing data for financial crime case? A good source of training and information is the National White Collar Crime Center. They offer on-line courses that look to be offered to law enforcement and defense investigators alike.

D.C. Circuit holds that GPS Monitoring is a Fourth Amendment Search

As reported at the Volokh Conspiracy, this week the D.C. Circuit held that government use of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search” when conducted over a long-term period, in this case a one month period of time. The case is United States v. Maynard. In Maynard, co-defendant Jones was convicted in a cocaine conspiracy which relied upon investigation resulting from the twenty-four hour a day monitoring of Jones's jeep over the period of one month. The D.C. Circuit held that the use of the GPS tracking device violated co-defendant Jones reasonable expectation of privacy:

Jones argues the use of the GPS device violated his ‘reasonable expectation of privacy,’ Katz, . . . and was therefore a search subject to the reasonableness requirement of the Fourth Amendment. Of course, the Government agrees the Katz test applies here, but it argues we need not consider whether Jones’s expectation of privacy wasreasonable because that question was answered in United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held the use of a beeper device to aid in tracking a suspect to his drug lab was not a search. As explained below, we hold Knotts does not govern this case and the police action was a search because it defeated Jones’s reasonable expectation of privacy.” Id. at 16 (Katz full cite omitted).

This decision is in conflict with the Ninth Circuit's opinion in United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir, 2010). For more detailed discussion on how to use as a practitioner, see the Ninth Circuit Blog. The Ninth Circuit Blog article also contains an interesting discussion on the use of cell phone towers for pinging that is easier than ever before to use as a "tracking device". It is becoming routine that federal law enforcement are using cell-phone location data through sealed applications. (Further reading here).
When working this type of case as an Investigator, it is important to get discovery that includes the type of device used, how the device stores the information, whether there was a warrant application that included a time limit, and how the device works (e.g. whether the device can be remotely accessed or whether it has to be retrieved and manually downloaded) so that the investigator is armed with all information possible to assist in a motion to suppress.

Florida Sheriff States He Will Record Inmate Calls To Public Defender

The warnings that we so often give clients..."Don't say too much on the phone" has taken a dangerous turn with this story from Florida. The Polk County Sheriff stated that he intended to incorporate a policy change based upon a case from the Florida Supreme Court that held that an inmate does not have an expectation of privacy if there is a warning that the call might be recorded. Full story here

The Sheriff's Office had exempted lawyer-client calls from its general policy of monitoring and recording jail telephone calls. Lawyers could register their telephone numbers so the calls wouldn't be monitored.
But Sheriff Grady Judd said a recent decision of the Florida Supreme Court stated inmates have no reasonable expectation of privacy if they're warned that the calls are being recorded.
"The bottom line is this is the law," Judd said. "We are enforcing the law. We didn't make this law. The courts have decided it."
A letter dated May 27 was sent to explain the agency's policy change.
"I could have done it immediately, but I gave them 30 days' notice so they could prepare for this," he said.
Judd said he was seizing another avenue to gather evidence to use against defendants.
"I am going to send the best information I can to the state attorney for us to prosecute criminals that are in our jail system," he said.

The Public Defender for the County noted the added costs to an already burdened system with the policy given that public defenders would no longer be able to discuss a client's case over the phone, increasing trips to the jail:

Public Defender J. Marion Moorman....[said] the policy change will waste precious resources and puts further demands on a burdened criminal justice system.
"Every year, it seems like there is just one more hurdle placed in the way of getting our job done efficiently and effectively," he said. "This, I feel, is just totally ridiculous."
Moorman said his office is still analyzing what it might cost to stop accepting telephone calls from the jail.

Discovery and Despair

Hyperbole and a Half captures the way the brain feels after a long day dealing with (sometimes) steamroller of government. Using I2 the clever analyst can make a cartel out of any cell phone data. Fun(!)

