Wednesday, July 31, 2013

State Attorneys General seek modification of Communications Decency Act to combat child sex trafficking

Nearly every Attorney General in the country has joined in signing a letter to Congress urging the modification of the Communications Decency Act of 1996 (CDA). The change seeks to allow the state prosecution of website owners for hosting user-created advertisements that result in the victimization of children.

Section 230 of the CDA has been held to mean that website owners are not liable for the contents of what third parties post on their websites. For example, a newspaper or social media company like Facebook is not liable for comments posted on their websites by users (see, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997)). The immunity extends to all torts including if the content contained defamatory or false information, threats, or sexually explicit content including that of minors (see Doe v. America Online, 783 So. 2d 1010 (Fl. 2001) (holding that marketing of sexually explicit content of minors in an AOL chat room did not subject AOL to claims of negligence).

The recommendation from the National Association of Attorneys General (NAAG) is aimed at allowing states to prosecute website owners for hosting content that facilitates child sex trafficking. "It is ironic that the CDA, which was intended to protect children from indecent material on the internet, is now used as a shield by those who intentionally profit from prostitution and crimes against children." NAAG argues that federal enforcement alone has been "insufficient," and states should be allowed to step in "to investigate and prosecute those who facilitate these horrible crimes."

Monday, July 29, 2013

New Jersey Supreme Court holds that police must get warrant for cell site data

In State v. Earls, No. 068765 (N.J. 2013), the Supreme Court of New Jersey held that police must obtain a warrant in order to get cell site location information (CSLI) unless an exception to the warrant requirement applies.

During the investigation of several burglaries, police contacted - without a warrant - T-Mobile at three different times in one evening to obtain cell site data for the defendant's cell phone. The trial court found that the defendant had a reasonable expectation of privacy in the location of his cell phone and a warrant should have been obtained. However, they further found that the emergency aid exception to the warrant requirement applied. The defendant pled guilty.

On appeal, the intermediate appellate court found that the "defendant had no constitutionally protected privacy interest" because he had "no reasonable expectation of privacy in [his] movements on public highways or the general location of [his] cell phone."

In its decision, the Supreme Court disagreed with the Appellate Division, noting that the state's constitution provides greater protection than the Fourth Amendment and finding that police must obtain a warrant before acquiring CSLI.
[P]eople do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.
However, the court noted that recognized exceptions are still applicable and thus remanded to the Appellate Division for consideration of the emergency aid doctrine or other warrant exceptions.

Wednesday, July 24, 2013

Georgia appeals court reverses burglary conviction due to illegal use of a GPS device

In Hamlett v. State, No. A13A0747 (Ga. Ct. App. 2013), the Court of Appeals of Georgia reversed a judgment in part due to the use of evidence derived from the illegal use of a GPS device.

The defendants were convicted of burglary and had attempted at trial to suppress evidence acquired after the placement of a GPS device. The arguments included lack of sufficient probable cause to use the device and also that a subsequent "stop was not supported by a reasonable articulable suspicion that he was or had been involved in criminal activity."

The appeals court held that because there was no evidence of the defendant's involvement in the crime at the time of the affidavit,
the detective's affidavit failed to provide a sufficient basis from which the Cobb County court could find the probable cause necessary to authorize the State's surreptitious and non-consensual installation and monitoring of the GPS tracking device.
Further, the illegality of the stop was not cured because of the truck's inoperable brake lights or expired tag. The officer testified that he had only followed and stopped the defendant because of the GPS monitoring and that he had acted differently than he would have for a routine stop. The court continued with its explanation and ultimately held:
Thus, the overwhelming and undisputed evidence shows that the traffic stop of Jalim's truck would not have occurred but for the State's illegal use of the GPS tracking device.
Thus, the burglary related convictions were reversed, but the defendant's conviction with regard to the license plate and brake lights were upheld.

A dissenting opinion argued that probable cause existed for the use of the GPS device and that the ultimate stop was legal.

Monday, July 22, 2013

Infographic timelines the history of surveillance by the U.S. government

An infographic was recently published detailing the United States government's surveillance in a timeline. It's a good refresher of the last hundred or so years on the subject. Here's the intro:
With the revelation that the federal government, through the National Security Agency, has been collecting phone and Internet records of U.S. citizens in the name of preventing terrorism, Americans are wondering whether private communication exists. Let’s explore how this surveillance works and the history of domestic spying programs (because, let’s face it, they’re not new) and how, even with broader knowledge of the government’s activities, a minority of Americans oppose such programs.