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SCOTUS in the Digital Age's Evolving Concepts of Privacy

Cell towers smallThe 4th Amendment and the Digital Age are set to collide again, this time in the on November 29 when the SCOTUS is to hear arguments in the case of Carpenter v. United States. At issue is the protection against warrantless searches and application of the “third-party” doctrine to cellular phone data. The stakes are high for everyone who has a cell phone, which means just about everybody in the country.


Carpenter brings to the Court the law enforcement practice of requesting various data from cellphone service providers, data which providers routinely keep and store. Law enforcement gets the data through an order under the Stored Communications Act, 18 U.S.C. 2703(d). The standard for issuing such orders is lower than the probable cause standard for search warrants. Orders to turn over data are granted if there are “specific and articulable facts showing that there are reasonable grounds to believe” the data are “relevant and material to an ongoing criminal investigation.” The lower standard is justified in part by the third-party doctrine, which reflects the principle that information voluntarily shared with another person isn’t protected by the 4th Amendment. The doctrine, developed in the 1970’s, works well when applied to things like bank records. But given the sheer volume and nature of the data collected by cellphone service providers (not to mention the purveyors of smartphone apps) the principle seems to many, including Justice Sotomayor, “ill-suited to the digital age.” United States v. Jones, 565 U.S. at 417 (Sotomayor, J., concurring).


The data at issue in Carpenter is cell-site-location- information, or CSLI. CSLI is a continuous record of the cell towers a cell phone connects to in order to send and receive information. It is maintained by the cell companies for a legitimate business purpose; analyzing these data helps the companies measure demand for cell service in certain geographic areas, which drives the decision whether to install additional towers or antennas to handle areas of high volume demand. With the proliferation of smartphones, and by necessity the towers and antennas to handle the massive amounts of data transmitted by them, the ability to locate a specific device has increased to “a level of accuracy that can approach that of GPS”. Amicus Brief of Electronic Frontier Foundation, et al.

Your smartphone is like a high school drama geek, constantly seeking the attention of the cell service, reaching out and connecting to cell towers without any input from you. CSLI includes not just the numbers you call or text, but also data transmitted by apps running in the background that continually send and receive data. Retailers have begun to use this location data to send special offers to targeted phones. Imagine standing in the beer aisle of your local supermarket when your phone alerts you to a text received from the store suggesting you try a specific brew, with the added enticement of $2 off a six-pack via a coupon sent to your phone. The shopper next to you, who didn’t download the supermarket’s app, doesn’t get the same text offer. The supermarket used CSLI to locate you down to the level of where in a store you are pausing to look at what’s on offer.

The argument that CSLI should be protected rests in part on the pervasive nature of the data collected, information that extends beyond our movement in public spaces into heretofore private associations. As Justice Sotomayor said, location information provides a “precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones.  “[A] person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.” United States v. Jones, 908 F. Supp. 2d 203 (D.D.C. 2012), quoted in Electronic Frontier Foundation et al. amicus brief.

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CollegesThe Future of Title IX on Campus

In one of those ironic twists of fate you can’t make up, Secretary of Education Betsy DeVos chose National Campus Safety Awareness Month to deliver a speech announcing her intention to do damage to, if not dismantle, the Title IX protections for victims of sexual assault on campus. Her announcement was expected. The administration and Secretary DeVos telegraphed their intention to roll back Title IX protections since Secretary DeVos was appointed.

For those of us who have fought against gender based violence, on and off campus, there’s a lot to dislike in Secretary DeVos’s speech and her plans to revamp the Office of Civil Rights (OCR) enforcement of Title IX. The Secretary’s plans are a call to general quarters for victim advocates, but it is only the first salvo in the battle preserve the civil rights of victims of sexual violence on campus.


The Department subsequently issued another “Dear Colleague” letter (DCL) formally withdrawing the policy statements in the 2011 DCL and the question-and-answer guidance issued in 2014. Secretary DeVos invoked the traditional rule making process, where rules are drafted, published, and a period of time is given for those interested to submit comments before a final rule is promulgated. On its face, this is not a bad thing. The 2011 DCL was justifiably criticized for not going through this regular order. But it is clear from her speech and subsequent policy statements that OCR will not make enforcement a priority during this process, potentially slow-walking Title IX to its death.

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Passcode Disclosure Redux - Foregone Conclusion

Computer locked


I heard from a number of readers about the last Factum Probans, many expressing frustration with password protected phones and encrypted digital data that may hold evidence in criminal cases. First of all, thanks to everyone who

wrote; keep those cards and letters (well, emails, really) coming. Second, there’s a widely-shared frustration about striking the appropriate balance between our right to privacy and the need to lawfully gather digital evidence. After reading the many emails I started questioning whether or not I was being overly pessimistic about law enforcement’s ability to reach that evidence.  So, I’ve taken another look, hopefully to give us an idea of how to strike that balance in a way to protect privacy while still lawfully gathering important evidence of wrong doing.