In January, 2010, Attorney General Eric Holder released the Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery. Recently in the Ninth Circuit in United States v. Stever Stever sought to present a defense on the ground that the marijuana growing operation found on an isolated corner of his mother’s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. The Ninth Circuit considered whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever’s rights under Brady v. Maryland, . . . and Stever’s Sixth Amendment right to make a defense.” Id. at *1. The Court held that the discovery violations presented Stever from investigating, and thereby precluding a whole line of defense.
This is an issue of policy given that there is talk to amend Rule 16's Discovery Obligation. The Judicial Conference Advisory Committee on the Rules of Criminal Procedure, chaired by Judge Tallman of the Ninth Circuit, is debating a change to Rule 16, which governs discovery. Thus far DOJ as rejected the amendment. Discovery is important to a sense of fair justice. It is a good time to be arguing the government's discovery obligations aggressively and putting together defense investigation that covers the data analysis.

FBI's "lnvestigative Kiosks" Allow Quick Data Extraction from Cell Phones

From Evidence Technology Magazine:

It seems that every day, manufacturers add features to the garden-variety cell phone that make these mobile devices increasingly valuable as items of evidence. Text messages, call logs, e-mails, photographs, videos-all of this data and more can be found on many cell phones today.

To help local, state, and federal law enforcement deal with an increased demand in analyzing cell-phone data, the FBI has been launching Cell Phone Investigative Kiosks (CPIKs) in FBI Field Offices and Regional Computer Forensics Laboratory (RCFL) locations across the country. The CPIK allows users to extract data from a cell phone, put it into a report, and burn the report onto a CD or DVD in as little as 30 minutes.

Kiosk users only need to have some familiarity with computers and are required to take a one-time only, hour-long training course. Assistance with the kiosks is also available on site at CPIK locations.

Each CPIK has two components: 1) a cell phone examination system that contains software and the necessary cables to download data; and 2) a photographic system that enables a user to take pictures of a cell phone's screen.

Users of the CPIK are able to:

• Copy data from a cell phone to a computer hard drive
  
• Examine data in a report format on the computer screen
  
• Copy the report onto a portable device (such as a CD or DVD)
  
• Copy the photographs onto a portable device (such as a CD or DVD)

While the CPIK is intended to be a preview tool-not equivalent to a full-scale cell-phone examination such as that performed by a certified examiner-any evidence produced using the tool is admissible in a court of law.

Non-FBI personnel may access the kiosks at their local RCFL. For CPIKs located at an FBI Field Office, non-FBI personnel must have an FBI escort at all times. To locate a CPIK near you and to learn more about the program, go to: www.rcfl.gov

New I-Phone Found after Lost In Bar-House of Finder Searched

There are rumors that an I-phone was found in California in a bar. The phone was allegedly disguised as a regular 3-G I-Phone but has new features like a front camera, new operating system, improved housing, and most significantly, a micro-SIM card. As the story goes, a developer was out drinking in a bar near Apple's campus and left it in the bar. Another guy picked it up, realized what it was and Gizmodo bought it. Videos and information available from Gizmodo. Apple allegedly remotely wiped the phone using mobile me technology and the lucky "finder" was served with a search warrant where computer equipment was seized.

More from Fourth Amendment.com

To consider some of the ethical dilemma involved between Apple wishing to keep their products under wraps and the freedom of the press in exposing the new product check out this excerpt from Los Angeles Times (full article here):

[i]n said beer garden, the young software engineer loses a top-secret prototype of a next-generation iPhone. A stranger finds the phone. The stranger sells the phone to a tech blogger for $5,000. And the blogger posts his assessment of the new (and possibly improved, though that's not so clear) iPhone.

Now here comes the neat punch line … only there isn't one, because now the tech blog Gizmodo.com's story about how it obtained the missing iPhone has turned into a giant kerfuffle. Pitted against each other in this expose-that-doesn't-expose-that-much are Apple Inc., with its imperative of maintaining its property and trade secrets, and Gawker Media, parent of Gizmodo, with its imperative of exploring a company and a product of great public interest.


So who deserves our support: condescending and self-congratulatory Gawker or controlling and obsessively secretive Apple? It's a calculation made all the harder because the new media outlet introduced the oft-corrupting dollar into the journalism equation.

