In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.
A new, just released report shows the number of federal and state-authorized wiretaps conducted in 2019. A wiretap is a court-authorized warrant, allowing law enforcement to listen to and record conversations and/or text messages on a target’s phone. In most jurisdictions, the law enforcement agency applying for such an order must demonstrate that there is probable cause to believe that the target is engaged in a specified unlawful activity, that he uses the particular phone to conduct his illegal activity, that traditional methods of investigation have been tried or would not likely be successful, and that the wiretap is necessary to uncover the full extent of the target’s criminal activity, and/or the other coconspirators’. Such authorizations are usually limited to a 30-day period, but can be extended by a court under certain circumstances. Many individuals in the United States use encrypted messaging to protect their privacy – some for innocuous reasons, others for more illicit ones. Encryption may not, however, protect messages and conversations from being produced pursuant to a wiretap.
Despite the United States Supreme Court decision in Carpenter v. United States requiring law enforcement to obtain a court authorized warrant for historic and current cellphone location data, four main cellphone carriers have continued to sell real-time location data to a host of entities, including federal law enforcement agencies. The Federal Communications Commission (FCC) is proposing fines of up to $200 million against these carriers for the violations.
Over the past several months I have written about the increasing use of every day technology that automatically tracks our movements and records our conversations. Cellphones ping off cell towers that give the government access to our daily movements through information stored by carriers like Verizon, AT&T and Sprint. Alexa and other smart home devices can record our conversations and keep track of our search histories. Smart phone apps and Fitbits that track movement, heart rates and other physical activity can be used to track locations, times and other physical attributes that law enforcement can access to investigate a variety of crimes.
With the advent of “smart homes and devices,” we are now in a world once only imagined in science fiction. Our phones now track our every move, contain our internet search histories and record vast portions of our lives through photos, texts, and encrypted messages. Home security devices and cameras record not only strangers coming to your home, but also you and your invited guests. Baby monitors, smart kitchen devices like refrigerators, and home devices like Amazon’s Echo, are always on and potentially recording or transmitting. And therein lies the problem.
Anything attached to the internet – the Internet of Things – can be hacked, intercepted or legitimately recorded. Since these devices are in the privacy of our own homes or businesses, they have the ability to capture our most intimate and private conversations and actions.
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Technology has advanced the ease and quality of life immeasurably. Smart phones are handheld computers that can surf the internet; deliver emails, texts and phone calls; take videos and pictures; make dinner reservations and track your every movement through various apps. Our cars can almost drive themselves with lane change warnings; infrared cameras; heads-up displays, cruise control with radar; event data recorders that record speed, braking and seatbelt use; and GPS tracking in case the car is stolen. Home security cameras, Amazon Echo, smart TV, smart appliances and the like can all be controlled remotely through the internet. A variety of devices that are small and comfortable enough to wear, such as Fitbits, iWatches and the like can track our movements, heart rates, calories burned, number of steps and location.