WEBVTT - New Mexico Considers Warrants for Digital Evidence (Audio) 0:00:00.160 --> 0:00:02.080 It's been nearly two and a half years since the 0:00:02.120 --> 0:00:05.400 Supreme Court ruled unanimously that the police need warrants to 0:00:05.400 --> 0:00:08.760 search the cell phones of people they arrest. The justices 0:00:08.960 --> 0:00:11.799 entered the digital age, you might say, by recognizing that 0:00:11.880 --> 0:00:15.640 cell phones are portals to vast amounts of personal information 0:00:15.680 --> 0:00:19.120 that people may no longer restore in their own homes. Still, 0:00:19.200 --> 0:00:24.000 the decision left many open questions. The Electronic Communications Privacy 0:00:24.040 --> 0:00:26.720 Act is stuck in the eighties, and so states are 0:00:26.760 --> 0:00:30.920 now stepping up due to congressional gridlock. Last year, California 0:00:30.960 --> 0:00:33.280 passed its own update to the e c p A, 0:00:33.520 --> 0:00:36.960 and New Mexico will be introducing a similar bill in January. 0:00:37.479 --> 0:00:40.519 Our guest is Robert Min's, a former federal prosecutor and 0:00:40.600 --> 0:00:44.199 head of the white collar and Criminal Investigations practice at mcarter. 0:00:44.360 --> 0:00:49.279 In English, Bob, the Supreme Court's Riley decision was hailed 0:00:49.360 --> 0:00:53.159 as a victory for privacy rights in the digital age. 0:00:53.560 --> 0:00:57.120 How much did it leave out so much that so 0:00:57.200 --> 0:01:01.440 that the states now have to step in well. The 0:01:01.720 --> 0:01:06.640 Riley decision, which was in two thousand fourteen, did represent 0:01:06.760 --> 0:01:10.040 the first time that the Supreme Court dipped its toe 0:01:10.040 --> 0:01:14.039 in the water as to how the digital age would 0:01:14.120 --> 0:01:18.280 intersect with the prior case law on search incident too arrest. 0:01:18.319 --> 0:01:20.200 And it was, really, as you said, the first time 0:01:20.520 --> 0:01:25.040 that court's acknowledged just how much information is actually stored 0:01:25.080 --> 0:01:27.240 on people's cell phones. In fact, the court wrote that 0:01:27.280 --> 0:01:32.040 modern cell phones are not just another technological convenience, with 0:01:32.240 --> 0:01:35.640 all that that they contain, they may reveal basically the 0:01:35.680 --> 0:01:39.000 privacies of all people's lives. And so it really opened 0:01:39.040 --> 0:01:42.679 the door and said that law enforcement could not could 0:01:42.720 --> 0:01:46.119 not go in and reviewed data on somebody's cellphone without 0:01:46.200 --> 0:01:49.080 first obtaining a warrant. But that is all that it's said. 0:01:49.360 --> 0:01:52.360 And since that time, states have been waiting for Congress 0:01:52.400 --> 0:01:55.760 to step in and pass laws consistent with that ruling. 0:01:56.040 --> 0:01:58.280 They haven't done that, and as a result, we've seen 0:01:58.360 --> 0:02:01.760 states across the country taking the lead themselves and trying 0:02:01.760 --> 0:02:05.640 to protect the privacy interests of its own citizens. So, Bob, 0:02:05.680 --> 0:02:08.120 what kind of approaches are states taking as they look 0:02:08.160 --> 0:02:11.960 at this issue. Well, there's been a whole series of 0:02:12.080 --> 0:02:15.160 laws that have been introduced since the Riley decision. Not 0:02:15.360 --> 0:02:19.639 all impose measures limiting of the collection, sharing, or storage 0:02:19.639 --> 0:02:22.880 of data types all information that Congress has yet to 0:02:22.880 --> 0:02:25.600 step in and try to address, and it really is 0:02:25.760 --> 0:02:30.200 a whole range of issues, including, for example, rights that 0:02:30.360 --> 0:02:34.800 job applicants may have in their Facebook and and other 0:02:35.680 --> 0:02:38.840 private social media accounts. Many people, i think run into 0:02:38.880 --> 0:02:42.240 circumstances where potential employers demand that they share access to 0:02:42.280 --> 0:02:45.239 those social media accounts when applying for a