Upcoming Supreme Court Argument--Stored Communications Act

Attorneys interested in electronic communications privacy issues should take note of a case currently under consideration by the Supreme Court that implicates the Stored Communications Act (SCA).
The court will hear oral argument this term in Carpenter v. United States. Carpenter concerns whether Fourth Amendment protections apply to cell phone “transactional records,” which reveal the location and movements of a cell phone. The case is important because it will reconcile a conflict between the long-standing “third party” doctrine and recent cases recognizing privacy interests in electronic data.

In Carpenter, federal law enforcement obtained the transactional records of defendant Carpenter’s cell phones. Federal agents used the data to determine that Carpenter’s cell phones connected with towers near robberies they were investigating.
Law enforcement obtained those records through a court order under Section 2703 of the SCA. That provision allows the government to compel disclosure of communication “transactional records” based on “reasonable grounds to believe” that the information is relevant to an investigation. This standard is less stringent than the Fourth Amendment’s requirement of a warrant supported by “probable cause.”
In the trial court, the defendant moved to suppress the service records, arguing that the more stringent Fourth Amendment standard should apply to the records. That motion was denied, and Carpenter was convicted.
On appeal, the Sixth Circuit also rejected the defendant’s Fourth Amendment argument, finding that the defendant had no reasonable expectation of privacy in his cell phone records under the “third party” doctrine.

Dane County Criminal Prosecutions

After successfully trying a too drunk to consent case in January and teaching Evidence this summer at the law school, I'm back. In short, things have completely gotten out of hand in Dane County. While this dysfunction has been apparent to the defense bar for the last two years ( it begin to rear its ugly head after the departures of Deputy District Attorneys Viste and Fallon ---both of whom went to work for the State Department of Justice ), it has finally hit the public media.

Isthmus has honed in on part of the story.  For the recent articles, here is the link https://isthmus.com/news/news/ozanne-judge-hanrahan-case-da-office-unprepared/.   If you are a resident of Dane County, shake your head. 

Wonder why we keep getting errors based on bogus forensic evidence

In this past month the Executive Office of the President President’s Council of Advisors on Science and Technology (PCAST) issued a report to President Obama entitled "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." That report had a series of recommendations and findings.

 According to Recommendation 1:

It is important that scientific evaluations of the foundational validity be conducted, on an ongoing basis, to assess the foundational validity of current and newly developed forensic feature-comparison technologies. To ensure the scientific judgments are unbiased and independent, such evaluations must be conducted by a science agency which has no stake in the outcome.

(A) The National Institute of Standards and Technology (NIST) should perform such evaluations and should issue an annual public report evaluating the foundational validity of key forensic feature-comparison methods.

 Finding 4 was that

PCAST finds that bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards. To the contrary, available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bitemark and cannot identify the source of bitemark with reasonable accuracy.

And Finding 5 was that

PCAST finds there are no appropriate empirical studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks (sometimes called “randomly acquired characteristics). Such conclusions are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.

PCAST has not evaluated the foundational validity of footwear analysis to identify class characteristics (for example, shoe size or make).

So, what was the response by the Attorney General, the FBI, and the National District Attorneys Association (NDAA) to this report?

The answer can be found in an article by Kira Lerner for ThinkProgress. First,

Attorney General Loretta Lynch released a statement indicating she would ignore the recommendations.

“We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning,” Lynch said in a statement. “While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”

Second, "[t]he FBI also said it disagrees with many of the findings of the report, which the agency said 'makes broad, unsupported assertions.'" 

Third,

the National District Attorneys Association (NDAA) released a statement saying its attorneys would continue using the forensic methods critiqued in the report because "adopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar, to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial."

The attitude of law enforcement in response to this report is in a word, unbelievable.  God forbid if science got in the way of getting a conviction.

Surprise, Bitcoin is not money

A Miami judge has found that bitcoin isn’t the same as money and tossed criminal charges against a man accused of selling $1,500 worth of the virtual currency to undercover agents.
Judge Teresa Mary Pooler ruled on Monday that bitcoin isn’t money, the Miami Herald reports.
As a result, Pooler said, defendant Michell Abner Espinoza wasn’t operating an unlicensed money-services business. “The court is not an expert in economics, however, it is very clear, even to someone with limited knowledge in the area, the bitcoin has a long way to go before it the equivalent of money,” Pooler wrote.
Pooler also ruled there was insufficient evidence that Espinoza committed the crime of money laundering. He was accused of selling bitcoin to federal agents who said they were going to use the currency to buy stolen credit-card numbers.
The state statute requires those charged to intend to promote illegal activity, but the word promote “is troublingly vague,” Pooler wrote. “There is unquestionably no evidence that the defendant did anything wrong, other than sell his bitcoin to an investigator who wanted to make a case,” Pooler wrote.
The case is believed to be the first money-laundering prosecution involving bitcoin and was “closely watched in tech, financial and legal circles,” according to the Miami Herald.

