Does you have privacy rights in what's stored in your cellphone? Supreme Court cases raise the issue.

Do you have privacy rights in what’s stored in your cellphone? Supreme Court cases raise the issue.

A quick question for you on Monday morning: How private is your cellphone?

That simple question underlies some cases facing the U.S. Supreme Court this Term. There, the justices must wrestle with issues of search and seizure when it comes to the ubiquitous cellphone.

When you are asked to empty your pockets (following, we suppose, establishment of probable cause or at least a Terry stop), is your phone entitled to no more privacy than, say, the wad of tissues, or the spare change?

Here is how one news story about the cases opens:

“Two Supreme Court cases about police searches of cellphones without warrants present vastly different views of the ubiquitous device.”

“Is it a critical tool for a criminal or is it an American’s virtual home?”

“How the justices answer that question could determine the outcome of the cases being argued Tuesday. A drug dealer and a gang member want the court to rule that the searches of their cellphones after their arrest violated their right to privacy in the digital age.”

“The Obama administration and California, defending the searches, say cellphones are no different from anything else a person may be carrying when arrested. Police may search those items without a warrant under a line of high court cases reaching back 40 years.”

“What’s more, said Donald Verrilli Jr., the administration’s top Supreme Court lawyer, ‘Cellphones are now critical tools in the commission of crimes.’”

Read the whole story here.

And let me know where you stand on the privacy rights attendant on that phone in your pocket.

University of Arizona Law School Professor Jane Bambauer

University of Arizona Law School Professor Jane Bambauer

Scouring law school websites may not be your idea of fun. Maybe it ranks right up there with scouring sites of county recorders, or tax-advice columnists. (Cue the angry tweets from all three providers.)

But you may be surprised at the valuable information located at law school sites. Today, I share some news from the University of Arizona Law School.

First, I point you toward a podcast with interview of UA Law Professor Jane Bambauer. In it, she  discusses her Stanford Law Review article called Is Data Speech?

The podcast is on the unsurprisingly good site of Surprisingly Free (“A weekly podcast featuring in-depth discussions with an eclectic mix of authors, academics, and entrepreneurs at the intersection of technology, policy, and economics”—yo, bookmark it!). In the July 23 interview, Bambauer “addresses several issues relating to whether data can be can be considered speech, how to define ‘data,’ and whether data collection can be covered by the First Amendment.”

If you’re more of a visual thinker, you can read a draft of her paper here.

University of Arizona Law School logoThis is a fascinating topic, and perhaps I’ll prevail on Professor Bambauer to cover this topic (and others??) in Arizona Attorney Magazine.

Last month, she was a co-host at a law school event (and I’m still sorry I didn’t get the chance to talk to her, as she was swarmed by law students and others). Below are a few photos from the July 10 law school event, held at the downtown Phoenix Palomar Hotel.

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And then, in case I needed reminding that I didn’t hang out with professors nearly enough in law school, I see a new book is out that bears reading. It’s called “Saving the Neighborhood,” and a co-author is UA Law Professor Carol Rose.

You can purchase the book here. And from the same spot, I share a description of the volume, which clearly has much to say about our society and the evolution (or not) that it’s witnessed.

“Saving the Neighborhood tells the charged, still controversial story of the rise and fall of racially restrictive covenants in America, and offers rare insight into the ways legal and social norms reinforce one another, acting with pernicious efficacy to codify and perpetuate intolerance.”

University of Arizona Law School Professor Carol Rose

University of Arizona Law School Professor Carol Rose

“The early 1900s saw an unprecedented migration of African Americans leaving the rural South in search of better work and equal citizenship. In reaction, many white communities instituted property agreements—covenants—designed to limit ownership and residency according to race. Restrictive covenants quickly became a powerful legal guarantor of segregation, their authority facing serious challenge only in 1948, when the Supreme Court declared them legally unenforceable in Shelley v. Kraemer. Although the ruling was a shock to courts that had upheld covenants for decades, it failed to end their influence. In this incisive study, Richard Brooks and Carol Rose unpack why.”

“At root, covenants were social signals. Their greatest use lay in reassuring the white residents that they shared the same goal, while sending a warning to would-be minority entrants: keep out. The authors uncover how loosely knit urban and suburban communities, fearing ethnic mixing or even “tipping,” were fair game to a new class of entrepreneurs who catered to their fears while exacerbating the message encoded in covenants: that black residents threatened white property values. Legal racial covenants expressed and bestowed an aura of legitimacy upon the wish of many white neighborhoods to exclude minorities. Sadly for American race relations, their legacy still lingers.”

I know; heady stuff for a Monday morning. Well, it’s August, and school is back in session. Let’s get learning.

Rehnquist Center banner logoSo far, my overscheduled Tuesday looks like it won’t accommodate a trip south to Tucson. And that’s really too bad. (Well, that’s too bad most any day, but it’s especially the case on February 26.)

The reason I’d like to drop by the University of Arizona Law School is to attend an oral argument—before the Court of Appeals for the Armed Forces, of all legal bodies.

Here is how the Court describes itself and its civilian judges:

“The United States Court of Appeals for the Armed Forces exercises worldwide appellate jurisdiction over members of the armed forces on active duty and other persons subject to the Uniform Code of Military Justice. The Court is composed of five civilian judges appointed for 15-year terms by the President with the advice and consent of the Senate.”

