The Vehicle Exception and Laptops

This post is about the extent to which officers may be able to search a laptop without first obtaining a search warrant . . . if the laptop is being carried in a car or other vehicle.

As I’ve explained in earlier posts, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures. “Reasonable” searches and seizures therefore don’t violate the 4^th Amendment.

As I’ve also explained, the default way for a search or seizure to be reasonable is for it to be conducted pursuant to a warrant -- a search and/or seizure warrant.

As I’ve noted in several posts, a search and/or seizure can be “reasonable” even though it was not authorized by a search/seizure warrant. As I’ve noted, the Supreme Court has recognized a number of exceptions to the warrant requirement, such as the consent and exigent circumstance exceptions. This post is about another of those exceptions – the one that is usually known as the “vehicle exception” (or as the “automobile exception”).

As Wikipedia explains, the modern version of the vehicle exception dates back to 1925, when the U.S. Supreme Court decided Carroll v. United States, 267 U.S. 132. In the Carroll case, federal prohibition agents (alcohol prohibition’s version of the DEA) had probable cause to believe a car driving from Detroit to Grand Rapids was carrying illegal liquor. The agents stopped the car and found illegal liquor, but not before they pretty much tore it apart. Carroll moved to suppress the evidence, arguing that the agents should have gotten a warrant. The Supreme Court upheld the search, citing old cases that said officers didn’t have to get a warrant to search mobile objects, such as ships.

The initial justification for what came to be known as the vehicle exception, then, was the vehicle’s mobility; as the Carroll Court noted, a vehicle can be moved out of the jurisdiction, perhaps before officers can get a warrant. That exigency – like the broader exigencies that justify the exigent circumstances exception – justifies letting officers act without first getting a warrant, as long as they have probable cause to believe evidence will be found in the vehicle to be searched. The exception substitutes for the warrant.

As Wikipedia notes, the modern Supreme Court has found that the vehicle exception is also justified by the lesser expectation of privacy we have in our vehicles. In California v. Carney, 471 U.S. 386 (1985), the Court said that because cars are highly regulated by the states (e.g., licensing, vehicle inspections, etc.), we have a reduced expectation of privacy in automobiles and other vehicles.

I’ve been looking for a case in which the prosecution relied on the vehicle exception to justify the warrantless search of a laptop. I still haven’t found a case that specifically addresses that issue, but a recent decision from the U.S. Court of Appeals for the Tenth Circuit comes close.

The case is U.S. v. Burgess, 2009 WL 2436674 (2009) and here, according to the court, are the facts that eventually led to the filing of a motion to suppress:

On July 24, 2007, Wyoming Trooper Matt Arnell observed a motor home with Nevada license plates at a restaurant parking lot in Evanston, Wyoming. It was towing a trailer bearing an expired Wyoming license plate. Arnell was aware (from a prior briefing) the motor home was associated with the Hell's Angels motorcycle club. He verified that the trailer plate was expired but did nothing more until the motor home was driven on to Interstate 80 heading east. As Arnell followed the vehicle, he called for a drug canine to be brought to the area. He then stopped the motor home to issue a citation for the expired plate. When the driver, Shayne Waldron, stepped out, Arnell smelled . . . burnt marijuana. As Arnell spoke with Waldron, a passenger in the motor home, David Burgess, joined the conversation. Burgess said he was the owner of the motor home and both men acknowledged the trailer's license plate was expired. Burgess explained the trailer belonged to a person who permitted them to use it and they were traveling to another town in Wyoming to update the registration and obtain current plates.

As Arnell was issuing a citation for the expired plate, Deputy David Homar and his canine, Blitz, arrived. Blitz . . . alerted at the doors of the motor home. Trooper Arnell informed Burgess he was going to search the vehicle. Burgess said he would rather Arnell get a warrant. Nevertheless, because of the suspicions raised by Blitz's alert and the smell of marijuana, Arnell entered the motor home where he found marijuana, a pipe, and two bags of cocaine -- each containing approximately seven grams. Arnell advised Waldron and Burgess of their [Miranda] rights. . . . Burgess admitted the marijuana was his. Arnell resumed the search. He noticed a laptop computer and a Seagate hard drive in the bedroom. After approximately fifteen to thirty minutes, Arnell left the motor home and arranged to have it towed to a Wyoming Department of Transportation shop for further inspection.

U.S. v. Burgess, supra. Another officer met Arnell at the shop; they obtained a warrant to search the motor home for evidence, including “computer records,” that related to the “transportation and delivery of controlled substances”. U.S. v. Burgess, supra. When they executed the warrant, the seized the laptop and the Seagate hard drive, along with a Maxtor hard drive they found when conducting that search. U.S. v. Burgess, supra. When a police investigator analyzed the seized items, he found child pornography on the Seagate and Maxtor hard drives, but not on the laptop. U.S. v. Burgess, supra. Burgess was charged with possessing and transporting child pornography across state lines, and moved to suppress the evidence.

Burgess claimed the search was no good because of problems with the search warrant. The prosecution argued that (i) the warrant was valid but (ii) if it wasn't, the search was valid under the vehicle exception. U.S. v. Burgess, supra. The district court denied the motion to suppress and a jury convicted Burgess on both charges. U.S. v. Burgess, supra.

