4th Amendment Expectation of Privacy in Vehicle’s SDM

George Xinos was “convicted by a jury of vehicular manslaughter, failing to stop at scene of an accident resulting in the death or permanent, serious injury of another person, driving under the influence of alcohol and causing injury . . . and driving under the influence of alcohol with a blood alcohol level of at least 0.08 percent and causing injury”, all in violation of California law. People v. Xinos, 192 Cal.App.4th 637, --- Cal.Rptr.3d ----, 2011 WL 386864 (California Court of Appeals 2011).

He appealed, arguing that the trial judge erred in denying his motion to suppress evidence downloaded from “his vehicle's sensing and diagnostic module (SDM), also sometimes referred to as an event data recorder (EDR)”. People v. Xinos, supra.

To understand the charges, and the nature and import of the motion to suppress, it is necessary to review the facts that led to Xinos’ convictions:

At about 12:30 a.m. on May 6, 2006, a white SUV driven by [Xinos] struck and killed Marcus Keppert, who was crossing Almaden Expressway at Camden Avenue. . . .

Kay Hoagland. . . . saw a pedestrian . . . . go out into the intersection and she saw a white SUV strike him in lane number one, next to the left turn lane. . . . Following the collision, she . . . called 9-1-1. . . .

Aaron Weiss was driving northbound on Almaden Expressway. . . . As Weiss approached the intersection at Camden, he saw the pedestrian's legs . . . lit up by the SUV's headlights and `then almost simultaneously thereafter [he saw] brake lights and then the collision.’ . . . Weiss saw the SUV stop north of the intersection. Weiss . . . pulled up behind the SUV. . . . [Xinos]. . . . drove away and Weiss followed. . . . Weiss . . . called 9-1-1 and gave the license plate number. . . .

Sometime after midnight on May 6, 2006, San Jose Officer Forrester responded to a citizen report that a suspicious vehicle was parked in front of the person's house. . . . When he arrived . . . he observed a vehicle with fresh body damage and blood . . . on it. The officer then began taking photos of the vehicle. . . . As he was doing so, the fog lamps flashed once, which indicated to him that `someone with a key fob set off the button.’ Forrester `began to walk door to door because [he knew] the remote normally only works within about 150 feet.’

Forrester made contact with [Xinos] in the doorway of a house on the same side of the street. [Xinos] said the vehicle belonged to him. . . . [He] was obviously intoxicated. . . . The officer arrested [Xinos], searched him incident to arrest, and recovered the key fob from a pocket. He filled out a tow sheet to have the vehicle, which was suspected to have been in a hit and run collision, moved . . . to the police warehouse. . . . Officer Almaraz arrived . . . and took [Xinos] into custody. . . .

Officer Checke, the lead investigator on the case, and her partner Officer Cassidy went to the intersection of Almaden Expressway and Camden Avenue in the early morning hours of May 6, 2006. After she learned that the driver and vehicle were nearby, she proceeded to that location and took photographs of the vehicle. She then returned to the scene of the collision. Officers Checke and Cassidy took photographs of the scene.

People v. Xinos, supra.

After investigating the case for several days, Officer Checke and another officer went to

the vehicle impound location and downloaded the data contained in the vehicle's SDM. They accomplished the download using a cable connected to the diagnostic link connector (DLC), which was located underneath the vehicle's dash area on the driver's side. An SDM receives data from various inputs related to the vehicle's restraint systems, seat belt pretensioners and airbags. The data includes information regarding engine speed, vehicle speed and deceleration, throttle percentage, braking, airbag deployment, and the restraint system. The officers did not expect any data from the collision to have registered because none of the airbags had deployed.

During subsequent training in November 2007, Officer Checke learned there could be data in the SDM even if the airbags did not deploy. Deceleration of the vehicle, for any reason, can cause the module to `wake up.’ The module does not date stamp the data. Every time the ignition is turned on, a cycle registers. The cycle corresponding to the collision needed to be identified.

Using software, Checke produced a crash data retrieval (CDR) report. It showed information captured during the five seconds before [Xinos’] vehicle experienced a change in velocity. It disclosed the vehicle's speed during the five seconds before the incident. The data indicated that there had been brake activation but the braking `could just be covering the pedal’ and was not necessarily hard braking.

People v. Xinos, supra.

