1 00:00:00,160 --> 00:00:02,080 Speaker 1: It's been nearly two and a half years since the 2 00:00:02,120 --> 00:00:05,400 Speaker 1: Supreme Court ruled unanimously that the police need warrants to 3 00:00:05,400 --> 00:00:08,760 Speaker 1: search the cell phones of people they arrest. The justices 4 00:00:08,960 --> 00:00:11,799 Speaker 1: entered the digital age, you might say, by recognizing that 5 00:00:11,880 --> 00:00:15,640 Speaker 1: cell phones are portals to vast amounts of personal information 6 00:00:15,680 --> 00:00:19,120 Speaker 1: that people may no longer restore in their own homes. Still, 7 00:00:19,200 --> 00:00:24,000 Speaker 1: the decision left many open questions. The Electronic Communications Privacy 8 00:00:24,040 --> 00:00:26,720 Speaker 1: Act is stuck in the eighties, and so states are 9 00:00:26,760 --> 00:00:30,920 Speaker 1: now stepping up due to congressional gridlock. Last year, California 10 00:00:30,960 --> 00:00:33,280 Speaker 1: passed its own update to the e c p A, 11 00:00:33,520 --> 00:00:36,960 Speaker 1: and New Mexico will be introducing a similar bill in January. 12 00:00:37,479 --> 00:00:40,519 Speaker 1: Our guest is Robert Min's, a former federal prosecutor and 13 00:00:40,600 --> 00:00:44,199 Speaker 1: head of the white collar and Criminal Investigations practice at mcarter. 14 00:00:44,360 --> 00:00:49,279 Speaker 1: In English, Bob, the Supreme Court's Riley decision was hailed 15 00:00:49,360 --> 00:00:53,159 Speaker 1: as a victory for privacy rights in the digital age. 16 00:00:53,560 --> 00:00:57,120 Speaker 1: How much did it leave out so much that so 17 00:00:57,200 --> 00:01:01,440 Speaker 1: that the states now have to step in well. The 18 00:01:01,720 --> 00:01:06,640 Speaker 1: Riley decision, which was in two thousand fourteen, did represent 19 00:01:06,760 --> 00:01:10,040 Speaker 1: the first time that the Supreme Court dipped its toe 20 00:01:10,040 --> 00:01:14,039 Speaker 1: in the water as to how the digital age would 21 00:01:14,120 --> 00:01:18,280 Speaker 1: intersect with the prior case law on search incident too arrest. 22 00:01:18,319 --> 00:01:20,200 Speaker 1: And it was, really, as you said, the first time 23 00:01:20,520 --> 00:01:25,040 Speaker 1: that court's acknowledged just how much information is actually stored 24 00:01:25,080 --> 00:01:27,240 Speaker 1: on people's cell phones. In fact, the court wrote that 25 00:01:27,280 --> 00:01:32,040 Speaker 1: modern cell phones are not just another technological convenience, with 26 00:01:32,240 --> 00:01:35,640 Speaker 1: all that that they contain, they may reveal basically the 27 00:01:35,680 --> 00:01:39,000 Speaker 1: privacies of all people's lives. And so it really opened 28 00:01:39,040 --> 00:01:42,679 Speaker 1: the door and said that law enforcement could not could 29 00:01:42,720 --> 00:01:46,119 Speaker 1: not go in and reviewed data on somebody's cellphone without 30 00:01:46,200 --> 00:01:49,080 Speaker 1: first obtaining a warrant. But that is all that it's said. 31 00:01:49,360 --> 00:01:52,360 Speaker 1: And since that time, states have been waiting for Congress 32 00:01:52,400 --> 00:01:55,760 Speaker 1: to step in and pass laws consistent with that ruling. 