In appealing his conviction, Burgess renewed his claim that the seizure and search of his laptop and hard drives violated the 4^th Amendment. The prosecution again claimed the vehicle exception justified both, even if the warrant did not. On appeal, Burgess did not

quarrel about the search of his motor home for drugs. Rather, he contends the application of the automobile exception to search the computer and hard drives found in his motor home would grant police `the authority to forensically . . . conduct a general search of any computer found in any automobile which was subject to a valid search under the automobile exception.’ . . . While a computer may be a container, because of the amount of personal information stored within, Burgess argues it is a virtual home. He says in this `age of the laptop computer,’ such an `extraordinary expansion’ of the automobile exception would `destroy a citizen's expectation of privacy in his computer.’

U.S. v. Burgess, supra. In ruling on Burgess’ argument, the Court of Appeals noted that the Supreme Court has not addressed this issue and it could not find any cases dealing with the topic. The court therefore undertook its own analysis of the issue.

The Court of Appeals began by observing that a computer, like a briefcase or suitcase, is a container and the exception applies to containers being carried in vehicles. U.S. v. Burgess, supra. It noted that a computer MIGHT differ from more conventional containers because of the “sheer range and volume of information the computer may contain.” U.S. v. Burgess, supra. The Court of Appeals observed that in California v. Acevedo, 500 U.S. 565 (1991), the Supreme Court indicated that, for the purposes of applying the vehicle exception, a container is a container is a container. In other words, there is no difference between a paper bag and a briefcase. U.S. v. Burgess, supra.

But then the Court of Appeals engaged in some speculation that seems sympathetic to the argument Burgess was making:

Practically speaking, the forensic search of a hard drive (or its equivalent, such as a flash drive) will rarely be conducted at the `site’ while searching an automobile, given the potential to corrupt or lose evidence. Arguably, requiring the government to secure a warrant prior to searching the contents of a properly seized computer is typically not overly burdensome in light of the privacy interests at stake. However, sometimes the police may not resort to forensic programs like EnCase. Assuming probable cause to do so, they might simply turn the computer on and conduct a superficial search. Nothing in Acevedo suggests either type of search . . . would be impermissible without a warrant, but seemingly well settled matters are subject to change. . . . In spite of clear language in Acevedo, one might speculate whether the Supreme Court would treat laptop computers, hard drives, flash drives or even cell phones as it has a briefcase or give those types of devices preferred status because of their unique ability to hold vast amounts of diverse personal information.

U.S. v. Burgess, supra.

The Court of Appeals ultimately did not rule on the merits of Burgess’ argument as to the restricted applicability of the vehicle exception to laptops and other computer media. It held that, although the search warrant application “`could have been more artfully prepared’”, the warrant was valid and authorized the search of the laptop and the hard drives. U.S. v. Burgess, supra.

Burgess’ argument is a version of an argument that has been made in other contexts. As I’ve noted, people have challenged the application of the border search exception to laptops on the grounds that laptop are containers of such complexity that they present unique 4^th Amendment privacy issues. Others have made similar arguments with regard to the application of the search incident to arrest exception to laptops (and cellphones), as well as in other contexts.

Some courts have been sympathetic to that argument. I think the Ninth Circuit’s opinion in the Comprehensive Drug Testing case, which I discussed in a recent post, reflects concerns similar to those Burgess raised in this case. The problem I see with the “computers are complex containers and must therefore be governed by special rules” argument goes to line-drawing. If a court were to buy Burgess’ argument, what would it do? Would it say that an officer who’s authorized to conduct a vehicle exception search of an automobile can’t turn on a laptop he finds in the car to see if it is, in fact, a laptop? Or would the court try to draw some fine distinctions between, say, simply turning on the laptop and looking through its files?

Soliciting Violence?

I’ve done several posts that dealt with using cyberspace to threaten someone (or something) with harm. This post is about a related crime: using cyberspace to solicit someone to commit a crime of violence against another person.

As Wikipedia explains, solicitation is “the name of a crime, an inchoate offense that consists of a person offering money or something else of value . . . to . . . induce another to commit a crime”.

As I’ve noted, inchoate crimes – like solicitation and attempt – are incomplete crimes; that is, neither is a free-standing crime. It is simply not possible to commit “attempt” or “solicitation.” Like conspiracy (the third inchoate offense), attempt and solicitation necessarily involve a “target crime” -- a substantive crime (like murder) that is the object of the attempt or conspiracy. So one can, for example, commit solicitation of the target crime or murder or attempt to commit the target crime of murder.

The rationale for criminalizing solicitation is essentially the same as the rationale for criminalizing conspiracy: Both involve concerted action by two or more people, all of whom are determined to see that one or more substantive crimes (e.g., murder, robbery, arson) are committed. The drafters of the Model Penal Code explained that a

solicitation is, if anything, more dangerous than a direct attempt, because it may give rise to the special hazard of cooperation among criminals . . .. Moreover, the solicitor, working his will through one or more agents, manifests an approach to crime more intelligent and masterful than the efforts of his hireling.