The opinion notes that the officers “did not seek a search warrant permitting the download of the data”, and that the module was “not in plain view.” People v. Xinos, supra. To access it, the officers “used crowbars to open the hood” of Xinos’ vehicle and used a cable to connect a laptop “equipped with CDR software to the module through a DLC port in the vehicle’s interior.” People v. Xinos, supra. They then “turned on the ignition with a key and executed the download.” People v. Xinos, supra.

Prior to trial, Xinos moved to suppress the information obtained from his vehicle, arguing that downloading the data “from his vehicle's sensing and diagnostic module (SDM) . . . violated his Fourth Amendment rights”. People v. Xinos, supra. The prosecution argued that “no search warrant was required because defendant had no reasonable expectation of privacy in the SDM's data, analogizing to electronic beepers and emphasizing the diminished expectation of privacy in vehicles.” People v. Xinos, supra. As I noted earlier, the trial judge denied his motion to suppress, and Xinos raised the issue again on appeal. People v. Xinos, supra.

Both parties essentially renewed those arguments on appeal:

[Xinos] argues that he had a reasonable expectation of privacy in the data contained in his vehicle's SDM and that downloading of the data . . . constituted a search unsupported by probable cause in violation of the Fourth Amendment. He asserts that neither the search incident to arrest exception nor the automobile exception to the warrant requirement applied. The Attorney General argues that [Xinos] had no reasonable expectation of privacy in the SDM's data and, in any case, police had probable cause to search the SDM.

People v. Xinos, supra.

Both parties agreed, on appeal and when Xinos moved to suppress at trial, that the vehicle “was lawfully in the police department’s possession when the officers downloaded the data from” its SDM. People v. Xinos, supra. This, of course, meant there was “no argument that the warrantless seizure” of the vehicle violated the 4^th Amendment. People v. Xinos, supra. The only 4^th Amendment issue, then, was whether downloading the data was an “unreasonable” search, i.e., a search that violated the 4^th Amendment.

The Court of Appeals, then, had to determine if downloading the data was a search under the U.S. Supreme Court’s decision in Katz v. U.S. 389 U.S. 347 (1967). As I’ve noted before, in Katz the Court said we have a 4^th Amendment reasonable expectation of privacy in a place or thing if (i) we subjectively believe it’s private and (ii) society agrees that our expectation is objectively reasonable.

On appeal, the prosecution argued that Xinos had “not demonstrated that he had a subjective expectation of privacy in the SDM's recorded data because he was driving on the public roadway and others could observe his vehicle's movements and speed.” People v. Xinos, supra. The Court of Appeals agreed that Xinos “could not have claimed any reasonable expectation of privacy with respect to governmental observations . . . of his driving on public roads.” People v. Xinos, supra.

The Court of Appeals then turned to another issue raised by the prosecution: the diminished 4^th Amendment expectation of privacy we have in our vehicles. People v. Xinos, supra. In its opinion, the court traces the cases in which the U.S. Supreme Court has held that individuals have a

lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves . . . as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’

Cardwell v. Lewis, 417 U.S. 583 (1974) (quoting Katz v. U.S., supra). The court also noted, however, that comments the Supreme Court has made in several of its opinions at least indirectly “confirm[] that vehicles continue to be protected” by the 4^th Amendment. People v. Xinos, supra.

The Court of Appeals then ruled in Xinos’ favor:

We do not accept the Attorney General's argument that [Xinos] had no reasonable expectation of privacy in the data contained in his vehicle's SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person's driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else.

But we do not agree with [Xinos] that a manufacturer-installed SDM is a `closed container’ separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's SDM.

People v. Xinos, supra.

The court then found that the download of the data was not “supported by probable cause”, which is essential for a search to be constitutional under the vehicle exception to the 4^th Amendment’s warrant requirement. People v. Xinos, supra. Since it also found that the use of the data as evidence at trial was not harmless error, i.e., could not conclusively be said not to have influenced the verdict, the Court of Appeals reversed the judgment in the case and remanded with directions to grant Xinos’ motion to suppress. People v. Xinos, supra.

The court noted that on “remand, the prosecution may elect to retry the vehicular manslaughter charge and the bodily injury allegations”. People v. Xinos, supra. If the prosecution decides not to retry him on these two counts, the Court of Appeals directed that he be resentenced on the remaining counts. People v. Xinos, supra.

Unallocated Space Insufficient to Establish Possession

As I’ve noted in earlier posts, the issue of whether a defendant “possessed” child pornography has, in some case, come down to the issue of whether images stored in a computer’s cache files constitute possession. This post is about a case that raises a similar, but somewhat different, issue.

