Recent Virginia Case Carries Major Implications for Fingerprint Passcodes and Self-Incrimination

This article was originally published in the Spring 2015 issue of the Virginia Bar Association YLC Docket Call.

The ever-evolving technological landscape constantly elicits new and interesting questions of law. Privacy and data security are areas of contention and confusion for many. Why?  Because privacy limits are unclear because the reach of technology outpacing the evolution of the law. As cell phones have advanced, they have become essential to everyday life and are no longer merely phone used to make and receive calls. Cell phones are minicomputers filled with personal, and mostly private, information including calendars, alarm clocks, books, videos and photos. People store everything from grocery lists to banking information in phones. How do the laws that govern phones solely to make and receive calls apply to these new multifaceted devices? Courts and lawmakers are slowly answering that question.

In Reily v. California, the Supreme Court shed some light on privacy limits regarding cell phones.[1] The Court held that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested. The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee’s person, such as a wallet. This ruling is a necessary stride towards deciphering how the Fourth Amendment applies in this digital age but leaves a lot of unanswered questions.

After obtaining a warrant to search a phone how will officers access the contents? Can officers compel the accused to provide one’s passcode or fingerprint? Existing laws do not apply smoothly and presents an interesting question: Is producing one’s passcode or fingerprint to allow access to digital information on a smartphone testimonial communication subject to the Fifth Amendment privilege against self-incrimination?[2] This was the question answered in the Virginia case Commonwealth of Virginia v. Baust.[3]

In Commonwealth of Virginia v. Baust, the defendant David Baust was indicted on charges of assault.[4] The victim alleged that video of the assault was on Baust’s smartphone.[5] The police obtained and executed a search warrant, retrieving (among other items) the smart phone.[6] However, the phone was “locked” and could only be entered using a passcode or fingerprint.[7] The court decided to review each method of entry separately under the Fifth Amendment and arrived at two different conclusions.

The court held that fingerprints and passcodes are different in the eyes of law because of the testimonial nature of providing a passcode, which violates the accused’s right not to incriminate him or herself. The Judge explained that Baust could not be compelled to provide his passcode to access the smartphone, but could be compelled to produce his fingerprint to access the phone.[8] Producing the passcode would require the defendant to divulge knowledge—information from his own mind, placing it in the testimonial realm.[9] However, he concluded that a personal fingerprint does not require any similar knowledge—it is equivalent to a key that fits into a lock.[10]

This legal distinction will have a major impact on smartphone users, especially as providers market the increased security of these alternate access mechanisms. Your fingerprint is advertised as a more secure method for accessing tour phone but presents vulnerability if ever compelled to provide access to your phone. The legal differences may not be clear to users, as the passcode and the fingerprint are functionally equivalent. Should they really be distinguished under the law? Is there a distinction between telling police a passcode and typing in the passcode so that police may gain access to a phone? By typing the code, the individual does not have to provide any knowledge (testimony) directly to the police, although still providing access to data that is potentially criminally incriminating. Is the outcome or the means more important, because although not a verbal testimony providing a fingerprint or writing a passcode may lead to criminally incriminating information?

This decision raises a lot of questions and determining privacy rights in our technology will only get more complex as technology continues to evolve. The court is being charged to assess the functional and technological implications of new technology and create laws with those perspectives in mind. This is a difficult balance. Consistency will also be important to citizens as they seek to protect themselves within the bounds of these laws.

Most immediately, in Virginia, you should protect your phone using a passcode, not your fingerprint.

 

 

[1] 134 S. Ct. 2473, 2477 (2014).

[2] Commonwealth of Virginia v. Baust, No. CR14-1439, at 2 (Va. 2d Cir. Ct. Oct. 28, 2014).

[3] Id. at 1.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 4.

[9] Id. at 5.

[10] Id.

