SMART, Technology, and the Evidence You Left Behind

[Seattle1]

Happy New Year 2021

The purpose of starting this thread is to serve as a place to post new or updated state and federal laws not widely known and/or understood. Also, a place to share information such as sealing and unsealing search warrants, why there's no camera in the courtroom for the case you're following, and other topics like surprising advancements in technology that you need to know!

Cheers!

 

[Seattle1]

Insecure wheels: Police turn to car data to destroy suspects' alibis

Dec 28, 2020

Digital frontiers

In recent years, investigators have realized that automobiles — particularly newer models — can be treasure troves of digital evidence. Their onboard computers generate and store data that can be used to reconstruct where a vehicle has been and what its passengers were doing. They reveal everything from location, speed and acceleration to when doors were opened and closed, whether texts and calls were made while the cellphone was plugged into the infotainment system, as well as voice commands and web histories.

But that boon for forensic investigators creates fear for privacy activists, who warn that the lack of information security baked into vehicles' computers poses a risk to consumers and who call for safeguards to be put in place.
___________

Please check out the link above for shocking information about the evidence you are leaving behind (and probably never considered).

And a shout out to @MassGuy for sharing this relevant, valuable link to start off this thread!

 

[Seattle1]

Third-Party Doctrine stems from the notion that an individual has reduced expectation of privacy in information knowingly shared with another.

Prior to the 2018 decision below (where the Government will generally need a warrant to access cell-site location information (CSLI)), the Government acquired cell site location information pursuant to a court order under the Stored Communications Act-- maintaining that cell-site records were "business records." However, unlike a search warrant, the Stored Communications Act only requires the Government to show "reasonable grounds" for believing that the records are "relevant and material to an ongoing investigation."

In their decision, the court clearly demonstrated that your monthly cell phone billing statement (i.e, business records) is NOT comparable to a dump of your cell site location information! Below is only a syllabus of the decision and the complete opinion is available at the link below. While it's a lengthy 100+ page opinion, it's also a very interesting read.

Important Decision from the Supreme Court of the United States -
June 22, 2018

No. 16–402
TIMOTHY IVORY CARPENTER, PETITIONER v.
UNITED STATES

Syllabus

CARPENTER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

No. 16–402. Argued November 29, 2017—Decided June 22, 2018

Cell phones perform their wide and growing variety of functions by continuously connecting to a set of radio antennas called “cell sites.”
Each time a phone connects to a cell site, it generates a time-stamped
record known as cell-site location information (CSLI). Wireless carriers
collect and store this information for their own business purposes.
Here, after the FBI identified the cell phone numbers of several robbery
suspects, prosecutors were granted court orders to obtain the
suspects’ cell phone records under the Stored Communications Act.
Wireless carriers produced CSLI for petitioner Timothy Carpenter’s
phone, and the Government was able to obtain 12,898 location points
cataloging Carpenter’s movements over 127 days—an average of 101
data points per day. Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment.
The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.

Held:
1. The Government’s acquisition of Carpenter’s cell-site records
was a Fourth Amendment search. Pp. 4–18.

(a) The Fourth Amendment protects not only property interests
but certain expectations of privacy as well. Katz v. United States, 389
U. S. 347, 351. Thus, when an individual “seeks to preserve something
as private,” and his expectation of privacy is “one that society is
prepared to recognize as reasonable,” official intrusion into that
sphere generally qualifies as a search and requires a warrant supported
by probable cause. Smith v. Maryland, 442 U. S. 735, 740 (internal
quotation marks and alterations omitted). The analysis regarding
which expectations of privacy are entitled to protection is
informed by historical understandings “of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was
adopted.” Carroll v. United States, 267 U. S. 132, 149. These Founding-
era understandings continue to inform this Court when applying
the Fourth Amendment to innovations in surveillance tools. See, e.g.,
Kyllo v. United States, 533 U. S. 27. Pp. 4–7.

(b) The digital data at issue—personal location information
maintained by a third party—does not fit neatly under existing precedents
but lies at the intersection of two lines of cases. One set addresses
a person’s expectation of privacy in his physical location and
movements. See, e.g., United States v. Jones, 565 U. S. 400 (five Justices
concluding that privacy concerns would be raised by GPS tracking).
The other addresses a person’s expectation of privacy in information
voluntarily turned over to third parties. See United States v.
Miller, 425 U. S. 435 (no expectation of privacy in financial records
held by a bank), and Smith, 442 U. S. 735 (no expectation of privacy
in records of dialed telephone numbers conveyed to telephone company).
Pp. 7–10.

