September 2014

Circuits Split On Cell Site Data and the Third Party Doctrine

September 26, 2014
Uncategorized

Mickey Stevens, MJLST Staff

The Eleventh Circuit’s recent decision in United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) has created a split among the circuits regarding the interaction between the Third-Party Doctrine and cell site data recorded by cell phone service providers. The Stored Communications Act 18 U.S.C. § 2703, which was enacted as part of the Electronic Communications Privacy Act of 1986, allows the Government to obtain disclosures of information regarding wire and electronic communications held by third-party service providers. Under 18 U.S.C. § 2703(d), the Government may obtain this information by court order and bypass any requirement of a warrant or showing of probable cause. The Third-Party Doctrine, which says that a person who voluntarily turns information over to third parties has no legitimate expectation of privacy in that information, served as grounds for this provision to operate without violating the Fourth Amendment. This practice was a central issue involved in the Davis decision, rendered this past June.

In Davis, a panel for the Eleventh Circuit ruled that law enforcement officers violated the Appellant’s Fourth Amendment rights when they obtained, without a warrant, records of location evidence based on cell site information. Despite this ruling, the panel concluded that the trial court’s denial of Appellant’s motions to suppress did not constitute reversible error due to the good faith exception to the exclusionary rule.

In reaching its decision, the panel rejected the Government’s argument that the Third-Party Doctrine applied to the cell site data evidence. The panel cited to a 2010 decision from the Third Circuit, In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010), which held that a cell phone user voluntarily conveys only the number dialed and not the location data when he makes a call. The Eleventh Circuit’s decision is clearly contradictory to a 2013 decision from the Fifth Circuit, In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). There, the Fifth Circuit held that a cell phone user voluntarily conveys his cell site data each time he makes a call, and that this data could be properly obtained without a warrant.

On September 4, 2014 the Eleventh Circuit granted a motion for rehearing en banc. If the en banc court’s decision maintains the split between the Eleventh and Fifth Circuits, we might see a decision from the Supreme Court on the matter. The Supreme Court seems to have shown a particular interest in digital data as of late, judging by recent decisions in Riley v. California, 134 S. Ct. 2473 (2014), and United States v. Jones, 132 S. Ct. 945 (2012), among others. If the pro-privacy holdings and rationale in Riley and Jones serve as any indication, the Supreme Court may put an end to the Third-Party Doctrine’s application to warrantless gathering of cell site data.

Anti-Cyberbullying State Statutes Should Prompt a Revisiting of the Communications Decency Act

September 26, 2014
Cyber Security, First Amendment, Internet, Social Media

Nia Chung, MJLST Staff

Cyberbullying comes in varying forms. Online outlets with user identification features such as Facebook and MySpace give third party attackers a platform to target individuals but remain identifiable to the victim. The transparency of identification provided on these websites allows victims the ability of possible redress without involving the Internet Service Providers (ISPs).

In February 2014, Bryan Morben published an article on cyberbullying in volume 15.1 of the Minnesota Journal of Law, Science and Technology. In that article Mr. Morben wrote that Minnesota’s new anti-cyberbullying statute, the “Safe and Supportive Minnesota Schools Act” H.F. 826 would “reconstruct the Minnesota bullying statute and would provide much more guidance and instruction to local schools that want to create a safer learning environment for all.” Mr. Morben’s article analyzes the culture of cyberbullying and the importance of finding a solution to such actions.

Another form of cyberbullying has been emerging, however, and state initiatives such as the Safe and Supportive Minnesota Schools Act may prompt Congress to revisit current, outdated, federal law. This form of cyberbullying occurs on websites that provide third parties the ability to hide behind the cloak of anonymity to escape liability for improper actions, like 4chan and AOL.

