The Cop in Your Pocket
It’s 2017, and more devices than ever are connected to the internet. And beyond that, many these devices also have the capacity to collect personal information, spoken commands, and your location or activities.
The vast majority of people in the modern world have near-constant web connections. From posting on social media sites to online shopping, on-the-go emails and turn-by-turn directions to almost anywhere in the world, we’re plugged in. And everything we do online involves the exchange of data. We send and receive data about where we are and what we were doing there—and usually, without our explicit knowledge or consent. Sure, most of us are aware, somewhere in the back of our minds, that our smartphones are not truly private. But what may be a passing thought to the average citizen is of keen interest to corporate and government entities.
Such technologically advanced devices certainly have the capacity to improve the quality of citizen lives. But beyond the public sphere, what does this tech evolution mean for law enforcement and those accused of a crime? Let’s consider two recent court cases where this very question was in the forefront.
On November 22nd, 2015, police found the body of Victor Collins lifeless in a hot tub. There were signs of a struggle, as blood and broken glass were also found at the crime scene. The home owner, James Andrew Bates, claimed to have no involvement in the murder and police had few clues as to how Collins died in the hot tub that evening. In an effort to build a case against the home owner, law enforcement began searching the home for “smart” devices which could provide evidence.
First, police reviewed Bate’s water monitoring software. This system indicated that 140 gallons of water were used between 1 AM and 3 AM on the night Collin’s was found dead. This unusually large volume of water lead police to believe that Bate’s, or whomever was in the home at the time, was cleaning the crime scene. The second device reviewed by police was Bates’ Amazon Echo, which was located just yards from the hot tub. This device acts as a digital personal assistant and is constantly listening for spoken commands from a user like “what’s the weather going to be like today?” or “add milk to my shopping list.”
In addition to more vanilla conversations captured, police are curious whether or not the device captured the conflict or struggle which ensued on the night November 22nd 2015. As anyone who owns a voice controlled device knows, these devices can be prone to capture spoken commands inadvertently. Was a potential breakthrough for the prosecutors’ case stored on the Echo device?
Police have requested access to the device and any audio recordings which were made on the date in question. While Amazon has provided police with the homeowners Amazon account information and purchase history, the company has refused to turn over its audio files and grant access to the device on two occasions during the investigation.
The San Bernadino iPhone
In 2016, Apple went toe-to-toe with federal law enforcement over an Apple iPhone.
Following the ISIS inspired San Bernadino massacre, federal agents retrieved two Apple iPhones which belonged to the home-grown terrorists who carried out the attack. In a similar turn of events, Apple refused to provide access to federal agents as part of the investigation.
The FBI went to extraordinary lengths to gain access, when, in April of 2016, the FBI ended up paying professional hackers to provide access to the device. This involved building hardware capable of breaking the phones 4-digit security code without triggering a safety mechanism which deletes data in the event of a digital break-in.
The All Writs Act of 1780
In both of these cases, law enforcement relied upon a nearly 250 year-old-law in order to request corporate compliance. This law, known as the All Writs Act of 1780 requires companies to comply with law enforcement requests if four qualifications are met:
1. The All Writs Act is only applicable if there is no statutes or law on the books dealing with the specific issue at hand
2. The business has a connection to the investigation
3. The All Writs Act should only be used during cases of extraordinary circumstances
4. Compliance with the request must not be an unreasonable burden to the business
In the San Bernadino Apple iPhone case, items one, two and three are easily met. Where things get complicated is the fourth item.
In order for Apple to provide access to the phone, it would require the company to develop hacking software which does not currently exist. Simply put, Apples current security process is so strong that at the time of the case, Apple did not possess a simple means of hacking their own device. By developing this technology, they would be opening the door to further hacks and provide an unsettling precedent for other tech giants.
With regards to the Amazon Echo, police have yet to gain access.
The San Bernadino case showed that federal authorities will go to extreme length to break into devices which they believe holds critical information. The larger question for society as a whole is: should law enforcement be permitted to take these steps and when they do – should this evidence be permitted in a court of law?
In response to the recent growth of this type of evidence, Michael Schmiege said, “Increasingly we are seeing court cases which feature personal information, obtained from tech companies, used as evidence against the accused. As a criminal defense attorney, it is my duty to ensure this information was obtained via legal channels and the accuracy of the information can be verified.”
Are you facing a criminal case where personal information, stored on a smart device, is being used against you? Attorney Michael Schmiege has a well-earned reputation for standing up for the freedoms guaranteed to his defendants by the US constitution. Take advantage of his expert knowledge
of tech law and
privacy rights and contact his legal offices today to
protect your rights.