(c) Tracking a person’s past movements through CSLI partakes
of many of the qualities of GPS monitoring considered in Jones—it is
detailed, encyclopedic, and effortlessly compiled. At the same time,
however, the fact that the individual continuously reveals his location
to his wireless carrier implicates the third-party principle of
Smith and Miller. Given the unique nature of cell-site records, this
Court declines to extend Smith and Miller to cover them. Pp. 10–18.

(1) A majority of the Court has already recognized that individuals
have a reasonable expectation of privacy in the whole of their
physical movements. Allowing government access to cell-site records—
which “hold for many Americans the ‘privacies of life,’ ” Riley v.
California, 573 U. S. ___, ___—contravenes that expectation. In fact,
historical cell-site records present even greater privacy concerns than
the GPS monitoring considered in Jones: They give the Government
near perfect surveillance and allow it to travel back in time to retrace
a person’s whereabouts, subject only to the five-year retention policies
of most wireless carriers. The Government contends that CSLI
data is less precise than GPS information, but it thought the data accurate
enough here to highlight it during closing argument in Carpenter’s
trial. At any rate, the rule the Court adopts “must take account
of more sophisticated systems that are already in use or in
development,” Kyllo, 533 U. S., at 36, and the accuracy of CSLI is
rapidly approaching GPS-level precision. Pp. 12–15.

(2) The Government contends that the third-party doctrine
governs this case, because cell-site records, like the records in Smith
and Miller, are “business records,” created and maintained by wireless
carriers. But there is a world of difference between the limited
types of personal information addressed in Smith and Miller and the
exhaustive chronicle of location information casually collected by
wireless carriers.

The third-party doctrine partly stems from the notion that an individual
has a reduced expectation of privacy in information knowingly
shared with another. Smith and Miller, however, did not rely solely
on the act of sharing. They also considered “the nature of the particular
documents sought” and limitations on any “legitimate ‘expectation
of privacy’ concerning their contents.” Miller, 425 U. S., at 442.
In mechanically applying the third-party doctrine to this case the
Government fails to appreciate the lack of comparable limitations on
the revealing nature of CSLI. Nor does the second rationale for the third-party doctrine— voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as the term is normally understood.

First, cell phones and the services they provide are “such a
pervasive and insistent part of daily life” that carrying one is indispensable
to participation in modern society. Riley, 573 U. S., at ___.
Second, a cell phone logs a cell-site record by dint of its operation,
without any affirmative act on the user’s part beyond powering up.
Pp. 15–17.

(d) This decision is narrow. It does not express a view on matters
not before the Court; does not disturb the application of Smith and
Miller or call into question conventional surveillance techniques and
tools, such as security cameras; does not address other business records
that might incidentally reveal location information; and does not
consider other collection techniques involving foreign affairs or national
security. Pp. 17–18.

2. The Government did not obtain a warrant supported by probable
cause before acquiring Carpenter’s cell-site records. It acquired
those records pursuant to a court order under the Stored Communications
Act, which required the Government to show “reasonable
grounds” for believing that the records were “relevant and material to
an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls
well short of the probable cause required for a warrant. Consequently,
an order issued under §2703(d) is not a permissible mechanism for
accessing historical cell-site records. Not all orders compelling the
production of documents will require a showing of probable cause. A
warrant is required only in the rare case where the suspect has a legitimate
privacy interest in records held by a third party. And even
though the Government will generally need a warrant to access
CSLI, case-specific exceptions—e.g., exigent circumstances—may
support a warrantless search. Pp. 18–22.
819 F. 3d 880, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., filed a
dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J.,
filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which
THOMAS, J., joined. GORSUCH, J., filed a dissenting opinion.


https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

 

[Seattle1]

Text to 9-1-1 is now available for San Diego County residents | cbs8.com

Jan 5, 2020

SAN DIEGO COUNTY, Calif. — San Diego County residents can now text to 9-1-1 in an emergency if you can't call. This includes the Sheriff's Department and all police and fire/Emergency Medical Services (EMS) agencies.

Authorities still advise calling, which is still considered the fastest way to reach 9-1-1.

How does Text to 9-1-1 work?