SCOTUS rules that police need a warrant to search cell phones

As we become more reliant on our devices, they collect more data on us, much of which is extremely private. Access to this data has been a point of contention for some time. The Supreme Court’s decision to hear Riley v. California presented an opportunity to draw clear boundary for police in the area of personal privacy.   Privacy groups have been advocating for requirements on how and when cell phone data can be accessed and used by the government since that decision. On June 25, 2014,the Supreme Court announced a win for personal privacy by deciding that a warrantless search of a suspect’s cellphone data incident to arrest is unconstitutional.

Case Highlights

  • “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
  • The Court observed that modern phones are mini-computers that perform multiple functions and hold immense amount of personal data, and were themselves inconceivable when the Court had originally permitted police to search individuals incident to arrest.
  • The Court acknowledged that searching a cell phone can potentially expose more information to the government than a search of an individual’s house, given the amount of data typical phones can store. The fact “that technology now allows an individual to carry such information in his hand does not make the information any less worthy of . . . protection.”
  • The Court makes clear that “Privacy comes at a cost,” and that the warrant requirement is “an important working part of our machinery of government” that must be respected.
  • The Exception: Although the Court dismissed all of the arguments that were presented for justification of a warrantless search they did say that in “exigent” circumstances like prevention of a terrorist plot or finding a missing child, that police are able to proceed without a warrant. However, after such a warrantless seizure, a court would still have to “examine whether an emergency justified a warrantless search in each particular case.”

Bottom line

From now on, your phone should not be searched just because you have been arrested. Officers must have a warrant to search your phone, aside from a narrow exception.

What’s Next

This case will play a major role in the already contentious debate surrounding personal privacy. It will be interesting to hear how this changes the application of Fourth Amendment protections to searches and seizures of all computers.

Do Not Track Me… But Cater to Me

We have all become accustomed to having our technology cater to most of our needs in very personal way. However, we all desire to retain a certain amount of privacy.  For example, our cellphones track our every move and click while occasionally make calls – and yet we would be lost without the maps and ability to request anything from “Siri.” Our cable boxes may bring our favorite shows and movies but they also report back to providers all of your family’s television viewing habits.  We all appreciate the convenience that customization provides however that means a loss of privacy….

Why Are We Worried?
The latest buzz word is the The Internet of Things (IoT). What is that? “The Internet of Things” refers to the concept that the Internet is no longer just a global network for people to communicate with one another using computers, but it is also a platform for devices to communicate electronically with the world around them. The result is a global “network of physical objects that contain embedded technology to communicate or interact with people, things, and the external environment. It includes everything from traffic sensors to refrigerators, thermostats, medical devices, and wristwatches that can track or sense the environment and use the data they collect to provide a benefit, or transmit the data to a central repository for analysis, or both.”

This network of objects enables providers of goods and services to use your personal behavior to profile and evaluate your activities and habits.  The Internet of Things will result in increased data collection, amplifying the importance of simplifying choices and giving control to individuals with real-time notices. Transparency will facilitate consumer understanding of the collection, use and sharing of personal data. However, there is a real danger of data being used in unexpected ways. The Internet of Things has created a potential perfect storm of four major information policy concerns: online safety, privacy, security, and intellectual property issues. The goal is to determine what “reasonable” expectations regarding data usage should be, and then manage consumer expectations accordingly. Measures ensuring the network’s resilience to attacks, data authentication, access control and client privacy need to be established.  An ideal framework would consider the underlying technology and involve collaboration on an international scale.

The need to balance reasonable activity on the Internet and use of The Internet of Things with responsible privacy protections is exponentially increasing. This balance is extremely important because the last thing we want is to stifle innovation by over legislating this area.

Laws to Watch
At least 14 states have proposed legislation on the 2014 docket that is intended to increase privacy protection for consumers and limit both government and private sector surveillance via the Internet of Things. At the federal level, several bills are already making their way through Congress.