job. A 0:02:45.360 --> 0:02:47.639 number of states have stepped in and said that that's 0:02:47.680 --> 0:02:51.880 not appropriate and that information ought to remain private. Um. 0:02:52.040 --> 0:02:55.240 There's been also a number of cases that have tried 0:02:55.280 --> 0:02:59.880 to bring into the modern age the Electronic Communications Privacy Act, 0:03:00.120 --> 0:03:03.240 which is now thirty years old and was originally created 0:03:03.320 --> 0:03:08.560 to extend protections against unconstitutional wire taps to digital communications, 0:03:08.600 --> 0:03:12.960 but that really has not addressed the modern circumstance now 0:03:13.240 --> 0:03:16.480 where people use cloud based services and under the law, 0:03:16.520 --> 0:03:19.240 believe it or not, there still is a rule that 0:03:19.320 --> 0:03:22.399 says any email stored on a third party server, which 0:03:22.400 --> 0:03:25.440 would include for example, a Gmail or Hotmail account, if 0:03:25.440 --> 0:03:29.160 it's stored for more than it's considered abandon and subject 0:03:29.240 --> 0:03:32.520 to collection by law enforcement without a warrant. So California 0:03:32.560 --> 0:03:34.480 has already passed a law to try to update this, 0:03:34.920 --> 0:03:39.600 and there's now legislation pending in Minnesota, New Mexico, New York, Virginia, 0:03:39.880 --> 0:03:41.960 on a number of other states, all trying to bring 0:03:42.360 --> 0:03:47.200 into the modern age this concept of protecting stored data. Bob, 0:03:47.840 --> 0:03:53.480 These third party providers Google, Facebook, Verizon, Twitter, even we 0:03:53.520 --> 0:03:56.160 saw Apple case or seemed to be in the middle 0:03:56.200 --> 0:03:59.880 between the users and the government. Do these state laws 0:04:00.120 --> 0:04:04.800 address the problems that they may have. Well, I think 0:04:04.800 --> 0:04:07.640 they address the problems, and they probably create new ones 0:04:07.720 --> 0:04:10.680 because all of these types of providers you're talking about 0:04:10.680 --> 0:04:15.640 obviously have have customers all over the country, and what 0:04:15.680 --> 0:04:19.520 we're seeing is now a patchwork of laws that may 0:04:19.600 --> 0:04:22.280 or may not be consistent with one another that applies 0:04:22.360 --> 0:04:26.039 to customers in these various states. So if you're a 0:04:26.120 --> 0:04:28.680 Google or an Apple and you operate all over the 0:04:28.800 --> 0:04:30.960 United States, it really creates a headache for you in 0:04:31.040 --> 0:04:35.080 terms of the privacy interests of your customers, Bob. Should 0:04:35.120 --> 0:04:37.839 there be a distinction in the way states or the 0:04:37.839 --> 0:04:41.760 federal government or we approach questions relating to say, the 0:04:41.800 --> 0:04:45.520 information you store on your phone versus the information you're 0:04:45.520 --> 0:04:48.159 putting on something like Facebook where you're sharing it with 0:04:48.200 --> 0:04:52.839 a lot of people. Well, certainly the information that is 0:04:52.920 --> 0:04:58.240 on your phone creates a more compelling case for privacy rights. 0:04:58.279 --> 0:05:02.279 I mean, these days, pe both are almost always within 0:05:02.680 --> 0:05:05.600 five or ten feet of their smartphones. They never leave 0:05:05.640 --> 0:05:08.440 them home. They have all kinds of information on there 0:05:08.680 --> 0:05:12.360 that's a highly personal nature, and you can essentially reconstruct 0:05:13.040 --> 0:05:16.000 almost somebody's entire life based upon the information they have 0:05:16.080 --> 0:05:19.120 on their cell phone. Um, the information they post on 0:05:19.160 --> 0:05:22.160 Facebook is a little bit different because it's obviously available 0:05:22.400 --> 0:05:24.559 to some extent to the public. But I think people 0:05:24.600 --> 0:05:28.000 who have Facebook accounts would argue that they limit those 0:05:28.400 --> 0:05:32.000 to only people who they have accepted as friends, and 0:05:32.120 --> 