On September 22, 2014, British actress Emma Watson delivered a powerful U.N. speech about women’s rights. Less than 24 hours later, a webpage titled “Emma You Are Next” appeared, displaying the actress’s face next to a countdown, suggesting that Ms. Watson would be targeted this Friday. The webpage was stamped with the 4chan logo, the same entity that is said to have recently leaked celebrity photos of actresses including Jennifer Lawrence, this past summer. On the same website, one anonymous member responded to Ms. Watson’s speech by stating “[s]he makes stupid feminist speeches at UN, and now her nudes will be online.” Problematically, the law provides no incentive for such ISPs to remove such defamatory content because they are barred from liability by a federal statute. The Communications Decency Act, 47 U.S.C. § 230, provides, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Essentially, this provision provides ISPs immunity from tort liability for content or information generated on a user-generated website. Codified in 1996, initially to regulate pornographic material, the statute added sweeping protection for ISPs. However, 20 years ago, the internet was relatively untouched and had yet to realize its full potential.

Courts historically have applied Section 230 broadly and have prevented ISPs from being held liable for cyberbullying actions brought from victims of cyberbullying on its forum. For example, the Ninth Circuit upheld CDA immunity for an ISP for distributing an email to a listserv who posted an allegedly defamatory email authored by a third party. The Fourth Circuit immunized ISPs even when they acknowledged that the content was tortious. The Third Circuit upheld immunity for AOL against allegations of negligence because punishing the ISP for its third party’s role would be “actions quintessentially related to a publisher’s role.” Understandably, the First Amendment provides the right to free exchange of information and ideas, which gives private individuals the right to anonymous speech. We must ask, however, where the line must be drawn when anonymity serves not as a tool to communicate with others in a public forum but merely as a tool to bring harm to individuals, their reputations and their images.

In early April of this year, the “Safe and Supportive Minnesota Schools Act was approved and officially went into effect. Currently, http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf have anti-cyberbullying statutes in place, demonstrating positive reform in keeping our users safe in a rapidly changing and hostile online environment. Opinions from both critics and advocates of the bill were voiced through the course of the bill’s passing, and how effectively Minnesota will apply its cyberbullying statute remains to be seen. A closer look at the culture of cyberbullying, as is discussed in Mr. Morben’s article, and the increasing numbers of anti-cyberbullying state statutes, however, may prompt Congress to revisit Section 230 of the Communications Decency Act, to at least modestly reform ISP immunity and give cyber-attacks victims some form of meaningful redress.

E-Discovery Costs: Quick Peek and Clawback

September 17, 2014
Privacy

Joe McCartin, Managing Editor

E-Discovery costs can be quite prohibitive. The problem was detailed by David Degnan in Volume 12, Issue 1 of the Minnesota Journal of Law, Science, and Technology. In his article, Accounting for the Costs of Electronic Discovery, Degnan discussed the use of four methods for controlling costs – sampling, gap testing, crawl systems, and cooperation. Recently, FDIC litigation against former directors of failed banks has created a new trend in E-Discovery cost containment – the quick peek and clawback. However, this new cost control mechanism may not control cost at all. It merely shifts a significant amount of cost onto the requesting party, upending traditional discovery procedures.

In FDIC v. Hayden, et al. and FDIC v. Copenhaver, et al. the court required the requesting party of Electronically Stored Information (ESI) to submit search terms to the FDIC, which would then produce all documents relevant to those terms in a Relativity database. The requesting party would then have access to all hosted documents, but would be responsible for conducting initial document review itself. After the requesting party conducted a “quick peek” and selected relevant documents, the FDIC would then have the opportunity to “clawback” any privileged documents. The FDIC would not have to review any documents not selected by the requesting party.

It is entirely appropriate for courts to shift the costs to a requesting party at times. Zubulake v. UBS Warburg, LLC. detailed a number of factors that could warrant cost shifting from the producing to the requesting party, and in FDIC v Hayden, et al. the court engaged in extensive analysis of the Zubulake factors. However, courts need to bear in mind that review is not just a portion of the production cost, it is the overwhelming bulk of the cost, and should not be shifted between parties without compelling reasons. Degnan showed in his article that the primary costs associated with E-discovery comes from review, which accounts for roughly 58% of the cost of e-discovery. Even in the presence of a number of compelling Zubulake factors, courts should make an attempt to split, not just shift, the cost of review.