Court of Appeals for the Armed Forces sealThe Rehnquist Center at the law school has announced the morning event, during which law students will have the opportunity to argue; those same students have already filed an amicus brief in the case.

The Center says that the Court has never traveled to Tucson. But if that’s not enough of a draw, here are the case facts:

“GCM conviction of possession of child pornography, larceny of military property and filing a false claim. Granted issues question (1) whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States; and (2) whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not ‘certain’ or ‘absolutely clear’ that it would be returned to the wounded-warrior Appellant.”

From where I sit, that is a fascinating Fourth Amendment question. (Although didn’t the U.S. Supreme Court this past Term examine a question related to privacy rights on a school computer that could possibly be returned to the employer? What case was that? Anyone?) (Recently, Canada’s Supreme Court took the view that folks do have some measure of privacy, even on their work-issued computer. O Canada.)

More information about the Tuesday morning arguments is here. Included among the detail are the argument briefs (in PDF).

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

At noon today, the annual Willard Pedrick Lecture will be delivered at the ASU Sandra Day O’Connor College of Law.

The speaker will be Erwin Chemerinsky, Dean of the UC–Irvine School of Law. His topic will be “Rethinking Privacy and the Fourth Amendment.” It’s likely too late for you to reserve one of the free seats, but it may be worth a shot to drop by anyway (many of the seats reserved for students are still not taken).

I had the chance to interview Dean Chemerinsky early in 2012 for a Q&A in Arizona Attorney. I’m confident his lecture will be worth hearing.

That’s why I’m disappointed to note that I’ll be unable to attend today’s lecture. But I’d love to hear from someone who was there. If you do attend and are interested in guest-writing a blog post about his remarks, please write to me at arizona.attorney@azbar.org.

Here is some background about the dean, as provided by ASU Law School:

“Chemerinsky is one of the nation’s top experts in constitutional law, federal practice, civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution. Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country. He has also written nearly 200 law review articles in journals, such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal.”

“Chemerinsky frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeals, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.”

For the very first time, AZ Attorney has a guest blogger. She is Fiona Causer, currently (as she describes herself) “a student pursuing her bachelor’s degree in Legal Studies … [who] enjoys writing and seeks to use it as a vehicle to convey ideas and engage others in discussing relevant issues of our day.” She writes here about social media and privacy issues. The opinions in the post are solely those of Ms. Causer. You can reach her directly at fiona.causer1@gmail.com.

Are you interested in writing or collaborating on a guest post? Contact me at arizona.attorney@azbar.org.

Thanks to Fiona for her thoughtful piece:

Photo from Wired.com, photographer name withheld; digital manipulation by Jesse Lenz

Paralegal Perspective: Is Social Media a Means of Voluntary Expression or Unwanted Exposure?

Guest Post by Fiona Causer

In an era where near-constant surveillance of American citizens is a possibility, do online social media outlets really allow for free speech? In other words, if you know that people are monitoring what you say, can your speech really be considered free? For example, we’ve all held our tongue on Twitter, since we know that all of our followers will hear what we have to say and we don’t want to offend anyone. For folks in the United States, despite having the freedoms of speech and personal privacy granted to us by the U.S. Constitution’s Bill of Rights (e.g., via 1st and 4th Amendments, respectively), interpretation and practice can at times be unclear.  This gives rise to many challenges for career legal professionals tasked with sifting through the ambiguity caused by an Internet-based world where personal information is not only widely accessible, but distributed quickly as well. While paralegal certification programs are growing in popularity with more people interested in entering the field of law, the issues created by online social networks will be sure to be a burden on the minds of future professionals in the field of law.

So while we do try to bite our tongue at times to not offend or simply be polite, what happens if we just feel that everyone is listening? Will self-censorship increase if you knew your boss was listening, or if a government operative were monitoring your private Facebook emails. How does this relate to social media and privacy? In two recent instances, there have been cases where people are “listening” to what you’re saying online in a way that can only be deemed invasive.

In the first instance, as reported by the Associated Press, employers are asking potential employees for their Facebook username and password, so they can have full access to the potential employee’s site – and should the job seeker refuse to provide his password, he may be denied employment. As this practice has become publicized, there have been some strong reactions. Facebook stated that under no circumstances should a user provide his password to another individual, since this practice violates Facebook’s user agreement. However, this does not directly address the First and Fourth Amendment issues of freedom of speech and freedom of privacy. The primary issue here is: Do employers have the right to monitor potential employees’ speech, and to investigate their privately-posted material? Senators Charles Schumer (NY) and Richard Blumenthal (CT) feel they may not and have requested that the Department of Justice investigate if the practice violates federal law. Additionally, some states are taking matters into their own hands. As reported by ABC News, Maryland has already passed legislation that makes it illegal for employers to demand social media passwords from potential employees.

An even more troubling instance of monitoring was reported in Wired magazine by journalist James Bamford. His article regarding the NSA reveals that the United States Government is in the business of surveillance. A $2 billion dollar facility is being built in Bluffdale, Utah, called the Utah Data Center. As Mr. Bamford reports, the purpose of the “listening center” is to monitor citizens’ (and foreigners’) emails, cellphone calls, Google searches and electronic purchases. The center will have enough data storage that, for example, all the phone calls and emails of a single person can be easily collected and stored. Meaning that anything you say has the potential to be monitored and later used against you. In such a situation, one justifiably wonders if soon one’s ideas and speech will be free at all.

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