0:05:34.520 is certainly not the type of information that they necessarily 0:05:34.560 --> 0:05:37.039 want to share with an employer or should be forced 0:05:37.040 --> 0:05:41.160 to share with an employer. Bob, there are certain exceptions 0:05:41.560 --> 0:05:46.960 to this, and one is getting a permission from the 0:05:47.000 --> 0:05:50.479 person and sometimes the police can convince the person to 0:05:50.520 --> 0:05:56.719 give permission, And the other is emergency exception. Explain that, sure, well, 0:05:56.960 --> 0:05:59.960 the line of cases that really comes into place here 0:06:00.080 --> 0:06:03.920 or is an exception to the fourth Amendments of Prohibition 0:06:04.000 --> 0:06:06.560 upon on reasonable searches and seizures, And it goes back 0:06:06.560 --> 0:06:09.120 to the line of cases that talk about search incident 0:06:09.200 --> 0:06:11.919 to arrest and that really deals with the concept of 0:06:11.920 --> 0:06:15.280 when police officers make an arrest of an individual, they 0:06:15.360 --> 0:06:19.960 are they have historically been permitted to conduct searches in 0:06:20.080 --> 0:06:22.159 order to protect their own safety. So they want to 0:06:22.160 --> 0:06:25.120 make sure that an individual doesn't have a concealed weapon 0:06:25.200 --> 0:06:27.000 on them, for example, and that's been held to be 0:06:27.400 --> 0:06:31.039 entirely constitutional. And the other is to prevent the concealment 0:06:31.160 --> 0:06:34.440 or the destruction of evidence. So, for example, they can 0:06:34.520 --> 0:06:37.440 search somebody, pat them down, and if it turns out 0:06:37.440 --> 0:06:39.960 that in their pocket they're concealing some heroin or some 0:06:40.040 --> 0:06:43.640 other illegal narcotic, that can also be seized incident to arrest. 0:06:44.040 --> 0:06:46.240 What what these cases are sort of implicated is the 0:06:46.240 --> 0:06:49.880 concept of when they take that cell phone from somebody, UM, 0:06:50.000 --> 0:06:53.160 is that something that falls into those two categories. It 0:06:53.240 --> 0:06:56.200 certainly doesn't have anything to do with the officers safety necessarily, 0:06:56.800 --> 0:07:00.359 UH and it doesn't necessarily implicate the kind supt of 0:07:00.400 --> 0:07:04.440 destruction of evidence. Although UM government prosecutors have made both 0:07:04.440 --> 0:07:08.599 of those arguments and trying to argue that searches without 0:07:08.920 --> 0:07:12.960 a warrant are permissible. The really the only exception here 0:07:13.040 --> 0:07:16.960 that I think still exists is if there is UH 0:07:17.000 --> 0:07:20.280 an immediate threat to public safety. For example, if there 0:07:20.320 --> 0:07:24.160 is some idea that there may be some imminent harm 0:07:24.640 --> 0:07:26.960 as a result of some kind of terror attack, or 0:07:27.200 --> 0:07:30.120 if an individual was abducted and they believe that that 0:07:30.200 --> 0:07:32.560 information might be on a cell phone. Those would be 0:07:32.600 --> 0:07:37.239 exceptions that I think would still withstand a warrantless search. Bob. 0:07:37.880 --> 0:07:40.760 We have states now experimenting with different approaches, and we'll 0:07:40.760 --> 0:07:42.400 see what they come up with. But are we better 0:07:42.440 --> 0:07:45.600 off having that happen or should the Should the Congress 0:07:45.640 --> 0:07:49.239 step in here? I think it'd be best for everybody 0:07:49.280 --> 0:07:51.560 if the Congress would step in, and I think even 0:07:51.560 --> 0:07:54.679 the states recognize that. Um. I think what we're seeing 0:07:54.680 --> 0:07:58.120 here are states taking the lead in this, not with 0:07:58.200 --> 0:08:00.800 the expectation that not that necessary early at the end 0:08:00.840 --> 0:08:03.760 of the day, the state laws will be the law 0:08:03.800 --> 0:08:06.120 of the land for their states, but perhaps to nudge 0:08:06.200 --> 0:08:09.240 Congress to step in here to provide some uniformity in 0:08:09.240 --> 0:08:09.800 these laws.