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Privacy Rights in the Facebook and Twitter WorldPosted Thursday, April 21, 2011, at 10:47 PM
This week's news brought a couple stories that concern me. One involved a contraption that can be hooked up to a person's cell phone to download all the data from it. Here is a link to an article about that:
The other thing that caught my eye was on Thursday's (4/21/11) "NBC's Today Show". Apparently, there is some program within an Iphone and Ipad which keeps track of the location of the device and the time. Here's a link to that article:
And then there is the issue of whether or not police may plant a GPS device in or on a vehicle without a warrant.
Here is an excerpt from the May 2009, "Champion" Magazine (published by the National Association of Criminal Defense Lawyers) Page 26 "Privacy and Technology: Law Enforcement's Secret Use of PGS Devices"
By Susan J. Walsh; Ivan J. Dominguez:
When a police officer, entirely within his own discretion, without a warrant and under absolutely no court supervision, crawls underneath a vehicle in the middle of the night to implant a GPS in the bumper or on the undercarriage of the car, and then tracks the driver on the officer's home computer for days, weeks, or months at a time, around the clock, there can be no question that the driver has been subjected to an illegal search. And not just one that implicates the Fourth Amendment right to be free from unwarranted searches and seizures. Observing, collecting, and memorializing a person's every movement implicates First Amendment freedom of association privacy rights as well.
In People v. Weaver, a case of first impression now pending before New York's highest court, the court of appeals, this is precisely what happened. On December 21, 2005, sometime between 1:00 a.m. and 3:00 a.m., law enforcement officers placed a Global Positioning System (GPS) device inside the bumper of Scott Weaver's van.3 That device was used to track the movement of Weaver's van around the clock for 65 days.4 According to Weaver's counsel, "[w]hat little evidence there was against Weaver was almost wholly circumstantial."5 Based in part upon the presence of Weaver's van in the parking lot of a K-Mart on December 24, 2005, about 90 minutes before closing, Weaver was convicted by an Albany County jury of burglary in the third degree and attempted grand larceny in the second degree in connection with a burglary and attempted theft of jewelry from that same K-Mart two hours after closing.6
The unfettered ability of the government to engage in precisely this conduct, without a warrant or even reasonable suspicion, has not been ruled upon directly by the U.S. Supreme Court. And the federal courts are split or undecided on the issue as to whether police installation and use of the device constitute a search or what standard is applied for its surreptitious installation and monitoring if it does.
This issue is not settled within the circuits. In the Northern District of Iowa, I am aware of cases where police have planted GPS devices upon vehicles. I have also heard of a case a local lawyer had in which one divorcing spouse planted a GPS device on the other spouse's vehicle. (Now I guess they could just buy their "soon-to-be" ex an Iphone or Ipad.)
Meanwhile, Yours Truly wonders what happened to the "Do Not Call List" we were told would stop those insidious telemarketing invasions. (They forgot to include political calls in that legislation). It will be interesting to see how the courts will rule on these issues.
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Description: JP's take on legal (and other) issues which interest him. Biography: Born in Spencer Iowa, February 6, 1957; Graduated Spencer High School 1975; University of Iowa (B.B.A. 1979); Creighton University School of Law (J.D. 1984); American Jurisprudence Award: Debtor/Creditor Relations; Assistant State Attorney, Florida, 12th Judicial Circuit, 1986-89; Assistant Clay County Iowa Attorney, 1989-93; Iowa State Bar Association: Volunteer Lawyers, 1993- ; American Citizenship Committee, 1994-98; Bridge the Gap Committee 1991-94; Criminal Justice Act Panel Member, 2002- ; National Association of Criminal Defense Lawyers, 2004- ; Iowa Association for Justice, 2004- ; American Bar Association, 1984- ; Florida Bar Association, 1986- .
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