criminal law

Does technology have to trump privacy rights?

Posted on March 31, 2009. Filed under: criminal law |


This week’s Daily Record column is entitled “Does technology have to trump privacy rights?”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Privacy advocates in recent years have expressed the concern that privacy is disappearing as people voluntarily disclose all kinds of information —including their every waking move — on the Facebook, Twitter and other Internet platforms.

They fear that companies, such as Internet giant Google, are collecting extensive amounts of data about users’ spending habits and preferences in ways never before possible.

The issue of the loss of privacy is all the more disturbing when the government, as opposed to private entities, uses the newfound technologies to collect information about the movement, actions and habits of its private citizens.

Last week, the New York State Court of Appeals heard oral arguments regarding that very issue. At issue in People v. Weaver was the admissibility of evidence obtained without a warrant by law enforcement through the use of a GPS tracking device.

The courts below concluded that the evidence was admissible. In People v. Weaver, 52 A.D.3d 138 (Third Dept. 2008), the majority held that the defendant had no
expectation of privacy regarding public movements that would have been visible via the naked eye:

Inasmuch as constant visual surveillance by police officers of [the] defendant’svehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections. See People v. Wemette, 285 AD2d 729, 729- 730 (2001), leave denied 97 NY2d 689; People v. Edney, 201 AD2d at 499.

Judge Leslie E. Stein, issued a lengthy dissent, opining that a warrant should have been required since technology increased the intrusiveness and duration of the monitoring, necessarily altering the analysis:

[W]hile the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause. … At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable. In my opinion, that point has been reached in the facts before us.

During oral arguments at the Court of Appeals, judges came down on both sides of the issue.

Judge Eugene Pigott seemed to agree that a warrant was not required prior to placing a GPS device on a car parked in a public place: “They have a device here that they at some point decided they wanted to use. … And there’s nothing that says they cannot.”

Chief Judge Jonathan Lippman, on the other hand, expressed concern regarding privacy rights if limitations are not placed on the ability of law enforcement
to indefinitely monitor a person’s each and every move: “We have to also consider the opportunity for abuse.”

Chief Judge Lippman’s point is of the utmost impor- tance. Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?

It is for that very reason that reasonable limits must be set regarding the warrantless use of technologies that enhance the senses of law enforcement officers.

Certainly law enforcement should be able to use the most up-to-date technologies available to them, but not indiscriminately.

Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

As technology transforms our lives, the interpretation of our laws must adapt to realities not envisioned when the laws were first established. The failure to do so will render our laws and constitutional protections obsolete, irrelevant and ineffective.

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Technology (already) invades the courtroom

Posted on January 13, 2009. Filed under: criminal law, Social Media, The times they are a'changin', Web 2.0 |

This week’s Daily Record column is entitled “Technology (already) invades the courtroom.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Technology (already) invades the courtroom

I’ve said it before and I’ll say it again: The times they are a-Tech- nological advancements are affecting courtrooms across the country, much to the consternation of many in the legal profession who staunchly resist technological change.

Two recent events — a decision from Appellate Division, First Department and live reporting of a trial via Twitter — are further examples that technology is here, and it’s here to stay.

At the end of December, the First Department handed down its decision in People v. Wrotten, 2008 NY Slip Op 10226. At issue in Wrotten was whether the trial court erred in allowing the complainant to testify at trial via two-way, televised video.

The court held that the trial court improperly admitted the testimony since New York statutory law did not specifically provide for it, but also noted:

At the very least, even assuming that [the] defendant’s Sixth Amendment right of confrontation was not violated, she was denied a valuable component of that right. In our judgment, in the absence of express legislative authorization, depriving [the] defendant of a face-to-face meeting with her principal accuser — indeed, the person whose testimony was necessary for the prosecution to make out a prima facie case — tainted the fairness of the trial.

The majority and the dissent in Wrotten noted that for a variety of constitutional and procedural reasons, federal and state courts are split on the issue of allowing a witness’ court testimony via a live, two-way video feed.

While the law regarding live televised testimony remains unsettled, one thing is certain: It’s an issue that won’t go away.

Another technology trend that only will increase with the passage of time is live reporting of trials via micro-blogging services such as Twitter.

Twitter is a free, Web-based communications platform that allows users to share information with others with similar personal and pro- fessional interests. Users communicate using text-based posts (“tweets”) of up to 140 characters in length.

Twitter has more than 3.2 million accounts registered, and its user base is expanding quickly. Twitter can be used in a variety of unique ways, which are evolving constantly.

Courtrooms are not immune from the effects of the popular phenomenon, as reporters increasingly seek to use Twitter to report live in the midst of trials.