• Enter the numbers 911 in the "To" field
• Give the location and nature of your emergency
• Send the text message
• Respond to dispatcher questions and follow instructions

Situations when texting may be the better option:

• You're deaf, hard of hearing, non-verbal or have difficulty speaking
• You're in a situation where it's not safe to call 9-1-1 for help
• You're having a medical emergency and cannot speak on the phone

Data and message rates may apply. Authorities said, do not use emojis, abbreviations and acronyms. Photos and videos cannot be sent to 9-1-1. Currently, the service is only available in English. Messages sent to 9-1-1 cannot include other people.

Similar to 9-1-1 calls, Text to 9-1-1 is for emergencies only. Intentional misuse of the system is a crime and is a punishable offense, authorities said. If you accidentally sent a message, send a reply clarifying there is no emergency. Cell phone reception varies by location. If Text to 9-1-1 is not available, you will receive a bounce-back message asking you to call 9-1-1.

Remember: Call if you can, Text ONLY if you can't.
______________________

An instructional video with more info from the Sheriff's office is available at the link above.

 

[Seattle1]

Jan 12, 2021

I just read today that North Dakota Lawmakers in the House introduced a bill that would exempt North Dakota from Daylight Saving Time. This means you would no longer need to spring forward or fall back the clock.

HOWEVER, many are not aware that federal law does not allow year-round daylight savings time.

According to the National Institute of Standards and Technology, Daylight Saving Time started in 1918. It is only recognized in the United States. The most recent updates were done in 2007. House Bill 1321 would exempt North Dakota from the program and keep the clocks the same year-round. Arizona and Hawaii are two states that are already exempt.

The federal law hold-up best explains why at least 13 states (including Washington State) have already enacted and/or passed legislation for year-round DST but they are still in limbo waiting for Congress to approve their choice clock!

You can read more about the federal law (i.e., the clock hold-up) at the link below.

Daylight Saving Time | State Legislation

House Bill would cancel Daylight Saving Time in ND

 

[Seattle1]

More on the history and evolution of the Electronic Communications Privacy Act 1986 (ECPA)

https://www.judiciary.senate.gov/imo/media/doc/10-09-22DempseyTestimony.pdf

Full text of "THE ELECTRONIC COMMUNICATIONS PRIVACY ACT: PROMOTING SECURITY AND PROTECTING PRIVACY IN THE DIGITAL AGE"

 

[Seattle1]

US military spies paid for Americans' cell phone data without warrant | Daily Mail Online

Jan 22, 2021

‘Permission to query the US device location data has been granted five times in the past two and a half years for authorized purposes,’ according to the DIA memo.

Data brokers are private companies that collect and sell people’s information, including their locations.

These firms pay smartphone app makers and web sites for the information. They can then aggregate it and sell it to whoever is willing to pay for it, including the government.

The memo states that DIA ‘personnel can only query the US location database when authorized through a specific process’ which requires approval from agency leaders as well as the Office of Oversight and Compliance and the Office of General Counsel.

The agency memo says DIA is not bound by a 2018 decision by the Supreme Court in Carpenter v. United States requiring the government to obtain a warrant before forcing phone companies to hand over location data about their customers.

[..]

Wyden gave a speech on the Senate floor earlier this week in which he vowed to put forward a bill that would close all legal loopholes allowing government agencies access to Americans’ location data.

The senator from Oregon said it was improper for there to be an instance ‘in which the government, instead of getting an order [from a court], just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.’

‘The Fourth Amendment is not for sale,’ Wyden said.

 

[Laughing]

The battery on my FitBit ran out. (Understand, the advertised 6 month battery life is in reality 3 months & 10 days. Yup. Every time.)

I was about to install a fresh battery when FitBit announced it was now part of Google.

Good timing, not everyone wants Google to know their precise location 24/7/365.

FitBit sitting blank on the desk.

Re: Arizona. Anyone who has lived in Arizona knows that daylight is one thing that doesn't need to be saved there!

I did live there, after the regulation changed. Friends talked about leaving restaurants & bars after 9 PM and needing sunglasses to drive home!


Our republic was designed as a loose federation with mainly local decisions and State's Rights.

jmho ymmv lrr and all that

 

[Seattle1]

Colorado and media for criminal trials:

Refresher citing that media coverage of court proceedings in Colorado is governed by Rule 3 of the Public Access to Information and Records Rules promulgated by the Colorado Supreme Court. Rule 3(a)3(A) states there shall be no consideration given for expanded media coverage in criminal cases except for advisements or arraignments.