The case is U.S. v. Flyer, __ F.3d __, 2011 WL 383967 (U.S. Court of Appeals for the 9^th Circuit 2011), and it arose on March 9, 2004, when FBI Special Agent Robin Andrews

initiated a session on LimeWire. . . . Andrews launched LimeWire and typed in the search term `PTHC,’ an apparent acronym for `pre-teen hardcore,’ a term associated with child pornography. She identified a file titled `O-KIDDY-PTHC BW025.jpeg’ and selected a host computer that appeared to have the file available for download. Andrews clicked `browse host,’ a LimeWire feature that allows users to view all the files available for download from a host computer's `share’ folder.

The host computer Andrews had selected listed 261 files available for download, including around twenty files with titles associated with child pornography. Andrews downloaded `O-KIDDY-PTHC BW025.jpeg’ from the host computer. She tried to download a second file . . . but was unsuccessful.

On March 10, Andrews . . . again used LimeWire to search . . . `PTHC’ and determined that the same host computer had sixty files available for download with titles associated with child pornography. Andrews downloaded one file containing such a title, and tried, but was again unable, to download a second file. . . .

Andrews identified the Tucson address associated with the host computer by contacting an internet access provider in Arizona. [Andrew] Flyer lived at the Tucson address, along with his father, mother, and sister.

After securing a warrant, agents executed a search of the property on April 13, 2004. They seized from Flyer's bedroom a Gateway computer, loose media . . . and an Apple laptop. . . .

Flyer . . . admitted . . . he used the Gateway computer and Apple laptop in his bedroom, had downloaded, saved, and shared child pornography . . . and knew it was illegal to possess. . . . [He] admitted to having saved a minimal amount of child pornography onto his shared folder on LimeWire and around one hundred child pornography files on a computer.

U.S. v. Flyer, supra.

Flyer was charged with and convicted of “two counts of attempted transportation and shipping of child pornography (Counts One and Two); one count of possession of child pornography on the unallocated space of a Gateway computer hard drive (Count Three); and one count of possession of child pornography on CDs (Count Four)”, all in violation of 18 U.S. Code § 2252. U.S. v. Flyer, supra. He appealed, arguing that “the evidence was insufficient to establish the jurisdictional and intent elements of his convictions on Counts One and Two and the possession element of his conviction on Count Three.” U.S. v. Flyer, supra. (He apparently abandoned an earlier “challenge to the jurisdictional element of Count Four . . . at oral argument” on appeal. U.S. v. Flyer, supra.)

Later, I’ll say a bit about Flyer’s arguments on Counts One and Two, but this post is primarily about the Count Three possession charge. As noted above, Flyer claimed that the evidence presented at his jury trial was not sufficient to support his conviction for

possession `on or about April 13, 2004’ of child pornography on the Gateway computer in violation of 18 U.S. Code § 2252(a)(4)(B). . . . [which] provides that any person who `knowingly possesses . . . with intent to view, 1 or more books, . . . videotapes, or other matter’ containing visual depictions of a minor engaged in sexually explicit behavior shall be punished. . . . Flyer contends that the evidence is insufficient to establish that he `possesse[d]’ the files.

U.S. v. Flyer, supra.

The 9^th Circuit began its analysis of Flyer’s argument by noting that “possession” is

`”[t]he fact of having or holding property in one's power; the exercise of dominion over property.”’ U.S. v. Romm, 455 F.3d 990, 999 (9<sup>th</sup> circuit 2006) (quoting BLACK'S LAW DICTIONARY 1183 (7th ed.1999)). `[T]o establish possession, the government must prove a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over [it].’ Id. (internal quotation omitted) (alteration in the original).

U.S. v. Flyer, supra. It then explained that the images charged in Count Three were all

in `unallocated space’ on the Gateway hard drive. Unallocated space is space on a hard drive that contains deleted data, usually emptied from the operating system's trash or recycle bin folder, that cannot be seen or accessed by the user without the use of forensic software. Such space is available to be written over to store new information. Even if retrieved, all that can be known about a file in unallocated space (in addition to its contents) is that it once existed on the computer's hard drive. All other attribute -- including when the file was created, accessed, or deleted by the user -- cannot be recovered.

Files in unallocated space differ from cache files, which are a `set of files kept by a web browser to avoid having to download the same material repeatedly ... so that the same images can be redisplayed quickly when you go back to them.’ [U.S. v. Romm, supra.] Cache files are located in `an area to which the internet browser automatically stores data to speed up future visits to the same websites.’ [U.S. v. Romm, supra.] The user does not manually save the cache files, but can access them and `print, rename, [or] save [them] elsewhere, the same thing [he or she could] do with any other file’. . . . [U.S. v. Romm, supra.]