Commentary to § 5.02 of the Model Penal Code (Proposed Official Draft 1985).

This post is about the case in which the “government charged William White with violating 18 U.S. Code § 873 by soliciting another person to harm the foreperson of the federal jury that convicted white supremacist leader Matthew Hale.” U.S. v. White, 2009 WL 2244639 (U.S. District Court for the Northern District of Illinois 2009). As this opinion explains, “in 2003, a jury in the Northern District of Illinois convicted Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale's organization.” U.S. v. White, supra. Hale was sentenced to 480 months in prison for the crime. U.S. v. White, supra. As the opinion also explains, on October 21, 2008

the government indicted [White], alleging that on his website, Overthrow.com, he solicited or otherwise endeavored to persuade another person to harm `Juror A,’ the Hale jury foreperson. Specifically, the government alleged that on or about September 11, 2008, [White] displayed on the front page of his website a post entitled, `The Juror Who Convicted Matt Hale.’ The post read:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].

(Indictment [R. 5] at 2 ¶ 3, alterations in original.). . . .

U.S. v.White, supra. The indictment further alleged that on September 12, 2008, [White] displayed on the front page of his website a post entitled: `[Juror A] Update-Since They Blocked the first photo’ and stating:

Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number]. Note that [University A] blocked much of [Juror A's] information after we linked to [his/her] photograph.

(Indictment at 3 ¶ 4, alteration in original.)

U.S. v. White, supra. White was indicted for violating 18 U.S. Code § 373, which provides as follows:

[w]hoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned. . . .

The indictment claimed White solicited one or more persons to violate 18 U.S. Code § 1503, which makes it a crime to injure a federal juror “on account of any verdict . . . assented to by him”. 18 U.S. Code § 1503(a).

White moved to dismiss the indictment under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. Rule 12(b)(3)(B) states that a judge can dismiss an indictment if it fails “to state an offense”, i.e., if it fails to charge the crime the defendant is alleged to have committed. The federal judge assigned the case found that in ruling on the motion, he was dealing with law, not facts; in other words, his task was to decide if the facts alleged in the indictment charged a violation of 18 U.S. Code § 373.

In deciding that issue, the judge noted the inherent tension between the § 373 crime and the First Amendment. He also noted that the Congressional committee which drafted the statute made it clear that the facts the government relied on would have to

obviate First Amendment issues. The government would first have to establish that the offender had the intent that another person commit a violent crime, and that the intent was manifested by circumstances strongly corroborative thereof. . . .The Committee listed a number of circumstances that would be highly probative of intent, including an offer of payment or other promise of benefit to the person solicited if he would commit the offense; a threat . . . if he would not commit the offense; [or] repeated solicitations or express protestations of seriousness in soliciting the commission of the offense. . . .

Second, the government would have to establish that the defendant commanded, entreated, induced or otherwise endeavored to persuade the other person to commit the crime of violence. Congress specifically rejected . . . `counsels,’ `encourages’ or `requests’ because they suggest equivocation too close to casual remarks. For example, an order to commit an offense made by a person to another with whom he stands in a relation of influence or authority would constitute a `command’; and threatening another if he will not commit an offense, or offering to pay him if he will, would constitute `inducement.’`“The phrase “otherwise endeavors to persuade” is designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct.’

U.S. v. White, supra (quoting Senate Report 97-307, at 180 (1981)).

After reviewing the indictment, the judge held that White’s “speech, as alleged in the indictment, is protected by the First Amendment and does not state a violation of § 373.” U.S. v. White, supra. He found that White’s posts concerning Juror A did not expressly

solicit or endeavor to persuade another person to harm Juror A. Rather, they disclose personal information about Juror A and comment on his/her sexual orientation and attitude toward race. Although the posts may be reasonably read as criticizing Juror A's vote to convict Hale, nowhere in them does defendant expressly advocate that Juror A be harmed.

U.S. v. White, supra. The judge explained that “[s]crutiny and criticism of those involved in the investigation and prosecution of crimes is protected by the First Amendment”, a protection that encompasses disclosing information “about the people involved”. U.S. v. White, supra.

The judge also found that the allegations in the indictment that allegedly corroborated White’s intention to solicit violence against Juror A were not enough to deprive his comments of First Amendment protection:

The first alleged corroborating circumstance is that when he posted information about Juror A, [White] was aware that white supremacists, the target audience of Overthrow.com, sometimes committed acts of violence against persons viewed as acting against the interests of the white race. However, the fact [he] knew white supremacists sometimes viewed his website and sometimes harmed people they perceived as enemies is insufficient to transform his lawful statements about Juror A into criminal advocacy, i.e., advocacy directed to inciting or producing imminent lawless action, as required by the First Amendment and § 373.