House of Representatives Votes to Provide Increased Privacy Protection to Emails

Last week, the U.S. House of Representatives unanimously passed the Email Privacy Act (H.R. 699), which would require the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox.

The bill provides a long overdue update to the Electronic Communications Privacy Act (ECPA), first passed in 1986. The bill also codifies the ruling in U.S. v. Warshak, where the Sixth Circuit Court of Appeals  ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers.

Contact your Senators to pass this bill!

SEVENTH CIRCUIT REVERSES WD WISCONSIN ON TWO SEPARATE CASES

Rare enough to happen once a year, this past week saw the Seventh Circuit Court of Appeals reverse the WD of Wisconsin on two separate cases. One involved a reversal of a denial of a Rule 29 motion in a wire fraud case and the other dealt with an illegal search of an apartment building facilitated by the use of drug dogs. The first case was handled by yours truly in which a three-judge panel of the 7^th Circuit Court of Appeals in Chicago overturned the conviction of Madison banker Dave Weimert last week Friday, saying no crime was committed and ordered his immediate release from a federal prison facility.

 

“We rarely reverse a conviction for mail or wire fraud due to insufficient evidence,’’ the judges said in a 2-1 opinion released late Friday.  In this case, however, “there is no evidence that Weimert misled anyone about the material facts or about promises of future action.’’

Weimert was convicted by a jury last year on charges of federal wire fraud for using email and other communications as part of his successful 2009 sale of property in Texas on behalf of Anchor Bank for a price that was $2 million more than Anchor’s target price.  

The three-judge majority decision acknowledged that Weimert showed a “lack of candor’’ during the sale negotiations.  But if “omissions of a buyer’s or seller’s negotiating position’’ is a federal crime, it warned, many negotiations could be considered federal crimes -- an enormous expansion federal prosecutors’ power.

“Federal mail and wire fraud statues encompass a broad range of behavior. Their limits can be difficult to draw with certainty,’’ the majority opinion concluded. “But there are limits.’’

In reality, Dave’s successful negotiation generated badly needed cash for Anchor and removed a huge liability from its books -- and he did it right in the teeth of the nation’s real estate market collapse. As all terms were fully disclosed to Anchor and the buyers, including Dave’s role, it took me a long time just to figure out what Dave was even being charged with.  A full copy of the opinion can be found at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-08/C:15-2453:J:Flaum:dis:T:fnOp:N:1734645:S:0 

The second case reversed a district court denial of a motion to suppress.  Taking "Hunter" a drug dog into the second floor of an apartment building was a search violating the holding of Florida v. Jardines, 133 S. Ct. 1409 (2013).  A full text of the opinion in U.S. v. Whitaker can be found at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-12/C:14-3290:J:Darrah:aut:T:fnOp:N:1736023:S:0

Wisconsin Legislation Takes Steps to Combat Crime..they are hard at it again

USING A DRONE TO COMMIT A CRIME
ASSEMBLY BILL 671 (JANUARY 11, 2016)
HTTPS://DOCS.LEGIS.WISCONSIN.GOV/2015/PROPOSALS/REG/ASM/BILL/AB671
SENATE BILL 497 (JANAURY 5, 2016) HTTPS://DOCS.LEGIS.WISCONSIN.GOV/2015/PROPOSALS/SB497
This bill creates a penalty enhancer for a crime if the offender uses a drone to commit the crime. Under the bill, if a person uses a drone to commit a violation of the criminal code or commits a criminal offense related to a controlled substance, the person is subject to an increased penalty for the underlying crime. Under the bill, if the underlying offense is a misdemeanor but not a Class A misdemeanor, the person is subject to a maximum fine of $10,000, and a maximum term of imprisonment of one year in the county jail.
If the underlying crime is a Class A misdemeanor, the person who uses a drone to commit that crime is guilty of a felony and subject to a $10,000 fine and up to two years in prison. If the underlying crime is a felony, the maximum fine for the crime is increased by up to $5,000 and the maximum term of imprisonment for the crime is increased by up to five years.