U.S. v. Flyer, supra.

Flyer argued (i) that “there was insufficient evidence to establish that he exercised dominion and control over the images recovered from the unallocated space on the hard drive” or (ii) that “even if he could be said to have `possessed’ the images before their deletion, no evidence indicated that the possession occurred during the time period charged in the indictment.” U.S. v. Flyer, supra. The Court of Appeals noted that its “precedent relating to cache files suggests that a user must have knowledge of and access to the files to exercise dominion and control over them.” U.S. v. Flyer, supra.

In Romm, supra, the 9^th Circuit affirmed Romm’s conviction for possessing of child pornography images “deleted from the internet cache of his computer” because it found he had “`access to, and control over, the images . . displayed on his screen and saved to his cache.’” U.S. v. Flyer, supra (quoting U.S. v. Romm, supra). In U.S. v. Kuchinski, 469 F.3d 853 (9^th Circuit 2006), the 9^th Circuit held that it “could not consider images recovered from the cache” for sentencing when “no evidence indicated the defendant had tried to access the cache files or knew of their existence.” U.S. v. Flyer, supra.

Based on these precedents and its review of other cases, the 9^th Circuit found that

Flyer's conviction must be reversed. . . . The government concedes that it presented no evidence Flyer knew of the presence of the files on the unallocated space of his Gateway computer's hard drive. The government also concedes it presented no evidence that Flyer had the forensic software required to see or access the files. Unlike Romm, there is no evidence here that Flyer had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment.

U.S. v. Flyer, supra.

The government argued, in response, that “evidence demonstrating that the files had at some point been deleted, resulting in their placement in unallocated space, is sufficient to establish possession.” U.S. v. Flyer, supra. The government relied on the 11^th Circuit Court of Appeals’ decision in U.S. v. Shiver, 305 F. App’x 640 (2008), “for the proposition that one method for a defendant to exercise dominion and control over an image is to destroy a copy of the image located on his computer.” U.S. v. Flyer, supra.

The 9^th Circuit found, however, that the

deletion of an image alone does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of § 2252(a)(4)(B). No evidence indicated that on or about April 13, 2004, Flyer could recover or view any of the charged images in unallocated space or that he even knew of their presence there.

U.S. v. Flyer, supra. The court therefore reversed Flyer’s conviction on Count Three. U.S. v. Flyer, supra.

And now a bit about Counts One and Two which charged Flyer with attempted transportation and shipping of child pornography. As I also noted above, on appeal he argued, in part, that the evidence presented at trial was not sufficient to establish the jurisdictional elements of his convictions on these two counts. U.S. v. Flyer, supra.

In ruling on his argument, the court noted that it had held, in a case involving a statute with a jurisdictional element “effectively identical to that under which Flyer was charged in Counts One and Two”, that the prosecution must show “actual transportation of child pornography across state lines.” U.S. v. Flyer, supra. That was a problem in this case:

[T]he government concedes that it presented no evidence at trial directly showing that the two files downloaded by Andrews traveled across state lines. Furthermore, Flyer cites uncontroverted expert testimony that a file shared between two users through LimeWire would not leave Tucson if, as here, both the host computer and recipient were located within that city. Andrews' intra state download of files from Flyer's computer cannot by itself . . . provide sufficient evidence to convict Flyer of attempting to cause those files' inter state or foreign movement.

U.S. v. Flyer, supra (emphasis in the original).

The court therefore reversed his convictions on Counts One and Two (and consequently did not reach his other argument that the evidence did not establish “the requisite specific intent for the crime”). U.S. v. Flyer, supra. It also remanded the case for sentencing on the only remaining count: Count Four. U.S. v. Flyer, supra.

Compelled Consents and Facebook

This is a follow-up to my last post, in which I examined Juror Number One’s efforts to avoid being required to execute a consent form that would allow Facebook to provide postings from his Facebook page to certain attorneys.

As I explained in that post, the attorneys represented the criminal defendants at whose trial Juror Number One served as a juror and as jury foreperson. The defendants’ lawyers sought the postings because the lawyers were investigating the possibility he engaged in juror misconduct during that criminal trial.