U.S. v. White, supra. The judge found that the other alleged corroborating circumstance was also not sufficient to transform White’s posts into solicitations of violence:

The second alleged corroborating circumstance is that on several occasions ranging in time from six months to three years before his posts about Juror A, [White] posted information, sometimes including home addresses, about other individuals criticized on his website and sometimes expressed a desire that these individuals be harmed. Several of these posts were accessible to persons visiting Overthrow.com at the time [he] posted about Juror A. The government's theory . . . appears to be that because [White] previously disclosed personal information about individuals and expressed a wish that they be harmed, his statements about Juror A could be found to be a violation of § 373. This theory is untenable. Defendant's other posts were created well before his Juror A posts, and none of them mention Juror A. . . . Further, the fact that in some of his pre-Juror A posts, [White] may have expressed a wish that the individuals named be harmed is hardly sufficient to transform his statements about Juror A into advocacy directed to inciting imminent lawless action and likely to cause such action as is required for the indictment to allege an offense under § 373 and the First Amendment.

U.S. v. White, supra.

The judge therefore dismissed the indictment against White. I assume the dismissal was without prejudice, which means the government can, if it is so inclined, try again with a new indictment. When an indictment is dismissed with prejudice, that ends the matter; the government can’t try again. Since the judge dismissed this indictment because the allegations it contained simply weren’t enough to support the charge that White violated § 373, I’m sure the government can, again if it is so inclined, try again. I suspect it won’t, because it sounds like there really isn’t any additional evidence that would satisfy the requirements of § 373 and the First Amendment.

This is another one of those cases – like some of the threat and stalking cases I’ve written about – in which we confront the fact that cyberspace can transform anyone into what we might call a lower-case paparazzo: someone who devotes his/her time and effort to documenting what used to be the private details of a non-celebrity’s life. I think the judge was correct in dismissing the indictment but, at the same time, I feel sorry for Juror A. I suspect none of us would be particularly happy if we acquired a lower-case paparazzo who publicized the trivial, mundane and yet “personal” details of our lives.

Evidentiary Tweets?

A while back, I got an email asking me to do a post on how the rules of evidence might apply to Twitter posts, or tweets.

I hadn’t done anything on it until now because the only reported case I can find that deals with Twitter (as opposed to a few old cases dealing with twittering birds) concerns a juror’s use of Twitter during trial.

In U.S. v. Fumo, 2009 WL 1977715 (U.S. District Court for the Eastern District of Pennsylvania 2009), Vincent Fumo moved for a new trial based in part on a juror’s using tweets to comment on aspects of the trial. The federal district court found that the juror’s tweets did not warrant the granting of a new trial because they “`were nothing more than harmless ramblings having no prejudicial effect’” on the original trial. U.S. v. Fumo, supra.

The only observation I can find as to the evidentiary admissibility of tweets was made last year on the DCIG site. Joshua L. Konkle posted an entry entitled “Twitter and Federal Rules of Evidence 803(1) and 802(2), hearsay exceptions”. You can find the post here. Mr. Konkle simply noted that “twitter won’t be subject to hearsay based on” Rules 803(1) and 803(2) of the Federal Rules of Evidence.

As I explained in an earlier post, evidence rules – like Rule 802 of the Federal Rules of Evidence – bar the use of hearsay evidence unless the evidence falls into one of the exceptions to the rule barring its use. As I also explained in that post, hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c) of the Federal Rules of Evidence.

The default rule excluding hearsay is, as I again noted in that post, based on simple fairness: If hearsay weren’t excluded, Jane Doe could take the stand at Sam Smith’s trial for murder and tell the jury that Stan Ford had told her (Jane) that Sam committed the murder Sam’s on trial for. Letting that kind of evidence in isn’t fair to Sam because if the jury believes Jane, they’re almost certain to convict him. He can, as I noted, try to overcome the prejudicial effects of Jane’s testimony by showing that she’s a liar, etc., but that may be difficult to do (she may not be a liar). And even if Jane doesn’t have a great reputation as a truth-teller, jurors tend to be influenced by stark statements that show someone’s guilty . . . even when the statements may be more than a little dubious.

For those and other reasons. Anglo-American law has long restricted the use of hearsay. Hearsay won’t come in unless it falls under one of the exceptions to the rule, exceptions each of which is based on the presence of circumstances that presumably provide some assurance that the statements aren’t fabricated. I’ve done several posts on the business records exception to the hearsay rule, which often comes up in cybercrime cases. And I did one on how another hearsay exception applied to the use of MapQuest evidence.

I strongly doubt that the business records exception or many of the other hearsay exceptions will apply to tweets . . . but the exceptions contained in Rules 803(1) and 803(2) just might.

Rule 803 of the Federal Rules of Evidence lists 24 categories of hearsay that “are not excluded by the hearsay rule”. The business records exception appears in Rule 803(6) and the exception applied to the MapQuest evidence appears in Rule 803(17).

Rule 803(1) deals with the “present sense impression” exception. Under Rule 803(1), “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is not excluded by the default hearsay rule. According to the Advisory Committee that drafted the Federal Rules of Evidence, the theory behind this exception is that

substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement. If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the statement.

Advisory Committee Note, Federal Rules of Evidence 803(1). The premise, then, is that present sense impression statements are presumptively credible because the person who made the statement – here, the person who sent the tweet -- presumably wasn’t able to formulate the intent to fabricate evidence because he/she was caught up in the moment. And if the person who sent the tweet can be cross-examined about it, that provides an additional guarantee of trustworthiness.