“C) "Expanded media coverage" means any photography or audio recording of proceedings.” Rule 3 - Media Coverage of Court Proceedings, Colo. Pub. Acc. Info. & Rec. 3


https://www.courts.state.co.us/user...auch/O12 Order re Expanded Media Coverage.pdf

 

[Seattle1]

I think everything here bears repeating:

We reached out to legal expert and defense attorney, Jeremy Loew, for answers about what Letecia Stauch will face in the coming weeks.

What will Letecia Stauch be up against in trying to represent herself?

Loew: It's a very daunting task, to imagine that she's going to successfully defend this case. She believes that she has two smoking guns that are going to clear her from this homicide. Obviously, if those smoking guns existed, she likely would have given those to her attorneys. Apparently, either she hasn't given them to her attorneys, or they don't exist, the smoking guns. Obviously, this is going to be a very long process, we're essentially starting from ground zero, she'll have to start making her way through the 30,000 pages of police reports, I don't think she can grasp how much that's going to be while she's sitting in a jail cell. It's going to be page after page after page, and she's literally only going to get notepad and a black ink marker. It's not like she has an opportunity to go through and highlight different things and record notes on computers. This is just a huge undertaking, that without an attorney is a shocking, shocking decision.


Will she have any help navigating legal procedure? If she does have two pieces of evidence that will clear her name, will she have help admitting that evidence?

Loew: The judge in the court will provide her what's called Advisory Counsel. Advisory counsel won't provide necessarily anything on how to defend the case, but it will provide how to do the procedural issues, how to admit evidence. So, if she has questions on how to admit evidence, or what a potential objection is, she can look to her Advisory Counsel for guidance.

It will be a huge resource, but what she'll learn quickly is that her Advisory Counsel isn't just an attorney, that she can tell what to do because the advisory counsel's job is to provide guidance, but not just to be the gofer or the workhorse for this pro se litigant. The other thing to keep in mind is, not only does she have to make it through the 30,000 pages of discovery, but she also then has to go back through and be able to ascertain what questions she wants to be able to ask of any witnesses through that 30,000 pages. You know, there's tons of software out there right now for attorneys that help organize and locate witnesses throughout discovery, she's not going to have access to that. This is just something that I can't fathom somebody would take on with this much discovery in a case.


Will she be allowed to directly question the victim's family and close friends on the stand?

Loew: Absolutely. So, she is going to be acting as an attorney. So, every witness that the prosecution puts up on the stand, she will have an absolute right to cross-examine. She'll also have an absolute right to present her own defense, which means she could potentially testify she chose. She could also present other witnesses, she'll have access to an investigator who can subpoena and interview witnesses. So she has the same resources as an attorney who would be handling the case, and the same ability to do opening statements, jury selection, cross-examination, direct examination, everything that a normal attorney would.

A jury will typically only see small interactions with a defendant, they won't always even take the stand. In this case, the jury will see more of Stauch than in most murder trials as she will likely be making opening statements and questions witnesses. How do you think this will impact the trial?

Loew: That can cut two different ways. If a jury starts feeling bad for somebody, because they look so out of place, and so overwhelmed, that could garner some jury sympathy. But, on the flip side of that, if they because they come across too confident, the judge starts getting frustrated with them, and the judge wears that frustration on his robe, then, the jury is also going to get frustrated and potentially could become somewhat vindictive towards the defendant. The other thing to keep in mind is 30,000 pages of discovery is so much that when she starts a trial, when she starts a hearing, she's going to have boxes and boxes of just paper, and she's going to have to try and make it through all of those 1000s and 1000s of pieces of paper, that are likely going to be completely disorganized. This isn't a case on the prosecution side, where the prosecution isn't taking this seriously. We have the elected District Attorney Michael Allen on the case, we have the Chief Deputy District Attorney, Martha McKinney on the case. And we have another attorney, who is also very experienced Miss Graziani. So, these are three very experienced district attorneys who are going to come out full blast, and she probably isn't going to know what just hit her.

So, even for a trained and experienced defense attorney, this would be a challenging case?

Loew: This is a very challenging case, but there are things that defense attorneys can potentially do to make your case less challenging, by impeaching witnesses by doing proper cross-examination by asking questions that get to the answers that you're looking for, and start poking holes in a case. But, without that training, without that experience, it's almost like she doesn't have a fighting shot.

On Friday, Stauch asked about waiving her Proof Evident, Presumption Great Hearing, what does that tell you?