If you want to know more about what allegedly happened at the criminal trial and with regard to Juror Number One’s efforts to avoid being required to help the defendants’ attorneys obtain the postings, then you should check out my last post. This one isn’t about Juror Number One’s efforts to avoid giving the defendants and their attorneys access to his (alleged) postings. It is, instead, my generally hypothetical analysis of the Constitutional issues Juror Number One cited as to why he should not be required to provide access to the postings.

We’ll begin by reviewing how the trial court judge (Judge Kenny) sought to require Juror Number One to provide access to them. As I explained in my last post, the judge quashed (nullified) a subpoena the defendants’ lawyers issued to Facebook, in an effort to obtain the postings directly from the company that, in effect, has “custody” of them. The judge apparently found that the subpoena violated Juror Number One’s privacy rights under the California Constitution (which I’m not going to address here) and under a federal statute – the Electronic Communications Privacy Act. I’m not going to deal with the statute here, either; as I noted earlier, in this post I’m only going to focus on the U.S. Constitutional issues that might be implicated by the approach the judge took to getting Juror Number One to give the defendants and their attorneys access to the postings.

As I explained in my last post, On February 4, 2011, after he quashed the subpoena Judge Kenny “issued an Order . . . requiring [Juror Number One to] . . `execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the posting made by Juror # 1 during trial.’” Complaint ¶ 28, Juror Number One v. State of California, et al., U.S. District Court for the Eastern District of California, No. CIV. 2:11-397 WBS JFM.

As I also explained in my last post, under 18 U.S. Code § 2702(b)(3), Facebook can “divulge the contents of a communication . . . with the lawful consent of the originator . . . of such communication”. Otherwise, the statue bars a provider of such services from “divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service”. 18 U.S. Code § 2704(a)(1).

That reminded me of a tactic federal prosecutors used (and maybe still use) to gain access to secret foreign bank accounts, a tactic that was challenged on the grounds it violated the 5^th Amendment privilege against self-incrimination. Since Juror Number One claims the judge’s order violates his 5^th Amendment privilege, I thought it would be useful to analyze Judge Kenny’s order based on the Supreme Court’s analysis of the similar tactic used to gain access to secret offshore bank accounts.

The case is Doe v. U.S., 487 U.S. 201 (1988). John Doe was the target of a federal grand jury investigation “into possible federal offenses arising from suspected fraudulent manipulation of oil cargoes and receipt of unreported income.” U.S. v. Doe, supra. The grand jury served Doe with a subpoena that required him to produce “records of transactions in accounts at three named banks in the Cayman Islands and Bermuda.” U.S. v. Doe, supra. He produced some records and said no additional records that were responsive to the subpoena were in his “possession or control.” U.S. v. Doe, supra. Federal agents served subpoenas on the three banks, but they refused to comply and produce records, “[c]iting their governments’ bank-secrecy laws, which prohibited the disclosure of account records without the customer’s consent.” U.S. v. Doe, supra.

That left federal prosecutors at an apparent impasse, but they had a new trick up their sleeves: They filed a motion with the local federal district court asking the court to order Doe to execute “forms consenting to disclosure of any bank records respectively relating to 12 foreign bank accounts over which” the government knew or believe he had control. U.S. v. Doe, supra. The motion led to a lot of litigation, but eventually the federal district court judge ordered Doe to sign the forms, which were commonly known as “compelled consents.” U.S. v. Doe, supra. He refused, citing his 5^th Amendment privilege, and the issue went all the way to the Supreme Court. U.S. v. Doe, supra.

As I’ve explained in earlier posts, to be able to claim the 5^th Amendment privilege you have to be (i) compelled to (ii) give testimony that (iii) incriminates you, i.e., implicates you in a crime. The subpoena compelled Doe to sign the forms because if he didn’t comply, he would be held in civil contempt and lock up until he did. We’ll assume, as the courts did, that signing the forms could be incriminating. The issue was whether signing them was “testimony,” and the Supreme Court decided it was not: “[N]either the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government.” U.S. v. Doe, supra.

In finding that signing the forms was not “testimony,” the Court relied on two factors: The form didn't’ identify any particular bank or bank account; it said Doe directed any bank at which he had any account to disclose account information to prosecutors or grand jury. U.S. v. Doe, supra. The other factor was that the form didn’t say that Doe was consenting; it said that the form “shall be construed as consent” to provide access to the accounts. U.S. v. Doe, supra.