I’ve found a few, mostly civil cases in which courts applied the present sense impression exception to emails. In Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, 2008 WL 1999234 (U.S. District Court for the Southern District of Texas 2008), the court applied the exception to an email sent by a Silverhawk employee. Blackmon, a Canatxx employee, called Gardner, a Silverhawk employee, to tell him Canatxx “did not want to move forward on a deal” with Silverhawk. Canatxx v. Silverhawk, supra. “As soon as” the call was over, Gardner “sent an e-mail . . . relating my conversation with Blackmon” to other Silverhawk employees. Canatxx v. Silverhawk, supra. During the litigation, Canataxx challenged the admissibility of the email. The federal district judge held that it fell under the present sense impression exception because (i) Gardner sent it “as soon as” the phone call was over and (ii) in the mail he said Blackmon had “just called”. Canatxx v. Silverhawk, supra. The other cases reach similar conclusions.

Rule 803(2) deals with the “excited utterance” exception. Under Rule 803(2), “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the default hearsay rule. According to the Advisory Committee, the theory behind this exception is

simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. . . .. Spontaneity is the key factor in each instance, though arrived at by somewhat different routes. Both are needed in order to avoid needless niggling.

Advisory Committee Note, Federal Rules of Evidence 803(2). The Advisory Committee noted that while the theory behind the excited utterance exception “has been criticized on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication, . . . it finds support in cases without number.” Advisory Committee Note, supra.

The excited utterance exception often comes up in civil and criminal cases, but I can’t find any reported case in which a court has applied it to email. In U.S. v. Ferber, 966 F. Supp. 90 (U.S. District Court for the District of Massachusetts 1997), the government wanted to use an

internal Merrill Lynch E-mail message from Carey to Benjamin Moore, Carey's immediate superior, recounting a conversation with Ferber wherein Ferber inculpated himself. . . . Carey's E-mail message was printed out as a multi-paragraph document describing a Ferber-Carey telephone conversation. The E-mail message reported that Carey had consulted a co-worker concerning the conversation with Ferber and suggested how Merrill Lynch might deal with Ferber's importunities. The E-mail ended with the observation, `my mind is mush!’

U.S. v. Ferber, supra. The email was relevant because Ferber, who had been an investment banker “working principally in the area of public finance”, was charged with “taking advantage of his special position with the Public Entity Clients for his own personal gain, thereby breaching his fiduciary duty and defrauding those clients.” U.S. v. Ferber, supra. As the opinion, explains, the government tried unsuccessfully to have the email admitted under the excited utterance exception:

The government pinned their hopes on the immediacy with which Carey composed the E-mail message following his conversation with Ferber and the “my mind is mush!” comment at the end of the message, arguing that the entire message was an excited utterance and thus admissible pursuant to Fed.R.Evid. 803(2). In laying the foundation, the government inquired of Carey concerning the timing of the message (Carey: `I believe I wrote that E-mail shortly, very shortly, after the conversation [with Ferber]’), and Carey's emotional state as a result of that conversation (Carey:`“I was very upset, panicked, and very much wanted to get Mr. Moore's attention"'). . . .

After hearing argument by both sides, the Court ruled:

I am not going to admit it [as] an excited utterance. Because the detail, the length, the possibility [Carey] spoke to this Kevin before he wrote it, all of it signals to me that whatever he may say about his mind being mush, there's ample time for him to reflect, fabricate.

U.S. v. Ferber, supra.

I don’t think these are the only exceptions that could be used for tweets. Under Rule 803(3) of the Federal Rules of Evidence, “[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will” is not excluded by the default hearsay rule. According to the Advisory Committee, this is “essentially a specialized application” of the present sense impression exception. Advisory Committee Federal Rules of Rule 803(3). The Committee also noted that excluding statements of memory or belief is “necessary to avoid the virtual destruction of the hearsay rule, which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis” for inferring the event which “produced the state of mind.”

It seems to me Rule 803(3) may be a better fit for tweets than the other two rules. As a federal judge noted, “Rule 803(3) is particularly useful when trying to admit e-mail, a medium of communication that seems particularly prone to candid, perhaps too-candid, statements of the declarant's state of mind, feelings, emotions, and motives.” Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (U.S. District Court for the District of Maryland 2007). And at least one court relied on this exception in ruling that emails were admissible in a federal criminal prosecution. U.S. v. Safavian, 435 F. Supp.2d 36 (U.S. District Court for the District of Columbia 2006).

And I suspect that many of the evidentiary issues that arise with regard to instant messages – some of which I discussed in an earlier post – will also apply to tweets.

Vanishing Data (2)

This post is a follow-up to my last post. The purpose of this post to analyze the two grand jury scenarios I outlined in the earlier post.

We’ll take them in order. In the first scenario, I used Vanish software in sending emails and, as explained in my last post, FBI agents are trying to obtain the contents of those emails. They used a search warrant to get copies of the emails but enough time has passed that the dynamic encryption key generated for each email has self-destructed, which means no one can read them anymore.