It remains true that most courts considering the issue have found that compelling one to reveal a passcode to unlock a smartphone (an oxymoron if ever there was one) or open an encrypted hard drive implicates the 5th Amendment’s protection against self-incrimination. That is, it’s a testimonial act forcing one to reveal facts relating to an offense or “sharing his thoughts and beliefs with the government.” United States v. Kirschner, 823 F.Supp.2d 665 (E.D.Mich. 2010). But it’s also true that there are circumstances that may tip the scales in favor of disclosure, circumstances that essentially establish that the disclosure of the passcode amounts to “telling the government what it already knows.” Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2104).

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A Gag Order of Sorts in a Highly Public Sexual Assault Casemedia scrum

A judge in Lansing, Michigan, issued a confusing order which may, or may not, limit the ability of sexual assault victims and their civil attorneys to speak out about sexual assault. The order brings up thorny issues surrounding social media, the power of the trial court to suppress speech, a defendant’s right to a fair trial, and a victim’s First Amendment rights. The order has potential repercussions beyond this one case, and even beyond any future cases involving the defendant.

The Cases Against Larry Nassar

Larry Nasser is facing multiple charges of sexual assault arising from his time as a physician at Michigan State University and as part of the medical staff of the USA Gymnastics national team. According to a timeline created by the Lansing State Journal, concerns about his Nasser’s conduct began to surface in 1997, during a time he was working at a gymnastics club near Lansing.

The following year Nasser allegedly began to sexually assault the six-year-old daughter of a family friend. The victim told her parents about the sexual assaults in 2004, but they did not report to police.

In 1998 a student-athlete at MSU reported “concerns” about Nasser’s conduct to coaching staff. This appears to be the first of several reports of sexual assault by student-athletes at MSU. In 2014 MSU conducted an investigation into Nasser’s conduct after a recent graduate alleged that he sexually assaulted her during a medical exam. The University cleared Nasser of any wrongdoing.

The dam burst in August of 2016 when the Indianapolis Star published the results of an investigation into USA Gymnastics’ handling of sexual assault complaints. About three weeks later former gymnast Rachael Denhollander reported to MSU Police that Nasser sexually assaulted her in 2000 during medical treatment for lower back pain. Denhollander was 15-years-old at the time of the alleged assaults.

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cellphone passcodeThe Constitution and Phone Passcode Disclosure

The Miami Herald recently reported about two men who were ordered by Florida state court judges to turn over the passcodes to unlock their iPhones. One of the men was sentenced to serve 180 days in jail for contempt for his failure to turn over a valid passcode to police investigating charges of child abuse. The second man asserted that he could not remember the passcode to his phone, which had been seized by police more than 10 months after his arrest. In that contempt proceeding the court agreed that there was no proof that the defendant remembered the passcode and refused to find him in contempt. A second defendant in that case is facing similar contempt proceedings for providing a passcode that didn’t work.

Securing the passcodes to locked smartphones is but one of many fronts in the justice system’s struggle to keep pace with advancing technology. From locked smartphones to encrypted files and messaging apps, courts, prosecutors and law enforcement agencies have struggled with striking the appropriate balance between privacy and the government’s interest in gathering evidence of criminal activity; a struggle fought applying 18th Century language to 21st Century technology.


Despite the ubiquity of smartphones, few cases have addressed the most basic Constitutional issues arising when law enforcement seeks to secure electronic evidence. What legitimate expectations of privacy does one have in electronic data? What is protected, and does it matter where that data is stored? How can law enforcement lawfully secure encrypted or passcode protected data?

The issue of compelling disclosure of passcodes is rooted in the 5th Amendments protection against self-incrimination. Is compelling a person to hand over   a   passcode simply   a  physical  act  like standing  in a  line-up or giving a voice sample, which doesn’t implicate the 5th Amendment at all, or is it more akin to providing the combination to locked safe, which is considered an impermissible order to reveal what is in one’s mind. Is it simply being compelled to hand over the key to a locked box properly seized, or is the very act of providing the code incriminating testimony?

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When I’m training about the neurobiology of trauma and the trauma informed response to sexual assault I often get the same question: “This is great information, but how do I use it in court?” Seems like a simple question, doesn’t it?

It turns out to be a bit more complicated. What testimony, what information, does the prosecutor want to use? Why does he or she want to use it? Do the Rules of Evidence allow it to come in?

brain Miranda Knox small


When we learn about the neurobiology of trauma there is a strong tendency to start with the premise that we want to give the jury exactly what we got – a full explanation of the neurobiology, complete with color pictures of a human brain with the important structures circled. Here’s the amygdala and here’s what it does.

Starting there leads inevitably to concluding the only way to get this evidence in is to call a researcher or neuroscientist as an expert witness. And that’s true, but only if the prosecutor wants or thinks she must have that level of detail. But this much detail isn’t necessary, and that complex testimony risks confusing the jury. There’s the practical reality, too, that witnesses of that caliber are simply unavailable to most of us.

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