33 00:01:56,040 --> 00:01:58,280 Speaker 1: They haven't done that, and as a result, we've seen 34 00:01:58,360 --> 00:02:01,760 Speaker 1: states across the country taking the lead themselves and trying 35 00:02:01,760 --> 00:02:05,640 Speaker 1: to protect the privacy interests of its own citizens. So, Bob, 36 00:02:05,680 --> 00:02:08,120 Speaker 1: what kind of approaches are states taking as they look 37 00:02:08,160 --> 00:02:11,960 Speaker 1: at this issue. Well, there's been a whole series of 38 00:02:12,080 --> 00:02:15,160 Speaker 1: laws that have been introduced since the Riley decision. Not 39 00:02:15,360 --> 00:02:19,639 Speaker 1: all impose measures limiting of the collection, sharing, or storage 40 00:02:19,639 --> 00:02:22,880 Speaker 1: of data types all information that Congress has yet to 41 00:02:22,880 --> 00:02:25,600 Speaker 1: step in and try to address, and it really is 42 00:02:25,760 --> 00:02:30,200 Speaker 1: a whole range of issues, including, for example, rights that 43 00:02:30,360 --> 00:02:34,800 Speaker 1: job applicants may have in their Facebook and and other 44 00:02:35,680 --> 00:02:38,840 Speaker 1: private social media accounts. Many people, i think run into 45 00:02:38,880 --> 00:02:42,240 Speaker 1: circumstances where potential employers demand that they share access to 46 00:02:42,280 --> 00:02:45,239 Speaker 1: those social media accounts when applying for a job. A 47 00:02:45,360 --> 00:02:47,639 Speaker 1: number of states have stepped in and said that that's 48 00:02:47,680 --> 00:02:51,880 Speaker 1: not appropriate and that information ought to remain private. Um. 49 00:02:52,040 --> 00:02:55,240 Speaker 1: There's been also a number of cases that have tried 50 00:02:55,280 --> 00:02:59,880 Speaker 1: to bring into the modern age the Electronic Communications Privacy Act, 51 00:03:00,120 --> 00:03:03,240 Speaker 1: which is now thirty years old and was originally created 52 00:03:03,320 --> 00:03:08,560 Speaker 1: to extend protections against unconstitutional wire taps to digital communications, 53 00:03:08,600 --> 00:03:12,960 Speaker 1: but that really has not addressed the modern circumstance now 54 00:03:13,240 --> 00:03:16,480 Speaker 1: where people use cloud based services and under the law, 55 00:03:16,520 --> 00:03:19,240 Speaker 1: believe it or not, there still is a rule that 56 00:03:19,320 --> 00:03:22,399 Speaker 1: says any email stored on a third party server, which 57 00:03:22,400 --> 00:03:25,440 Speaker 1: would include for example, a Gmail or Hotmail account, if 58 00:03:25,440 --> 00:03:29,160 Speaker 1: it's stored for more than it's considered abandon and subject 59 00:03:29,240 --> 00:03:32,520 Speaker 1: to collection by law enforcement without a warrant. So California 60 00:03:32,560 --> 00:03:34,480 Speaker 1: has already passed a law to try to update this, 61 00:03:34,920 --> 00:03:39,600 Speaker 1: and there's now legislation pending in Minnesota, New Mexico, New York, Virginia, 62 00:03:39,880 --> 00:03:41,960 Speaker 1: on a number of other states, all trying to bring 63 00:03:42,360 --> 00:03:47,200 Speaker 1: into the modern age this concept of protecting stored data. Bob, 64 00:03:47,840 --> 00:03:53,480 Speaker 1: These third party providers Google, Facebook, Verizon, Twitter, even we 65 00:03:53,520 --> 00:03:56,160 Speaker 1: saw Apple case or seemed to be in the middle 66 00:03:56,200 --> 00:03:59,880 Speaker 1: between the users and the government. Do these state laws 67 00:04:00,120 --> 00:04:04,800 Speaker 1: address the problems that they may have. Well, I think 68 00:04:04,800 --> 00:04:07,640 Speaker 1: they address the problems, and they probably create new ones 69 00:04:07,720 --> 00:04:10,680 Speaker 1: because all of these types of providers you're talking about 70 00:04:10,680 --> 00:04:15,640 Speaker 1: obviously have