Still, what one (business)man sees as receiving stolen property, another man sees as a robust expansion of freedom of information. We're all the better off when the law bends toward support of the latter, even if it tends to forgive the former.

Supreme Court Justice John Paul Stevens wrote in a 2001 majority opinion (in Bartnicki v. Vopper) that a radio host could not be held legally liable for broadcasting phone recordings, even though the source of the recordings obtained them illegally. "A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," Stevens declared.

It may not be a matter as weighty as war or domestic tranquillity, but the fate of Cupertino, Calif.-based Apple and its products is hugely important to millions of people.

Gizmodo and many other websites obsess on the company's every move. So do Wall Street investors who have turned Apple into a $238-billion company, based on its stock value. So it comes as no surprise that one of Gizmodo's bloggers, Jason Chen, would jump at the chance to get a look at the next iteration of the fantastically popular iPhone.

TigerText

TigerText allows you to delete text messages from both user and sender's phones. This message will self destruct in five seconds.

Like KickNotes, this app available for I-Phone and Blackberry is another in a line of developing software developing as countersurveillance in the digital world where people are demanding more privacy for their data.

Password Protected Phone: Reasonable Expectation of Privacy?

A California Court in People v. Taylor is considering whether police should have applied for a warrant prior to bypassing the password on an I-Phone and searching the data contained therein. The Electronic Frontier Foundation has asked a judge to suppress all evidence collected from the phone as a result of the warrantless search, and to quash the warrant that was issued in part on the basis of the information illegally accessed on the phone. The phone was seized as part of an arrest; back at the police station, officers worked to bypass the phone's security and cracked the code. After police realized that the data contained in the phone was more extensive than originally anticipated, officers then applied for a warrant. The case is scheduled to be argued on February 18th in Riverside, California.

Given the data capacity of smart phones, people store far more than just numbers in a telephone. Private communications, text messages, emails, notepads, internet favorites, contacts, and the like are just some of the things people store in their phones. The phone involved in this case had the added "expectation of privacy" manifested in the password protection feature(!) This case is one in a trend of cell-phone privacy issues that are cropping up more and more as cell phones are increasingly woven into the fabric of our lives.

While We are on the Topic of Wiretapping...

The Department of Justice released a report this week about the FBI’s Communications Analysis Unit (CAU)which found "shocking" violations, including embedded telecom employees providing customer phone records in response to post-it notes.

Post it notes?

Judge Tosses NSA Spy Case-

The Electronic Frontier Foundation intends on appealing a ruling issued earlier this week in San Francisco by U.S. District Judge Vaughn Walker. The Judge dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails. The lawsuits accuse the government of teaming with the nation’s telcom companies to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

Read More here

FBI Catch the Call? Subpoena the Records

FBI broke law for years in phone record searches...(The Washington Post reports full article here.)

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.
The FBI's general counsel says Director Robert S. Mueller III did not learn about the unlawful collection of phone records until 2006, when they ended.

Additional documents here.

Boston Police Fight Cellphone Recording

Witnesses who thought that a police arrest was getting out of hand started to audio tape the incident on their cellphones and are now charged with illegal surveillance.

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.
“One of the officers asked me whether my phone had audio recording capabilities,’’ Glik, 33, said recently of the incident, which took place in October 2007. Glik acknowledged that it did, and then, he said, “my phone was seized, and I was arrested.’’
The charge? Illegal electronic surveillance.

full article here

Ohio Supreme Court Holds Cell Phone is Private-Warrant Required

Ever left your phone somewhere only to find your friends have sent or read your text messages or worse? The Ohio Supreme Court ruled this month that the police need a warrant to search a cellphone. The court rightly recognized that cellphones hold a wealth of personal information and that it is reasonable for people to have a expectation of privacy in their phone. See State of Ohio v. Smith (available here). The New York Times carried an interesting op-ed piece excerpted here. (full article here).

Searches generally require warrants, but courts have carved out limited categories in which they are not needed. One of these is that police officers are allowed, when they arrest people, to search them and the area immediately surrounding them, as well as some kinds of containers in their possession.