The most recent example occurred in a Colorado courtroom. Wichita Eagle reporter Ron Sylvester sought to post to his blog and Twitter throughout the trial. As he explained on his blog, What the Judge Ate for Breakfast, his intention to do so stemmed from historical tradition:

The notion of public courts predates our Constitution and even the Magna Carta. There are records of public trials following the Saxon invasion in England, where trials were held on the public square of villages. Our public squares now include Twitter.

Over the objections of both the prosecution and defense counsel, the trial judge allowed the use of cell phones and computers in the courtroom during the child abuse trial.

Last week, Sylvester chronicled the happenings of the trial. At one point, he posted on Twitter about an evidentiary issue:

-Getting ready for pretrial hearing of George Tiller, Day 2. 9:58 a.m. yesterday from txt

-Judge Owens has called the hearing to order. He is ruling on whether Kline has to turn over personal diary to Tiller’s attorneys. 10:28 a.m. yesterday from txt

-Kline gets to keep his diaries private. 10:32 a.m. yesterday from txt

-Owens ruled that ‘work product’ applies to prosecutors, such as notes on opinions and theories of a case. 10:32 a.m. yesterday from txt

Many found it fascinating to watch the trial unfold live, as it happened, rather than reading accounts of it after the fact. Technology made that possible.

Technology has invaded our lives, our homes, our offices, our courtrooms. Technological change has made a lot of things possible that once were unimaginable.

Technology is here to stay. There’s no looking back. Let’s accept that fact and move forward, shall we?

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Technology, social media and the Penal Code.

Posted on October 7, 2008. Filed under: criminal law, Social Media, The times they are a'changin' |

This week’s Daily Record column is entitled “Technology, social media and the Penal Code.”

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Technology, social media and the Penal Code.

While working on the annual update for the West criminal law treatise that I co-author, “Criminal Law in New York,” I noted with interest the effect of the increasing use of social media and technology on New York’s penal code and interpretive case law.

Not surprisingly, the crime of Aggravated Harassment, which prohibits certain forms of harassing or annoying communication, soon will be amended to keep pace with the concepts of “communication” and “data storage,” which always are evolving as a result of technological advancements.

Effective Dec. 3, Penal Law §240.30(1) will be amended to prohibit a person from communicating or
causing communication to be initiated, whether anonymously or otherwise, “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” Also effective Dec. 3, a new subdivision will be added to Penal Law §240.30, to clarify the meaning of subdivision one, providing that “[f]or the purposes of subdivision one of this section, ‘Form of written communication’ shall include, but not be limited to, a recording as defined in subdivision 6 of section 275.00 of this part.”

Penal Law §275.00 defines “recording” as “an original phonograph record, disc, tape, audio or video cassette, wire, film, or any other medium on such sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a copy or reproduction that duplicates in whole or in part the original.”

Rapid technological changes and the increasing use of social media, likewise, have required New York courts to grapple with issues of whether the use of new forms of communication violate the crime of Aggravated Harassment.

In People v. Rodriguez, 19 Misc.3d 830, 860 N.Y.S.2d 859 (Crim.Ct. 2008), the court noted that messages transmitted through MySpace, an online social networking site, can constitute Aggravated Harassment, as long as there is evidence that the communications were unwelcome.

Similarly, in M.G. v. C.G., 19 Misc.3d 1125(A), 862 N.Y.S.2d 815, (Fam.Ct. 2008), the court concluded that e-mails also are a form of communication and, thus, can constitute Aggravated Harassment. In another case, text messages sent using a cellular telephone were held to violate this statute. People v. Limage, 19 Misc.3d 395, 851 N.Y.S.2d 852 (Crim.Ct. 2008).

Not surprisingly, another area of the Penal Law affected by technological change is Article 275, which sets forth offenses related to unauthorized recordings.

One recent case of interest is People v. Colon, 46 A.D.3d 260, 847 N.Y.S.2d 44 (First Dept. 2007). In
Colon,the defendant was accused of selling pirated music and, subsequently, was convicted of failing to disclose the origin of a recording in the second degree.

On appeal, the defendant argued his inclusion of the manufacturer’s Web site address on the allegedly pirated music satisfied the address requirement of Penal Law §275.35, precluding his conviction. The First Department disagreed, concluding the term “address” refers to a physical location, as opposed to an Internet address.

The holding surprised me. Arguably, the legislative intent of the statute is to ensure credit where credit is due, and it seems the defendant in this case did just that. A Web site provides far more information about the manufacturer than the physical address does, and the physical address most likely can be found on the Web site, in any event.

I suspect that, with the passage of time, ideas that were once universally understood, such as that of an address, will become more malleable as technology alters the landscape of our lives. Clearly, such adaptation occurs more easily with the concept of communication as opposed to that of location.

While the courts, initially, may resist the rapidly changing conceptual framework of our culture, eventually, as in the case of the Aggravated Harassment statutes, change will occur.

–Nicole Black

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