In an effort to get the contents of the emails, the FBI agents have a grand jury subpoena me and the email recipients; the subpoena orders us to show up before the grand jury and describe the contents of the email messages. The question we’re addressing in this post is whether the subpoena recipients and/or I can take the 5^th Amendment privilege and refuse to disclose what we recall of the contents of those emails.

I therefore need to review the requirements for invoking the 5^th Amendment before we can consider whether it applies to this scenario and/or to the other scenario we’ll get to in a bit. As I explained in an earlier post, to claim the Fifth Amendment privilege the government must be (i) compelling you (ii) to give testimony that (iii) incriminates you. All three of these requirements have to be met or you cannot claim the privilege.

As I noted in the earlier post, “compelling” someone has a very distinct meaning when it comes to the application of the 5^th Amendment privilege against self-incrimination. It refers to what the law calls “judicial compulsion,” i.e., a court must order you to do something. As I’ve also noted, when a court orders you to do something – by, say, issuing a subpoena ordering you to testify – you have to comply or you will be held in civil contempt . . . which means you’ll be locked up until you decide to comply.

That’s where the compulsion comes in. The 5^th Amendment was meant to give us a fourth alternative to what the U.S. Supreme Court has called the “cruel trilemma:” tell the truth (and probably incriminate yourself in a crime); lie (which means you commit perjury because you’re under oath when you testify in court and before a grand jury); or refuse to answer and be locked up. The 5^th Amendment gives us another option: refuse to answer and NOT be locked up. It only works, though, if we can show that what we’re being ordered to do satisfies the other two requirements – testimony and incrimination.

“Testimony,” as I explained in an earlier post, is essentially communication. So I can take the 5^th Amendment privilege if a grand jury subpoenas me to show up and answer questions asked by a prosecutor and/or the grand jurors (if I can show that my testimony is incriminating, which we’ll get to). I can’t take the 5^th Amendment to bar law enforcement officers from taking my blood (when extracting the blood is authorized by a grand jury subpoena or other court order) because the Supreme Court has said blood is “physical evidence,” not testimony. The Court has construed the 5^th Amendment privilege as only applying to something that is identical or analogous to a witness’ testifying in court.

Finally, “incrimination” means that my testimony directly (“I murdered John Doe”) or indirectly (“I was at John Doe’s home the day he was murdered”) implicates me in the commission of a crime. To take the privilege, my testimony must incriminate ME; I can’t claim the privilege to get out of giving testimony that incriminates someone else.

Okay, back to our scenario. Let’s just focus on me (in this hypothetical in which I’m involved in criminal activity): The grand jury has subpoenaed me (compulsion) and wants me to describe the emails which we’ll assume incriminate me in (hypothetical) criminal activity. Two of the three requirements are clearly satisfied . . . but what about the third requirement – testimony?

I’ll argue that ordering me to describe the emails is testimony because if I do so I’ll be communicating, i.e., I’ll be using my mind to recollect the contents and describe them to the grand jury. That’s a good argument . . . but there MIGHT be a glitch.

The Supreme Court has held that I can’t take the 5^th Amendment and refuse to turn documents over to the grand jury, even though the contents of the documents constitute testimony (records that show I’ve been committing tax fraud, say) and that will incriminate me. The Court has said that the contents of the documents are, indeed, testimony, but I can’t take the 5^th Amendment because I wasn’t compelled to give that testimony. The Supreme Court has held that you can’t take the 5^th Amendment as to the contents of pre-existing records because while the contents are testimony, you voluntarily gave that testimony at the time you created the records. . . and by voluntarily testifying you waive the 5^th Amendment privilege.

So a prosecutor could argue that I can’t take the 5^th Amendment privilege and refuse to describe the contents of the emails because while the contents of the emails constitute testimony that incriminates me, I voluntarily “gave” that testimony when I wrote those emails. That’s true . . . but I’m not sure that argument works here. When I’m ordered to hand over documents I created a month or a year ago, all I’m being asked to do is to give the government testimony I “gave” a month or a year ago; once I hand over the documents, the government can read them and “access” my testimony.

Here, while I “gave” the testimony in the emails when I sent them, that testimony is not accessible to the government. The only way the government can access that testimony is to make me repeat it . . . which means I’ll be testifying as to the content in the emails. It looks to me like I should be able to take the 5^th Amendment privilege in this situation.

The government might argue that I can’t take the 5^th Amendment because I already “gave” the testimony to the person(s) who received each email. I’m not sure that makes any difference in terms of my ability to invoke the 5^th Amendment privilege. The only way the government can “access” the contents of one of my emails is if (i) I am compelled to testify as to the (incriminating) contents of that email or (ii) the recipient of one of my emails is compelled to testify as to the contents of the email. I’d argue that I can’t be compelled to testify as to the contents of the emails, but the government can still “access” the contents by getting the recipients of the emails to describe what they said.

The way the government could do that is by subpoenaing these people to testify before the grand jury. They’d probably try to take the 5^th Amendment privilege, too, but they might have some difficulty doing so. For one thing, they’re not being compelled to recite testimony they gave; they’re being compelled to recite testimony I gave and, as I noted earlier, you can only take the 5^th Amendment when you are being compelled to give testimony that incriminates you. Even if the recipients can show that the contents of the emails incriminates them, they can’t show that the contents are “their” testimony, unless a court finds it’s “their” testimony because they’re being compelled to testify as to their belief as to what the contents are. In other words, the prosecutor would say they’re essentially acting as tape recorders – just repeating what they read. The email recipients, in turn, would argue that they’re not acting as tape recorders – that they are, instead, being compelled to give their own testimony as to the contents of the emails.