State
AB370, an amendment to the California Online Privacy Protection Act of 2003 (“CalOPPA”). CalOPPA requires owners of commercial websites and online service providers (“operators”) to conspicuously post a privacy policy. The privacy policy must disclose to consumers, among other things, the categories of personally identifiable information (PII), such as name, hone address, email address, social security number,  the operator collects and with whom the operator shares such information. Operators affected by CalOPPA include website operators and, as interpreted by the California Office of Attorney General, operators of software and mobile apps that transmit and collect PII online.

Federal 
The Black Box Privacy Protection Act is a bill in front of Congress that prohibits the sale of automobiles equipped with event data recorders-unless the consumer can control the recording of information. Additionally, the data collected would belong to the vehicle owner.

The We are Watching You Act is a bill in front of Congress that requires the operator of a video service (such as a DVR or Xbox) to display the message “We are watching you” as part of the programming provided to the consumer prior to the device is collecting visual or auditory information from the viewing area. This is not likely to pass but its a sign of legislation to come.

The Federal Trade Commission (FTC) has this phenomenon on its radar, it hosted an all-day workshop entitled, “Internet of Things: Privacy and Security in a Connected World in November. The FTC has also released a number of reports and guidelines that direct business on how to protect consumer privacy.

International 
With Internet Governance on the forefront of international discussion, international “Internet of Things” legislation is not the priority and likely to be left up to each country to decipher. International collaboration on issues like this early is one out come I hope comes from these Internet Governance talks…. but we’re a long way out from that happening.

The examples listed are a narrow sampling of privacy legislation designed to protect users from unwanted intrusions. Most notably, states have passed a number of laws protecting privacy rights in recent years.

Conclusion
The Internet of Things will bring tremendous new benefits to consumers but we must balance the need for consumer privacy. State, federal and international regulators must work to restrict government and private-sector collection and control of the data IoT will create. In the meantime, make sure you are aware of the information you provide through your IoT. Explore privacy settings and read privacy policies if you are concerned about sharing too much data with providers. Know what your priorities are as it relates to customization and privacy. If you value convenience and do not mind a prying eye or two, if it means a personalized user experience, share your data freely. However, if you value preserving your privacy be proactive about doing so until lawmakers can find the appropriate balance. Do not shun technology just educate yourself.

Social Networking Online Protection Act: Will this Protect your Social Media Privacy Rights?

Representative Eliot Engel (D-NY) introduced the “Social Networking Online Protection Act,” H.R. 537 to Congress in February.  This bill would be the national version of the social media privacy laws popping up in states nationwide. Increasingly employers and other authority figures have asked employees and others to turn over their username or passwords for their personal accounts. State legislators began introducing legislation in 2012 to prevent employers, colleges, etc. from requesting passwords to personal Internet accounts—including email, banking and social networking sites—in order to get or keep a job or regulate student activity.

Unlike most of those state laws, the bill would also protect passwords to email accounts. Seven states, California, DelawareIllinoisMaryland, Michigan, New Jersey and most recently Utah, currently have social media privacy laws on the books prohibiting requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account. California, Illinois, Maryland, Michigan, and Utah laws apply to employers. California, Delaware, Michigan and New Jersey have laws that apply to  academic institutions.

Will this bill solve the privacy issues that occur when an employer or academic institutions requires revealing your password for your personal account?

Limits must be set for how and when authority figures such as employers, coaches, professors, etc, can access private social media information. Anything made public by the user is fair game because that is the information they have elected to present to the world. Reputation and public persona are important to potential and current employers and university officials because that information can affect public perception of them.  Although our online image is important and can provide a lot of information about an individual, the information that’s private should be kept that way.  A private photo album on Facebook can be likened to a photo albums kept at home vs. photos you display at work or in a public album online.  Privacy is a fundamental right and should be preserved.

Lets take a closer look at a few key points of the bill…

Under the federal bill social networking is defined as:

“[A]ny Internet service, platform, or website that provides a user with a distinct account–

“(A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and

“(B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.”