While some requesting parties have found the arrangement to their liking, courts have also foisted this on others. Notably, this practice doesn’t reduce the overall amount of review, it merely shifts the costs of initial review from the producing to the requesting party. Requesting parties need to be aware of the potential costs they will bear under this arrangement. If they want to avoid the imposition of quick peek and clawback by courts, they should seek to follow the guidance of Degnan and the Sedona Conference and cooperate extensively with the opposing party in crafting a discovery process that is acceptable. Failure to work on a discovery plan cooperatively, leaves the requesting party more vulnerable to having a plan foisted upon them, one that may shift the bulk of costs onto them.

Halbig v. Burwell Revisited

September 17, 2014
Healthcare, Healthcare Reform

Roma Patel, Note and Comment Editor

The Supreme Court’s decision in Hobby Lobby took the health law spotlight this summer. As the Court’s opinion was dissected every which way in the weeks following its release, something else was brewing at the Court of Appeals for the D.C. Circuit in Halbig v. Burwell.

On its face, the Halbig case challenges the federal tax credits, which are available to qualified individuals, enrolled in the health insurance exchange programs. The provision, established by the Patient Protection and Affordable Care Act, references the payment of credits to individuals who enroll through an Exchange established by the state. The legal challenge claims these credits are not available to the 36 states that chose to let the federal government manage their exchanges.

With millions of Americans relying on these tax credits in order to afford health insurance under the mandate, the case’s outcome could be devastating. One concern few are addressing is whether Halbig presents a legitimate legal question in the first place. While the plaintiff, senior policy advisor to the Department of Health and Human Services under President George W. Bush, paints this as a matter of statutory language and intent. Advocates for the ACA feel opponents are making a last ditch effort to invalidate the entire law based on imperfect legislative wording. The incessant politicization of health care reform has left most Americans frustrated and disillusioned. Regardless of the outcome, perhaps Halbig represents an opportunity to shine a light on the rhetoric surrounding the healthcare debate itself.

Drones Raise Fourth Amendment Issues

September 10, 2014
Privacy

Alex Vlisides, Symposium Editor

Law professors love to tweak hypotheticals until students become uncomfortable with the result. It is the classic law school trap. As soon as you agree a premeditated, unprovoked killing is never justified, you are swept away to a desperate life raft in which the only way for the innocents to survive is for one of them to be thrown overboard. This is how we test which of the competing values will break first. And how law professors entertain themselves.

The developments in drone and camera technology are bringing Fourth Amendment privacy rules, particularly the public observation doctrine, to their breaking point. Public observation is the idea that generally what one exposes to the public may be observed or even recorded without violating privacy. But fundamental changes in what can be observed alters this balance. The development of technologies that sound made up for law school hypotheticals will challenge constitutional doctrine. Surveillance technology capable of tracking the movements of every individual in a several square mile are. Drones which can stay stationed in the air for years at a time. Cameras capable of surveilling private land and spaces from so high above they are effectively invisible. These technologies exist and each challenge the notion that observation in and from public spaces does not violate privacy.

These technologies are not exactly new: both aerial crafts and surveillance technologies have improved steadily for decades. What is new is that the rapid development of the last decade has brought the doctrine near to the breaking point, the point that law professors love. The point at which the designed rule, the sturdy absolute, cracks under changing facts. The point at which we have to decide which principle gives: the general autonomy to observe and record in public spaces and right to privacy. The public observation doctrine was developed to navigate this balance. The challenge for courts, and perhaps law students, is that the breaking point approaching Fourth Amendment law is no longer hypothetical.

September 2014

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