Austin Technology Law Blog : Texas Technology Lawyers & Attorneys for Copyright, Trademarks & Software Licensing in Houston, Dallas & Austin TX

Two recent cases highlight the problems that courts have with the confluence of technology and the Fourth Amendment prohibition against unreasonable search and seizures.

The Sixth Circuit Court of Appeals held that compelling a defendant's internet service provider to turn over the defendant's e-mails without a warrant violated the Fourth Amendment.

The Supreme Court of California held that the search of a smart phone that was on a defendant's body when arrested could be searched without a warrant.

The Sixth Circuit Case involved the makers of Enzyte, a herbal supplement that employed a very annoying "Smiling Bob" and a plethora of thinly disguised puns and props to indicate that the supplement would increase the size, durability and apparently the appearance of your external genitalia.  Imagine our surprise when the makers and distributors were accused of deception, fraud and a number of other transgressions, including money laundering.  During the investigation, the government compelled an internet service provider to release e-mails more than 180 days old without getting a warrant.  The government relied on a provision in The Stored Communications Act 18 U.S.C. §§ 2701 et seq., which allowed for such shenanigans when the e-mails were of such an age.

The Sixth Circuit held that the defendants still had a reasonable expectation of privacy in such old e-mails and held that portion of the Stored Communications Act as unconstitutional.  The court likened the internet service provider to the post office or the phone company and noted that interception of a letter or a phone call could not be done without a probable cause warrant.  The court said an e-mail was entitled to the same stature.

The California case involved an accused seller of Ecstasy, the amphetamine fuel of choice for all night "raves" or for extended sexual encounters.  In this case, the defendant Diaz attempted to sell Ecstasy to a police informant.  A sale was made, an arrest ensued and Mr. Diaz's cell phone was taken from his person.  An hour and a half later, back at the station, an investigator looked at text messages on the phone and found the text: "6 4 80".  This apparently means that the defendant offered to sell six tablets for $80.  The defendant was shown the text and promptly confessed.

Upon appeal, the defendant claimed that the phone was searched without a warrant and therefore the text and the subsequent confession should be excluded.  Courts faced with similar issues in the past have held that the search of the person and the immediate area incident to a lawful arrest without a warrant is acceptable in order to check for weapons or check for evidence that might be lost.  The California court held that the cell phone “was an item [of personal property] on [defendant‟s] person at the time of his arrest and during the administrative processing at the police station" and was therefore “immediately associated with [defendant‟s] person and that the warrantless search of the cell phone therefore was valid".

In a dissenting opinion, justices stated that the nature of the cell phone i.e. that it basically amounts to a pocket held computer should warrant (pun intended) a distinction between such devices and weapons, paint chips and crumpled cigarette packages, items that had been approved for search in cases on which the majority relied.  The majority cited cases that stated explicitly that the validity of a warrantless search does not depend on the character of the searched item.

It is unlikely that the result would have been the same if a the defendant had been holding a laptop at the time of arrest and a subsequent warrantless search was made of the laptop.  This ruling probably deserves some further consideration and refinement.  Stay tuned.

• Email This
• Print
• Comments
• Trackbacks

A recent ruling by the Library of Congress on the Digital Millennium Copyright Act (DMCA) resulted in large changes for cell phone users. The Copyright ruling spoke to several issues on circumvention, but for our discussion today, we shall discuss jailbreaking. Jailbreaking is the process of bypassing cell phone software allowing the user to purchase cell phone applications other than ones required by the cell phone manufacturer (here’s some info on the subject). This ruling has large implications in the app development community and could change the face of apps and cell phones … or according to others - do nothing.

First, when I was discussing this with some friends of mine the first question most had was, “Say what?! Why is the Library of Congress speaking on jailbreaking and who gave them authority? How is jailbreaking a Copyright issue?” So before I go into an analysis of the ruling, a quick rundown of the logistics of this might be in order.

The Library of Congress governs the United States Copyright office (it’s actually a division of the Library of Congress), and as such the Librarian of Congress discusses certain rules from time to time. Okay?! But this still doesn’t answer why this is a Copyright issue. In 1996 there were treaties passed by the World Intellectual Property Organization (WIPO), and the DMCA is the implementation of those treaties. These treaties covered several aspects of IP law, but for this post the relevant area of the treaties implemented into the DMCA dealt with the prohibition of circumvention of technology measures that control access to copyrighted works. In other words, this gave the Copyright office the ability to govern technologies on cell phones that protected copyrighted works, such as applications. As a result, the Librarian of Congress can determine if things such as jailbreaking of phones should be legal or not.

• Email This
• Print
• Comments
• Trackbacks