Defining “social networking” or “social media” could be problematic with the discrepancy between the rate of evolution of social media and the rate of evolution of the law.  Maryland’s approach of  focusing on whether the circumstance at hand involves a user name or password, and leaves vague the nature of the account or service to which the user name or password relates might be better for keeping this law relevant long term.

The bill does specify that it must be a personal account preserving and employer’s interest in accounts the own or accounts operated by employees for business purposes.  Employees and students should be careful not to mix business and personal accounts. Accounts where the line between business and personal will be where the limits of this law are fleshed out.

Enactment of the law would curtail the need for more sate laws on the issue and provide uniform protect. Uniform standards make drafting policies a lot easier for employers and universities.  They also help users know the limits of their protection nationwide, there are no worries of where to bring a suit if you feel your privacy rights have been violated in this way.

Some wonder if this is a matter for federal law?  Well, I think the answer lies in the answer tot he question “Whose job is it to protect the privacy rights of American citizen?”

My answer to the question indicates that Congress is well with its bounds.  What do you think?

Protecting the Mobile App Space

Mobile apps are the new frontier.  With every new terrain comes a lot of risks and eventually regulation.  About 8% of Android apps are vulnerable to attacks as a result of weak SSL implementations, according to a new computer security study. SSL/TLS are cryptographic protocols used to secure online communications. According to Information Week Security “Security researchers in Germany analyzed 13,500 free Android apps from Google Play and found that 1,074–about 8%–contain SSL/TLS code that could potentially make them vulnerable to what’s known as a Man-in-the-Middle (MITM) attack.”

Although not a new problem, attackers are increasingly using a simple method for finding flaws in websites and applications: They Google them. Using Google code search, hackers can identify crucial vulnerabilities in application code strings, providing the entry point they need to break through application security. In Information Week Security’s report, Using Google To Find Vulnerabilities In Your IT Environment, we outline methods for using search engines such as Google and Bing to identify vulnerabilities in your applications, systems and services–and to fix them before they can be exploited.

In light of these attacks, privacy and security are increasing concerns. In response to these issues California has implemented the California Online Privacy Protection Act — a.k.a. CalOPPA. Under this act, California is set to begin fining mobile app developers that release apps that lack a clear and easily accessible privacy policy. Attorney General Kamala D. Harris started notifying businesses this week that their apps did not have easily accessible privacy policies, as required by the state’s Online Privacy Protection Act. The warnings affect as many as 100 apps.

Violators will face fines of up to $2,500 for every non-compliant app that gets downloaded. Businesses that received the state’s privacy-warning letters this week included the airlines Delta and United Continental, as well as OpenTable, reported Bloomberg.

Earlier this year, Harris helped create an agreement among the seven leading mobile and social app platforms to improve privacy protections for those who use apps on their smartphones, tablets, and other electronic devices. According to her release, these companies – Amazon, Apple, Facebook, Google, Hewlett-Packard, Microsoft, and Research in Motion – agreed to privacy principles designed to bring the industry in line with California law requiring mobile apps that collect personal information to have a privacy policy.

The agreement allows consumers the opportunity to review an app’s privacy policy before they download the app rather than after, and offers consumers a consistent location for an app’s privacy policy on the application-download screen in the platform store.

“Smartphones are in my opinion the greatest threat to loss of intellectual property and concern about privacy,” said Darren Hayes, an assistant professor and expert in computer forensics at Pace University. “There are mobile apps that are masked as legitimate games which compromise other data on your phone. More aggressive privacy laws may mitigate some of the risk.”

A lot of apps would have to be updated to include the privacy notice. I hope 30 days is sufficient to make the necessary changes for affected applications.

Mobile security experts and vendors said the crackdown was good for the industry, because it would boost California consumers’ confidence. California is one of the most aggressive states in the nation on privacy protection.

This could be the catalyst necessary to make other states demand greater privacy protection. The problem is always in balancing protecting privacy with limiting speech. This is only the beginning….