When the police arrested Antwaun Smith on drug charges they seized his cellphone and searched it, examining his call records. The police did not have a warrant or the consent of Mr. Smith.

The Ohio Supreme Court ruled this month, by a 4-to-3 vote, that the search violated the Fourth Amendment’s protection against unreasonable search and seizure. Rather than seeing a cellphone as a simple closed container, the majority noted that modern cellphones — especially ones that permit Internet access — are “capable of storing a wealth of digitized information.”

This is information, the court said, for which people reasonably have a high expectation of privacy, and under established Fourth Amendment principles, police officers must get a search warrant before they can look through call logs or examine other data. The court wisely decided that it made no sense to try to distinguish among various kinds of cellphones based on what specific functions they have. All cellphones, the court said, fall under the search warrant requirement.

Cricket Cell Phone Subpoena Compliance

Custodian of Records
Attention: Subpoena Compliance
Cricket Communications/Leap Wireless
10307 Pacific Center Court
San Diego, California 92121
Fax: (858) 882-9237
Voice (858) 882-9301

Submission options: Pen register/trap & trace or Wiretap, email or scan to: Intercept@cricketcommunications.com

Other process: email or scan to: Compliance@cricketcommunications.com. If no email, request may be faxed to: (858) 882-9237. Response time approx 2-3 weeks. A fee may be assessed for production of requested information.

Cool Federal Evidence Review Site/Bad Case: Anonymous Cell Phone Caller Evidence Admissible?

The Sixth Circuit case of United States v. Rodriguez-Lopez, _ F.3d _ (6th Cir. May 6, 2009) considered this hearsay puzzle: is the fact that anonymous callers placed a call to a defendant’s cell phone and asked about the availability of heroin excludable as hearsay in a trial for conspiring to distribute heroin? Or could the calls be admitted as circumstantial evidence of an action from which it could be inferred that the defendant dealt in the heroin trade? In contrast to the court in Wright, the Sixth Circuit explained that under Federal Rule of Evidence (FRE) 801(c) the statements were admissible as non-hearsay since the statements were not offered to prove the truth of the matter asserted.

Mr. Rodriguez-Lopez phone was ringing off the hook when DEA Agents decided to answer the phone. Each time the phone rang, according to DEA Agents, the caller requested heroin. The Sixth Circuit reversed the district court holding that the calls were inadmissible hearsay. Here is an example of the madness:

“But whatever their grammatical mood, the statements are not hearsay because the government does not offer them for their truth. Indeed, if the statements were questions or commands, they could not … be offered for their truth because they would not be assertive speech at all. They would not assert a proposition that could be true or false....And further on..."[t]he government offers them, not for their truth, but as evidence of the fact that they were made. The fact that Rodriguez received ten successive solicitations for heroin is probative circumstantial evidence of his involvement in a conspiracy to distribute heroin.”

This posting, at FederalEvidence.com has the Sixth Circuit's analysis regarding this hearsay issue. Federal Evidence.com is a handy collection of all things evidence including the evidence blog.

Getting back to the cell phone it begs the question: If the calls aren't offered for the truth of the matter asserted, then what would be the relevance of the statements under FRE 402 and 403. If the anonymous caller asked for a pizza instead of heroin, it wouldn't be relevant. Only because it shows propensity to commit the crime of delivery is it offered, and that is precisely why it is improper FRE 404(b) evidence and should not be permitted under FRE 403.

When doing investigation dealing with this type of evidence, make sure whether they can show the phone actually belongs to your client.

Federal Judge Enjoins Penn "Sexting" Prosecution

A Federal Judge on Monday barred a Pennsylvania Prosecutor from filing charges of child pornography against three teenage girls that were caught with explicit pictures of themselves. The ACLU filed a lawsuit on the girls' behalf, arguing that the proposed prosecution violated freedom of speech and parental rights. More details from Reuters article:

By Jon Hurdle

PHILADELPHIA, March 30 (Reuters) - A U.S. judge on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.

The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.

"The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said.

The case has attracted national attention and revolves around the growing practice among teens of "sexting," a play on the term texting, in which nude or semi-nude photos are sent on cell phones or posted on the Internet.