We read the [form] as equivalent to a statement by Doe that, although he expresses no opinion about the existence of, or his control over, any such account, he is authorizing the bank to disclose information relating to accounts over which, in the bank's opinion, Doe can exercise the right of withdrawal. . . . When forwarded to the bank along with a subpoena, the executed directive . . . will simply make it possible for the recipient bank to comply with the Government's request to produce such records. . . . [T]he only factual statement made by anyone will be the bank's implicit declaration, by its act of production in response to the subpoena, that it believes the accounts to be [Doe’s].

U.S. v. Doe, supra. So Doe lost on his attempt to take the 5^th and refuse to sign the form.

That brings us back to Juror Number One, who’s effectively being required to execute a Facebook-specific compelled consent. Does the decision in Doe foreclose him from taking the 5^th and refusing to sign the form? The attorneys for the criminal defendants will no doubt argue that Juror Number One can’t take the 5^th because, while he is being compelled to sign the consent form (he’ll be held in contempt if he doesn’t), he isn’t being compelled to give “testimony” that “incriminates” him. For the purposes of this analysis, I’m going to assume that the alleged Facebook postings described in my prior post would incriminate Juror Number One in some type of criminal activity – enough to trigger the “incriminating” element of the 5^th Amendment analysis. That leaves the “testimony” issue.

The resolution of that issue, IMHO, depends on several things. If I represented Juror Number One, I’d argue that the consent he’s being required to execute differs from the Doe compelled consent in that it does, in fact, identify the existence of and his ownership of a specific Facebook account. I would use that to try to distinguish Doe from his case and establish that unlike Doe, Juror Number One can, in fact, take the 5^th and refuse to sign the form. In other words, I’d say that unlike Doe, Juror Number One would be “telling” the defendants’ lawyers something.

If, on the other hand, I represented the criminal defendants in this matter, I’d say the fact that the compelled consent is Facebook-specific is irrelevant on the facts in this case. What we’re talking about here, as I’ve explained in prior posts, is whether the act of producing tangible evidence constitutes “testimony” under the 5^th Amendment. As I noted in another post, even if the person who’s been subpoenaed or ordered to produce evidence shows that the act of producing it is “testimony,” he/she will lose the ability to invoke the 5^th Amendment privilege if the existence and his/her possession and control of the evidence is a “foregone conclusion.”

Here, as I noted in my prior post, we know at least one other person – Juror Number Five – friended Juror Number One during the trial and read comments Juror Number One posted on his Facebook page during the trial. If I represented the criminal defendants, I’d argue that this circumstance makes the existence of Juror Number One’s Facebook page and his possession and control of the page and postings on it a “foregone conclusion” and, in so doing, deprives him of the ability to invoke the 5^th Amendment and refuse to sign the consent form.

That leaves Juror Number One’s other Constitutional argument: that requiring him to sign the form and thereby provide the attorneys for the criminal defendants with access to his Facebook postings would violate his 4^th Amendment right to privacy. I think this will be a challenging argument to make: As I’ve noted in earlier posts, the Supreme Court held, in Smith v. Maryland, 442 U.S. 735 (1979), that we have no 4^th Amendment expectation of privacy in information we share with third parties.

In Smith, it was the numbers Smith dialed from his home phone; today, courts apply the Smith holding to web browsing data, ISP subscriber data and a host of other records. The premise behind the Smith holding was that by sharing information (phone numbers, IP addresses, etc.) with a third party (phone company, ISP, web-site), I assume the risk that the third party will give that information to law enforcement (or anyone else).

So, if I represented the criminal defendants, I’d cite Smith and use it to refute Juror Number One’s argument that he has a 4^th Amendment expectation of privacy in his postings on his Facebook page. I could also simply argue the basic Katz v. U.S. assumption of risk principle: what a person knowingly exposes to public view is not private. So, I’d argue that by posting statements on his Facebook page, Juror Number One surrendered any 4^th Amendment expectation of privacy in those postings.

If I represented Juror Number One, I’d try using a relatively recent decision from the U.S. Court of Appeals for the 6^th Circuit to rebut the Smith-Katz arguments. In U.S. v. Warshak, 2010 WL 507176 (6^th Cir. 2010), the Court of Appeals held that Warshak “enjoyed a [4^th Amendment] reasonable expectation of privacy” in emails he left stored with his ISP. So, I could use the recent Warshak decision to argue that Juror Number One’s Facebook page (and account) is analogous to Warshak’s ISP account, i.e., both have (should have) a 4^th Amendment expectation of privacy in the content they leave stored in those accounts.

As I noted in my prior posts, Juror Number One also has a federal statutory argument, which I’m not going to deal with here. I wanted to focus on the potential Constitutional issues the case might present.