Loew: The fact that she tried to or that she waved her Proof Evident, Presumption Great Hearing, is just a red flag that she has no clue what she's doing.

A Proof Evident, Presumption Great hearing is [where] the district attorney's office has to put on witnesses to show that the proof is evident, and the presumption is great that the defendant would be convicted.

Now, in Colorado, there are no criminal depositions.
So what this is, is a hearing that allows the defendant to cross-examine, and get impeachment information to be used later at trial. So, there's pretty much there is no benefit to waiving the Proof Evident, Presumption Great Hearing.

Potentially, she could have been entitled to bond. So, if she waived the Proof Evident, Presumption Great Hearing, it is even a bigger red flag that she is completely lost.

From a legal standpoint, why would someone try to do this? Could this be a delay tactic? Does this give her more opportunities to appeal a conviction down the road?

Loew: It's hard to imagine why she is doing this. I would say that the main reason she's doing this is that she's so confident in her own abilities and herself, and that she wants that she thinks she can do this. It's not necessarily going to cause a delay tactic. There's no benefit to a delay tactic. She's sitting in jail, she's sitting in jail indefinitely, and if she loses this trial, she'll be transferred from jail to prison for the rest of her life. There's no benefit to a delay tactic. The Court of Appeals has made it very clear and the Supreme Court has made it very clear, you have an absolute right to defend yourself. If you defend yourself, you are waiving any ineffective assistance of counsel claims. So, her appellate issues are actually being lessened by her choice to defend herself. So, the only thing I can think of is that she's so confident in her own abilities, that she thinks that she can do a better job than an attorney.

We know she can't appeal based on the fact that she represented herself, but we've talked about how the law libraries at jails are often outdated and insufficient. Would she be able to appeal based on the fact that adequate resources weren't available to her?

Loew: I believe that would be grounds for an appeal. Though, they will state that she had ample resources and she was advised that those are the resources she had available to her. The fact that she has to process to 30,000 pages of discovery is going to be a really big issue.

On Friday, she mentioned that she didn't feel like she was getting enough access to evidence from jail. She pointed out that if she represented herself, she would have to get access to all of the evidence in this case. Do you think having all of the evidence at her disposal will help her case?

Loew: I'm glad you brought that up. In Colorado, an in-custody defendant does not have the right to have all of his or her discovery at their disposal. They have the right to know all of their discovery and to have all their discovery read to them, but they do not have an absolute right to have their discovery with them while they are in the jail. And, the reason for that is to actually help the in-custody defendant because so many times there are jailhouse snitches, and those jailhouse snitches can get access to that discovery, call the District Attorney's office and say, 'Hey, defendant A just confessed to this homicide. This is all that they told me about the case,' and garner a better deal for themselves. That defendant may not have actually had a conversation with the jailhouse snitch, but the jailhouse snitch was able to get the information from the police reports. So, there's a real benefit to not having your discovery while you're incarcerated. You don't have privacy, you're in a jail.

If you have any additional questions about Stauch's case that you would like answered, please reach out to KRDO Reporter Sydnee Stelle by sending an email to [email protected].

Letecia Stauch will defend herself at murder trial, now what? - KRDO

 

[Seattle1]

More about "evidence you are leaving behind."

Spy firm can monitor YOUR car in real-time and sell data to other companies and the US military | Daily Mail Online

Mar 17, 2021

A South Carolina-based surveillance firm that has sold services to the U.S. military is promoting its ability to provide real-time location information about 15 billion cars every month.

The company, called The Ulysses Group, says it can monitor vehicles in every country in the world, except North Korea and Cuba.

The claims come from a document obtained by the office of U.S. Sen. Ron Wyden (D-Oregon) in which the company has detailed its capabilities. Wyden is investigating companies that sell the data of consumers.

[..]

The company says it can track cars through sensors in vehicle parts - either installed by the car company, or by the Original Equipment Manufacturers (OEMs) - the company that provided the components.

The sensors collect information such as airbag and seatbelt status, engine temperature, and location, and then transmit that information either back to the car maker or to third parties.

Aggregator companies also purchase or obtain this data, repackage it, and then sell that data or products based on it to their own clients, Vice News reported on Wednesday.

 

[Curious_in_NC]

@Seattle1, Thanks for sharing this info. I was troubleshooting a satellite radio antenna problem on my relatively new vehicle about two years ago. More than 95% of the info I found on the internet instead was actually about how to disable the system "to stop your car from spying on you". I'm still worried about the spying, but at least the radio works again.