If a court finds that the recipients aren’t being compelled to testify against themselves, they’ll have to describe the contents or the emails or be held in contempt and locked up until they do. If a court buys the argument that the recipients are being compelled to testify against themselves, then they can take the 5^th Amendment and refuse to testify. If the government really wants them to describe what’s in the emails, it can them give them immunity from prosecution, which deprives them of their ability to take the 5^th Amendment privilege and refuse to do so. The government could do this with all or a few of the recipients, depending on whether I’m its primary target or whether it wants to prosecute as many of my (hypothetical) colleagues in crime as possible.

And that brings us to the second scenario, in which the FBI agents get the grand jury to issue a subpoena that requires me or a recipient of one of my emails to open it and read it in the presence of one or more agents. In this scenario, we can still read the email because the dynamic encryption key Vanish generated for it hasn’t self-destructed. The question now is whether I (or a recipient -- the analysis will be pretty much the same here) can take the 5^th Amendment and refuse to access emails in the presence of FBI agents (who will read and/or photograph/print them).

The analysis here is the same as the analysis I outlined in my original post on the Boucher case: As I explained there, the Supreme Court has held that I can take the 5^th Amendment and refuse to turn over physical evidence (like an encryption key) if doing so constitutes “testimony.” To constitute testimony, my act of producing the evidence has to “tell” the government something it doesn’t already know.

Here, the prosecution would say I can’t take the 5^th Amendment privilege because the government already knows about the emails . . . it has copies of them (which it can’t read). I, in turn, will say I can take the privilege because while the government knows they exist, it doesn’t know what they say . . . so by being compelled to open an email I am telling the government what it says . . . which is testimony that incriminates me.

I think I should be able to take the 5^th Amendment, for the same reasons I think Boucher should have been able to invoke the 5^th Amendment and turn over the encryption key for the Z drive on his laptop. Boucher, of course, originally won on that argument, but then lost, incorrectly IMHO. This is a similar but far more complex 5^th Amendment scenario. I think courts will inevitably have to address these and similar issues because, as I’ve noted before, the use of encryption and similar tools are currently the only way we can obtain constitutional protection for the contents of emails and other digital messages.

Vanishing Data (1)

You’ve probably see a news story about Vanish, the software developed by computer scientists at the University of Washington. The New York Times had an article on it several weeks ago; since then, articles have appeared in a variety of sources.

The premise behind Vanish is to protect the privacy of emails and other types of digital messages by having them self-destruct after a specified period of time. I won’t go into the details of the processes Vanish uses, other than noting two things: One is that it’s designed to deal with data stored online in a cloud; the other is that it exploits the cloud by using an encryption key that is held by none of the parties to a digital message but is, instead, scattered through a peer-to-peer file-sharing system.

Since none of those who were privy to the message when it was sent know the key, and since the key is scattered throughout a cloud, it becomes difficult, if not impossible, for a third party to discover the key or to recreate it. That difficulty is exacerbated by the fact that the life of Vanish-protected messages is brief; as I understand it, even the author of a Vanish-encrypted message won’t be able to read it 9 or more hours after the message was sent. (From what I’ve read, it is, or will be, possible to expand that time period.)

Some of the stories I read about Vanish noted that it’s likely to raise certain legal issues; the one the Times article cited is the possibility that the use of Vanish would violate laws that require corporations to retain emails and other message data. Under the Securities and Exchange Act of 1934, for example, companies engaged in securities trading must retain emails for a minimum of three years. See 17 Code of Federal Regulations §§ 249.0-17a-3 & 240.17a-4.

It looks to me like Vanish also raises other – far more difficult – legal issues. One goes to the privacy of emails. As I’ve noted in earlier posts, the 4^th Amendment protects the privacy of our homes, persons, papers and effects from “unreasonable” law enforcement intrusions. As I explained, under the 4^th Amendment officers must use a search warrant or an exception to the warrant requirement to “search” private property. A “search” violates a reasonable expectation of privacy under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967). To have a “reasonable” expectation of privacy in a place or thing, (i) I, subjectively, must believe the place or thing is private and (ii) society must agree with me, i.e., my subjective expectation must be objectively reasonable.

As I’ve explained in several posts, under the Supreme Court’s interpretation of the Katz standard, I probably don’t have a 4^th Amendment reasonable expectation of privacy in emails I leave stored with my ISP. The Department of Justice has argued that we don’t have a 4^th Amendment expectation of privacy in stored emails because by leaving them stored on the ISP’s server, we assume the risk that the ISP will (i) read the emails and/or (ii) turn them over to law enforcement (without law enforcement’s first obtaining a search warrant). As I explained, that argument is supported by a line of Supreme Court cases, cases I think were wrong when they were originally decided and have become, if such a thing is possible, even wrong-er as the years have passed and technology has advanced.