have customers all over the country, and what 71 00:04:15,680 --> 00:04:19,520 Speaker 1: we're seeing is now a patchwork of laws that may 72 00:04:19,600 --> 00:04:22,280 Speaker 1: or may not be consistent with one another that applies 73 00:04:22,360 --> 00:04:26,039 Speaker 1: to customers in these various states. So if you're a 74 00:04:26,120 --> 00:04:28,680 Speaker 1: Google or an Apple and you operate all over the 75 00:04:28,800 --> 00:04:30,960 Speaker 1: United States, it really creates a headache for you in 76 00:04:31,040 --> 00:04:35,080 Speaker 1: terms of the privacy interests of your customers, Bob. Should 77 00:04:35,120 --> 00:04:37,839 Speaker 1: there be a distinction in the way states or the 78 00:04:37,839 --> 00:04:41,760 Speaker 1: federal government or we approach questions relating to say, the 79 00:04:41,800 --> 00:04:45,520 Speaker 1: information you store on your phone versus the information you're 80 00:04:45,520 --> 00:04:48,159 Speaker 1: putting on something like Facebook where you're sharing it with 81 00:04:48,200 --> 00:04:52,839 Speaker 1: a lot of people. Well, certainly the information that is 82 00:04:52,920 --> 00:04:58,240 Speaker 1: on your phone creates a more compelling case for privacy rights. 83 00:04:58,279 --> 00:05:02,279 Speaker 1: I mean, these days, pe both are almost always within 84 00:05:02,680 --> 00:05:05,600 Speaker 1: five or ten feet of their smartphones. They never leave 85 00:05:05,640 --> 00:05:08,440 Speaker 1: them home. They have all kinds of information on there 86 00:05:08,680 --> 00:05:12,360 Speaker 1: that's a highly personal nature, and you can essentially reconstruct 87 00:05:13,040 --> 00:05:16,000 Speaker 1: almost somebody's entire life based upon the information they have 88 00:05:16,080 --> 00:05:19,120 Speaker 1: on their cell phone. Um, the information they post on 89 00:05:19,160 --> 00:05:22,160 Speaker 1: Facebook is a little bit different because it's obviously available 90 00:05:22,400 --> 00:05:24,559 Speaker 1: to some extent to the public. But I think people 91 00:05:24,600 --> 00:05:28,000 Speaker 1: who have Facebook accounts would argue that they limit those 92 00:05:28,400 --> 00:05:32,000 Speaker 1: to only people who they have accepted as friends, and 93 00:05:32,120 --> 00:05:34,520 Speaker 1: is certainly not the type of information that they necessarily 94 00:05:34,560 --> 00:05:37,039 Speaker 1: want to share with an employer or should be forced 95 00:05:37,040 --> 00:05:41,160 Speaker 1: to share with an employer. Bob, there are certain exceptions 96 00:05:41,560 --> 00:05:46,960 Speaker 1: to this, and one is getting a permission from the 97 00:05:47,000 --> 00:05:50,479 Speaker 1: person and sometimes the police can convince the person to 98 00:05:50,520 --> 00:05:56,719 Speaker 1: give permission, And the other is emergency exception. Explain that, sure, well, 99 00:05:56,960 --> 00:05:59,960 Speaker 1: the line of cases that really comes into place here 100 00:06:00,080 --> 00:06:03,920 Speaker 1: or is an exception to the fourth Amendments of Prohibition 101 00:06:04,000 --> 00:06:06,560 Speaker 1: upon on reasonable searches and seizures, And it goes back 102 00:06:06,560 --> 00:06:09,120 Speaker 1: to the line of cases that talk about search incident 103 00:06:09,200 --> 00:06:11,919 Speaker 1: to arrest and that really deals with the concept of 104 00:06:11,920 --> 00:06:15,280 Speaker 1: when police officers make an arrest of an individual, they 105 00:06:15,360 --> 00:06:19,960 Speaker 1: are they