I am perusing the news on my iphone as I sit in court doing what attorneys do there the most – that is wait. I have realized that with each passing day we discover a growing breadth of revelations that our digital communications are being collected by government authorities and others, the NSA in particular. Today, the NSA revealed that it does 20 million database queries a month. See post here with the excuses that the NSA didn’t collect personal info intentionally and, besides, it’s just a small amount of the activity and the intrusions are no big deal. Personally, I am uncomfortable with the intrusions and the explanations by the NSA, however, that is not the reason for this post. Most of the personal communications over the internet or cellular networks are done through emails or text messaging. With either internet or cellular usage, emails and text messages are sent, by default, unsecured and in clear text. What it means is that if someone intercepts your email or text, it can be easily read. By way of comparision, encrypted email is very difficult to read. Email is typically encrypted (along with attaching a digital signature of the sender), by various methods. Click here for a great article on just how to encrypt your emails. I have taken steps to begin encrypting my emails. Some courts require that the attorneys communicatons in cases be by encrypted emails. Text messaging is somewhat different. Text messages are usually sent over cellular data lines using cell phones. There are methods that can be used to encrypt those text messages. Apps are available for the iPhone and Android operating systems. For one, Text Fortress is an iPhone app that encrypts the messages you send and locks them down so only the person you sent it to, can see it. Search your phone’s app store for others. Now to the issue of attorney-client privilege and digital communications. One of the cornerstones of the attorney-client relationship is the protection of client communication from others. To release those communications without the consent of the client is prohibited. Confidentially is paramount. Through the use of today’s technology, lawyers are likely to use email and/or text messages to communicate with thier clients. Lawyers may inadvertently breach the duty of confidentiality, or clients may inadvertently compromise the privilege by unwitingly giving access to communications to a third party. With the use of a gmail account, the user actually gives Google the permission to scan the contents of their email. (Read- Is use of a google email account by a client to communicate with his attorney a waiver of the privilege?) Digital communication is a big area of concern for the American Bar Association and state bar associations. The ABA has already addressed the problem in a formal opinion and state bar associations have either directly addressed it or are considering additional duties on lawyers to become knowledgeable of technology and communication pitfalls. You can find out more from an article on emails and attorney-client privilege by clicking here. For large law firms and corporations, snooping on their communications by governments and hacking of websites may be a serious concern, however, for the small law office, the largest concern is the viewing of emails and text messages by unauthorized eyes having access to a client’s cell phone or email account. Obviously, you should never give your computer or email account passwords to anyone that should not have them. You can just about to imagine those that would love to look at your emails and text messages. Ex-spouses. Ex-partners. Anyone with an “ex” in front of the description. The damage to a client can be significant if confidential information gets out. But, what about seizures by law enforcement personnel. Can a law enforcement officer just take your cell phone at a routine stop or even an arrest, and view the text messages and emails? The whole issue of warrantless searches of emails and texts are at the forefront today. Courts are split on the issue. Last week the Obama administration asked the Supreme Court to resolve the issue and rule that the Fourth Amendment (which prohibits unreasonable searches and seizures) allows warrantless cellphone searches. Jonathan Turley wrote an excellent piece on what the Obama administration is claiming. It’s a must read. Click here. The whole issue of seizure of this type of data revolves around the “reasonable expectation of privacy” in your communications. If the reasonable person would not expect that the communication to be private and, instead, be part of the public domain, then the state does not need a warrant to seize those communications which do form part of the public domain. The problem is determining where emails and text messages stand and whether they are part of the public domain. It’s not simple because all emails and text messages are sent out on a communications platform which can theoretically distribute the contents throughout the world and in an unsecure, unencrypted manner. What part, if any, of these communications does one reasonably expect to be private? Can any part be intercepted or seized by authorities? I am assuming that we are all going to find out soon enough as the U S Supreme Court is likely to get to decide the matter in the near future. In the meantime, how is it addressed in Louisiana? There is a recent case out of the Louisiana Fifth Circuit Court of Appeal which answer the questions of just what is protected from watrrantless searches of cell phone data. The Louisiana Supreme Court has not addressed the situation. The 5th Circuit case is State v Bone, 107 So.3rd 49 ( La. App, 5th Cir., 2012). After an arrest, a cell phone of a third person, though used exclusively by the defendant, was found and its contents searched. A subpoena duces tecum was issued to Sprint Nextel for account information, call detail records, incoming/outgoing text messages, and GPS of the mobile device for defendant’s phone number. The information was turned over ot he state and used at trial. The Defendant filed a Motion to Suppress asserting that the text messages were unlawfully obtained because they were obtained prior to indictment and without a showing of probable cause as required under the Electronic Communication Privacy Act. In his brief to the Court, the defendant claimed that his constitutional rights were violated and that he had a reasonable expectation of privacy in the content of any text messages sent or received by a phone on which he is the exclusive user,” citing U.S. v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The state contended, among other things, that it is unreasonable for defendant to claim an expectation of privacy in the messages because (1) defendant is not the subscriber or owner of the cell phone number at issue despite his exclusive use; and (2) the privacy policies issued by Sprint Nextel specifically warn customers that information may for certain reasons be disclosed to authorities. The court wrote:
“In considering this res nova issue, we turn to jurisprudence from other jurisdictions for guidance to this Court.The United States Supreme Court has consistently held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties because any reasonable expectation of privacy is destroyed when the risk of disclosure is assumed. Smith [v Maryland], 442 U.S. at 743–44, 99 S.Ct. at 2582. However, the Supreme Court has also recognized a “content exception” which draws a distinction between the content of a communication and the data log stored by a third party associated with such communication. See Smith, supra. …The Circuit Courts have further discussed this content exception as applicable to new technologies such as email, internet searches, and text messages. See United States v. Forrester, 512 F.3d 500, 509–12 (9th Cir.2008).
The Court then decided that the defendant did not have a reasonable expectation of privacy in the call detail record log associated with his phone number and found that the call detail record log was properly obtained by the subpoena duces tecum at issue. However, the court also found that the defendant was the exclusive user of the cell phone and he had a reasonable expectation of privacy in the text messages sent and received on the cell phone and, further, the collection and review of the content of defendant’s text messages sent and received by that phone constituted a search which required a showing of probable cause to search its contents. The result in the Louisiana case seems reasonable enough and may very well be similar to an outcome should the Louisiana or U S Supreme Court review the matter. As it stands now, the 5th Circuit court is the only Louisiana court to address the issue directly.