What, you ask, does that have to do with Vanish? It seems to me that if someone uses Vanish they’ve pretty much overcome the no-expectation-of-privacy-in-stored-emails argument because they’ve effectively insulated the contents of the emails beyond the reach of the ISP (or could computing service) with which they’re stored. In other words, I think using Vanish would defeat the assumption of risk argument, i.e., the by-storing-emails-you-effectively-share-their-content-with-the-entity-storing-them argument. If the ISP or cloud computing service can’t read the emails, I don’t see how you can be said to have assumed the risk of a loss of privacy; it seems to me that, as I argued in an earlier post, you’ve transformed the emails into the equivalent of a letter in the custody of the U.S. Postal Service.

That, I think, is the easy part. If we assume I’m right about all that, we then have to consider what the consequences are of this expectation of privacy in the contents of online communications. If using Vanish creates a 4^th Amendment expectation of privacy in the contents of messages stored online, then the only way law enforcement can gain access to the contents of messages is to use a search warrant (or maybe an exception to the warrant requirement, but we’ll get to that later).

Let’s assume I use Vanish for the emails I send as part of my (hypothetical) criminal activities. Let’s also assume that FBI agents have developed probable cause to believe I am (hypothetically) engaged in these criminal activities and to believe that the contents of my emails are evidence of my (hypothetical) criminality. We’ll further assume that the FBI agents know I store my emails on the Nebulous Cloud Computing Service, which is conveniently located in the United States. And we’ll assume that the FBI agents use their probable cause (plus their knowledge of other relevant facts) to get a warrant that authorizes them to seize (copy, presumably) and then search the contents of the emails I have stored with NCCS.

Now what? The FBI agents contact NCCS, tell NCCS about the warrant and ask for copies of my emails (the ones that fall within whatever parameters are spelled out in the search warrant, such as the names of particular recipients, etc.). We’ll assume, for the purposes of analysis, that NCCS is able to locate and copy the emails. (As I understand it, Vanish doesn’t erase the messages themselves; instead, it makes them permanently unreadable after the basic window of time – the 9 or so hours – has passed.)

Now what? We’ll assume enough time has passed that the dynamic encryption key that was generated for the emails has self-destructed . . . which means no one can reach the contents of those emails. If that is true, then by using Vanish I’ve put the contents of the emails, as such, completely beyond the reach of law enforcement. The only way the FBI agents can “access” the contents of the emails is to get me and/or the recipient(s) of an email to describe its contents. They could do this by having a grand jury subpoena me and the email recipients; the subpoena would order us to show up before the grand jury and describe the contents of the email messages. As I explained in an earlier post, we could refuse to comply with the subpoena to the extent we could legitimately invoke the 5^5th Amendment privilege against self-incrimination. (I’ll do a follow up post on that, as it could be tricky.)

If I’m correct about all this, I can see two ways in which law enforcement officers – the FBI agents in this hypothetical – might have a shot at being able to access the contents of the emails. One is to use the exigent circumstances exception to the 4^th Amendment warrant requirement.

As I noted in an earlier post, the exigent circumstances exception lets officers seize and search property without a warrant as long as (i) they have probable cause to believe evidence of a crime exists at the place where they’ll conduct the searching and seizing and (ii) the existence of some exigency – such as the imminent destruction of evidence – justifies not taking the time to get a search warrant. Here, the FBI agents could argue that the encryption key’s imminent self-destruction justifies their proceeding without a warrant . . . but that argument would only work as to emails for which the key hasn’t already self-destructed. So if the agents relied on this exception, they’d not only have to be monitoring my emails so they’d know how long they had before a key self-destructed (which might give them time to get a warrant) . . . they’d essentially be in a situation in which they’d have to proceed email by email, exigency by exigency.

Unless, of course, courts decided that the use of Vanish automatically gives rise to a continuing exigency, so that the FBI agents could simply contact NCCS and put in an order to copy every email I send as soon as it’s been sent and is stored on the NCCS system. (As I’ve noted in an earlier post, another set of laws protects emails while it’s actually being transmitted.) Or maybe courts would accept “Vanish warrants” – search warrants that issued when agents could show (i) probable cause that my future emails would contain evidence of a crime and (ii) that I use Vanish, so the window of time in which each of those emails is accessible creates a kind of canned exigency.

Even if they’re able to do all this, the FBI agents still have to be able to read the emails, which might be a factor that further supports the invocation of the exigent circumstances exception. As I understand it, when I use Vanish I will be able to read a message during the window in which the encryption key is still intact, and so will the intended recipient(s) of the message. If the FBI agents use the exigent circumstances exception, under any of the scenarios outlined above, they presumably will capture a copy of the email before the key self-destructs . . . which means the sender and recipient(s) can still read it.

That takes us back to a version of the grand jury scenario I outlined above. Now, instead of subpoenaing me and the recipients to describe the contents of the email, the grand jury could subpoena us and order us to access the email in the presence of FBI agents, who would then read (maybe photograph or print) the contents of the email. And that, again, takes us back to the 5^th Amendment issue . . . which I’ll take up in a follow-up post.