have historically been permitted to conduct searches in 106 00:06:20,080 --> 00:06:22,159 Speaker 1: order to protect their own safety. So they want to 107 00:06:22,160 --> 00:06:25,120 Speaker 1: make sure that an individual doesn't have a concealed weapon 108 00:06:25,200 --> 00:06:27,000 Speaker 1: on them, for example, and that's been held to be 109 00:06:27,400 --> 00:06:31,039 Speaker 1: entirely constitutional. And the other is to prevent the concealment 110 00:06:31,160 --> 00:06:34,440 Speaker 1: or the destruction of evidence. So, for example, they can 111 00:06:34,520 --> 00:06:37,440 Speaker 1: search somebody, pat them down, and if it turns out 112 00:06:37,440 --> 00:06:39,960 Speaker 1: that in their pocket they're concealing some heroin or some 113 00:06:40,040 --> 00:06:43,640 Speaker 1: other illegal narcotic, that can also be seized incident to arrest. 114 00:06:44,040 --> 00:06:46,240 Speaker 1: What what these cases are sort of implicated is the 115 00:06:46,240 --> 00:06:49,880 Speaker 1: concept of when they take that cell phone from somebody, UM, 116 00:06:50,000 --> 00:06:53,160 Speaker 1: is that something that falls into those two categories. It 117 00:06:53,240 --> 00:06:56,200 Speaker 1: certainly doesn't have anything to do with the officers safety necessarily, 118 00:06:56,800 --> 00:07:00,359 Speaker 1: UH and it doesn't necessarily implicate the kind supt of 119 00:07:00,400 --> 00:07:04,440 Speaker 1: destruction of evidence. Although UM government prosecutors have made both 120 00:07:04,440 --> 00:07:08,599 Speaker 1: of those arguments and trying to argue that searches without 121 00:07:08,920 --> 00:07:12,960 Speaker 1: a warrant are permissible. The really the only exception here 122 00:07:13,040 --> 00:07:16,960 Speaker 1: that I think still exists is if there is UH 123 00:07:17,000 --> 00:07:20,280 Speaker 1: an immediate threat to public safety. For example, if there 124 00:07:20,320 --> 00:07:24,160 Speaker 1: is some idea that there may be some imminent harm 125 00:07:24,640 --> 00:07:26,960 Speaker 1: as a result of some kind of terror attack, or 126 00:07:27,200 --> 00:07:30,120 Speaker 1: if an individual was abducted and they believe that that 127 00:07:30,200 --> 00:07:32,560 Speaker 1: information might be on a cell phone. Those would be 128 00:07:32,600 --> 00:07:37,239 Speaker 1: exceptions that I think would still withstand a warrantless search. Bob. 129 00:07:37,880 --> 00:07:40,760 Speaker 1: We have states now experimenting with different approaches, and we'll 130 00:07:40,760 --> 00:07:42,400 Speaker 1: see what they come up with. But are we better 131 00:07:42,440 --> 00:07:45,600 Speaker 1: off having that happen or should the Should the Congress 132 00:07:45,640 --> 00:07:49,239 Speaker 1: step in here? I think it'd be best for everybody 133 00:07:49,280 --> 00:07:51,560 Speaker 1: if the Congress would step in, and I think even 134 00:07:51,560 --> 00:07:54,679 Speaker 1: the states recognize that. Um. I think what we're seeing 135 00:07:54,680 --> 00:07:58,120 Speaker 1: here are states taking the lead in this, not with 136 00:07:58,200 --> 00:08:00,800 Speaker 1: the expectation that not that necessary early at the end 137 00:08:00,840 --> 00:08:03,760 Speaker 1: of the day, the state laws will be the law 138 00:08:03,800 --> 00:08:06,120 Speaker 1: of the land for their states, but perhaps to nudge 139 00:08:06,200 --> 00:08:09,240 Speaker 1: Congress to step in here to provide some uniformity in 140 00:08:09,240 --> 00:08:09,800 Speaker 1: these laws.