Tag Archives: privacy

If You Think You Have a Secret, You’re Probably Wrong

Thanks to the omnipresence of electronic devices in our lives today, somebody probably knows everything you do. You have a cell phone in your pocket, which is essentially a listening device, your computer might have a camera on it that is potentially watching your every move, HAL 9000 style, and you might even be wearing a smart watch that is literally following you every step. All of those are able to collect data, store it, and potentially share it with others… perhaps even authorities. It’s potentially an avenue for the government to get in your homes and bedrooms.

Much of this technology is new, and the courts are still trying to determine what the limitations are on privacy, and what the government can access and use. The latest test case is actually in Germany, where prosecutors are using data compiled by Apple iPhone’s Health App: an app that is standard and pre-installed on the last several versions of iPhone. The Defendant refused to give up his passcode, by a cyber-forensics firm was able to crack it and give the data to prosecutors.

There are a lot of issues related to this, particularly here in the United States where different Constitutional rights come in to play. Obviously, the rights to privacy, unreasonable search and seizure, and due process are involved, but a major case last year even involved First Amendment aspects. In Arkansas, James Bates was accused of killing his friend Victor Collins, who was found drowned in Bates’ hot tub. In order to strengthen their case, prosecutors sought info from his iPhone to track his phone calls, and even his smart utility meter to demonstrate his water use (they planned to argue that he had hosed down his deck).

The prosecution also went after Alexa- the digital assistant program that works with his Amazon Echo device. Alexa listens and potentially records everything within the range of its microphone, so there’s a major question whether people would have an expectation of privacy around one. The prosecutors sought to obtain the data, when Amazon itself entered the fray with another claim: that they should not have to turn over the data because it would violate the First Amendment… that it could have a chilling effect on protected expression.

Ultimately, the Bates case did not decide the matters. Kathleen Zellner, the attorney who is handling Making a Murderer’s Steven Avery’s post-conviction claims, took over the case and since her defense was not dependent on the Amazon data, waived any objection and it was turned over. Ultimately, it probably did not play a role, as additional medical and forensic reviews apparently convinced the prosecutors that there was not a murder, at least not one that could be proven, and the charges were dropped without the case having to go to trial.

In the meantime, be aware that there is the potential that the government can find out a lot about you, from your computer, your social media, your phone, your watch, your car, your video game, your pacemaker, and in this case, they didn’t just go after Alexa, they used Bates’ hot water heater to charge him with a murder.

Man Accused of Sexual Abuse on Tape Acquitted

Richard McDade

Richard McDade

Richard McDade, of Fort Myers, whose accuser said she recorded a sexual assault, was found not guilty today by a jury. The jury is going to be really pissed when they read this, because they never got to hear the recording of the alleged incident. The case went to trial previously, and McDade was convicted when the  jury heard the surreptitious recording by the accuser. However, the Florida Supreme Court threw out the convictions, saying that the recording was illegal, and ordered a new trial. Without the recording, there was no evidence to corroborate the allegation, and McDade was acquitted.

There will not be another appeal, double jeopardy prevents him from being tried again for the offense, now that he has been acquitted. The legislature has since changed the law to allow such recordings to be introduced in future cases, though it has yet to be signed by the governor.

Minnesota Man Charged for Videotaping Police

Andrew Henderson picture from twincities.com

Andrew Henderson picture from twincities.com

Andrew Henderson, of Little Canada, saw some police action outside his apartment and turned on his video camera. Police frisked a bloodied man, and put him in an ambulance, then walked over to Henderson, and took his camera. A week later, he was charged with obstruction of a legal process, and disorderly conduct. The cop cited a HIPAA violation on her report, though HIPAA definitely does not apply to citizen journalists. The Drudge Report suggests he was charged under a health care law, but he was not charged under the health care law, merely some state misdemeanor charges. Cops keep thinking they can charge people for videotaping in public, which is almost never possible. Henderson says he wants to defend himself, though it would behoove him to have a good lawyer. Either way, I wish him luck. Fighting these types of cases is the only way for law enforcement to learn not to step on people’s rights in this way.