Privacy Law and Policy : Privacy Lawyer & Attorney : Kevin Whitaker Law Firm : Patient Confidentiality, Defamation, Identity Theft : Privacy Law & Policy Blog

In my recent post, Encryption and the Right to Maybe Remain Silent, I discussed the government's efforts to obtain encrypted evidence on a laptop. The issue was whether an individual can be forced to decrypt incriminating information. While this area of law has many new questions, there's always more than one way to skin a cat.

Even in cases, where a encryption was not ordered, the government may have taken actions to find encryption keys through a keylogger (which records keystrokes) or other devices. Declan McCullagh discussed this in his 2007 cnet post, Feds use keylogger to thwart PGP, Hushmail -

A recent court case provides a rare glimpse into how some federal agents deal with encryption: by breaking into a suspect's home or office, implanting keystroke-logging software, and spying on what happens from afar.

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If data is encrypted, can the police force you to decrypt it or provide them with an unprotected copy? What about self-incrimination and abrogating one's right to remain silent? 

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In NY, there's been some back and forth on the issue, but it now appears the police may not approach your car, attach a GPS tracking device to it, and then monitor your whereabouts without a warrant (unless an exception to a warrant exists.) In Does Technology Have to Trump Privacy Right,Nicole Black previously discussed the recently decided NY case of People v. Weaver (PDF).

Previously in Weaver (decided June 5, 2008) the State of New York Supreme Court Appellate Division [the Appellate division sits below State Court of Appeals] found a vehicle owner's reasonable expectation of privacy was not violated when a GPS device was placed under the bumper of the defendant's van while it was parked on a public street. Data retrieved from the GPS was later used as evidence in Weaver's criminal convictions. See PDF.

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A three member U.S. District Appeals Court for the District of New Mexico finds a familial (family) connection to a suspect supports neither probable cause for a search warrant, nor reasonable suspicion for an investigative detention of a relative. Further, officers who get this wrong can't raise "qualified immunity" as a defense in a § 1983 lawsuit.

This case demonstrates the difficulties that often arise between police powers and individuals' privacy rights. Those who favor broader police powers will decry this ruling and argue it will have a chilling effect on law enforcement. Alternatively, others will celebrate a ruling which recognizes individuals' protections from unreasonable search and seizures (due primarily to a familial relationship) and that also gives these rights a civil remedy which has some teeth.

In this case (PDF here), officers obtained a warrant and ordered the search of a murder suspect's in-laws' property. Later, officers also stopped the suspect's sister-in-law in an investigative detention. The court held the officers actions in both cases violated the in-laws' Fourth Amendment rights and ruled,

we hold that a familial relationship is insufficiently particularized to justify invading an individual's reasonable expectation of privacy. ... Applying this rule to the present case, we conclude that the...status as...in-laws, combined with the meager additional facts..., were insufficient to support a finding of either probable cause to search the property or reasonable suspicion to detain [the sister-in-law.]

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The Massachusetts Supreme Judicial Court is expected to hear arguments today on the use of recorded jailhouse calls in the prosecution of John Odgren. Odgren is accused of murdering a 15 year-old student at Lincoln-Sudbury High School. A lower court ruling had excluded tapes of Odgren's jailhouse phone calls which had been obtained by the prosecution through a subpoena. The SJC's opinion could have far-reaching implications in future prosecutions throughout the Commonwealth of Massachusetts.

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