2015 Law + Informatics Symposium on Digital Evidence

2015 Law + Informatics Symposium on
Digital Evidence

Friday, February 27, 2015

The Northern Kentucky Law Review and NKU Chase Law + Informatics Institute hosted their annual spring symposium, the Law + Informatics Symposium on Digital Evidence, on Friday, February 27, 2015. The event was held in the Northern Kentucky University George and Ellen Rieveschl Digitorium and was co-sponsored by the Center for Excellence in Advocacy.

The all-day symposium provided an interdisciplinary exploration of digital evidence. Discussion topics included individual autonomy and government security, evidentiary, reliability, digital privacy concerns, drone-obtained evidence, and medical reimbursement fraud. Speakers from across the country participated in the conference and in a final roundtable discussion of various current issues and topics in digital evidence.

  • Michael Losavio, University of Louisville, “A World Information Order – Privacy and Security in a Hyper-networked World of Data and Analysis”
  • Erin Corken, Ricoh Legal, “The Changing Expectation of Privacy”
  • Timothy Ravich, University of Central Florida, “All Arise! Courts in the Drone Age”
  • Jennifer Brobst, Southern Illinois University School of Law, “The Digital Wild Frontier: The Impact of Public Records Requests for Whole Databases and Metadata in Public Health and Criminal Justice”
  • Neil Issar and Edward Cheng, Vanderbilt Law School, “Admissibility of Statistical Proof Derived from Predictive Methods of Detecting Medical Reimbursement Fraud”

The symposium included a student scholarship showcase luncheon. Three law review editors, Kathleen Watson, Casey Taylor, and Lauren Martin, presented on the right to confront technology, warrantless cell phone searches, and computer source code copyright, respectively.

On Thursday, February 26, 2015, as a prelude to the academic symposium, NKU Chase hosted a special screening of The Decade of Discovery, a documentary film about a government attorney on a quest to find a better way to search White House e-mail, and a teacher who takes a stand for civil justice on the electronic frontier. After the viewing, the audience discussed the film with Joe Looby, filmmaker; Jason R. Baron, former government attorney featured in the film; Erin Corken, e-discovery adjunct professor and Ricoh Legal regional review manager; and Joseph Callow, partner and leader of the Keating Muething & Klekamp E-Discovery Litigation Support Group. The film screening was sponsored by Ricoh Legal and Keating Muething & Klekamp PLL.

The symposium was sponsored by Northern Kentucky Law Review, NKU Chase Law + Informatics Institute, Center for Excellence in Advocacy, Keating Muething & Klekamp PLL (film), and Ricoh Americas Corp. Legal (film).

A complete agenda with roster of speakers, biographies, and CLE materials is available here.

Watch the webinar without CLE credit.

About the Law and Informatics Institute: The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law.

Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media and entertainment, and the public sector.

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SUPREME COURT RULES THAT POLICE MUST GET WARRANT BEFORE SEARCHING CELL PHONES

Yesterday, the U.S. Supreme Court ruled in two cases – Riley v. California and U.S. v. Wurie (collectively “Riley”) – that police may not search a person’s cell phone just because the phone is in the person’s possession when he or she is arrested. Instead, the police must either get a warrant to search or else rely on case-specific facts giving rise to individualized suspicion that evidence on the cell phone will be destroyed before a warrant can be obtained. The Riley decision was virtually unanimous, with Justice Alito joining only in part.

After David Riley was arrested in California for a firearms offense, police searched his pockets and found a smartphone. Searches of the contents of the phone disclosed: that Riley had used the term “CK,” short for “Crip Killer,” suggesting that he was a member of the Bloods street gang; videos in which unknown persons used the word “Blood”; and a photo of Riley in front of a car involved in a recent shooting. This evidence was introduced at trial against Riley in California state court to prove his involvement in the shooting and his gang membership.

In a separate case, Brima Wurie was arrested on drug charges in Massachusetts, and police seized a flip phone from him. Police noticed numerous phone calls coming from a contact identified as “My House.” Police searched the phone for the phone number of the “My House” contact, then located the address associated with that number using an online directory. Police then secured a warrant for that address and seized drugs, cash, and a firearm, all of which were introduced at his federal trial on drug and gun charges.

Riley and Wurie each conceded that police had authority to seize their phones pursuant to the “search incident to arrest” (SIA) doctrine, which permits police, without a warrant, to search the person of an arrestee and seize whatever they find. They argued, however, that police went beyond that authority by searching the contents of their phones without a warrant.

The Court agreed. The Court distinguished a 1973 case, U.S. v. Robinson, in which it had upheld as an SIA the search of a cigarette pack obtained from an arrestee. In Robinson, the Court had justified the SIA rule on two grounds: preventing the arrestee from accessing an item that could be used to injure the officer or effect an escape, and preventing him from accessing evidence that could be concealed or destroyed. In Riley, the Court determined that inthe context of a cell phone, the first justification is obviously inapplicable. And the government had shown nothing beyond speculation that searching a cell phone immediately was necessary to avoid having its contents encrypted or remotely wiped.

On the privacy side of the ledger, the Court determined that digital evidence is of a completely different character than the non-digital evidence found in the cigarette pack in Robinson. While a limited number of personal items might be carried in a person’s pockets or purse, cell phones (particularly smartphones) carry a virtually limitless number of items that are quite private in nature: potentially thousands of e-mails and phone and text messages, a veritable music and video library, a daily calendar going back years, GPS location information, an internet browsing history, and dozens of apps. Each of these might reveal very personal information about the arrestee. And the Court said that this was true not only of Riley’s smartphone but also of Wurie’s flip phone. In short, the quantity and quality of information contained on a cell phone is different from non-digital evidence that might be found on an arrestee’s person in the same way that “a ride on horseback is [different] from a flight to the moon.”

In some cases, the Court acknowledged, police will have sufficient suspicion both that a cell phone contains evidence of a crime and that the evidence might be destroyed before a warrant can be obtained. In those cases, the police will be able to search without a warrant, but only if they can point to particular facts and circumstances indicating a need to search imminently. Otherwise, they will have to convince a judge to issue a warrant based on probable cause that the cell phone contains evidence of a crime.

Riley has the potential to be a very significant case. Not only does the ruling have the immediate effect of barring searches of cell phones, and presumably other computer devices, incident to arrest, but it also has broader implications. For the first time, the Court has acknowledged and coherently articulated that digital data are different than non-digital data, not only in degree but in kind. In the years to come, Riley will likely be viewed as the case that brought the Fourth Amendment into the 21st century.

 

Michael J. Zydney Mannheimer

Professor of Law

NKU Chase College of Law

518 Nunn Hall

Highland Heights, KY 41099

859.572.5862

mannheimem1@nku.edu