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Privacy Rights Discussed By Injury Lawyer

Fairfax Injury Lawyer Brien Roche Addresses Privacy Rights

Brien Roche

Privacy Rights

In Virginia privacy rights are largely creatures of statute. The actual cause of action for invasion of privacy is limited. It is based on the use of a person’s name or picture for some commercial purpose.

The scope of police surveillance raises a number of questions as far as privacy rights.  A device known as the “StringRay” simulates a cell phone tower. It enables the police to collect the numbers of individual cell phones. With that info it can locate where those cell phones are.  The simulated cell phone tower collects not only the info relating to criminal suspects but also all other persons. All of those phone calls are being processed through that simulated tower.

The US maintains that a warrant is not needed to use this type of device. The theory is that the police are not intercepting any phone calls.

Warrant May Be required

Some judges disagree with that. Some have required that warrants be obtained.

A Washington Post article of March 28, 2013 reports that a federal magistrate in the southern district of Texas denied an application for the use of the StingRay device. The reason in part was because the FBI had failed to explain the scope of info that would be obtained.

In another case involving an alleged hacker the U.S. did obtain a warrant to track.  However defense counsel in that case maintained that the U.S. did not present all of the pertinent info. The magistrate was not told of the scope of info that would be obtained. In addition he was not told what might be done with it. Further the magistrate was not told what would be done with the info relating to non-criminal suspects. Call, or contact us for a free consult.

The logic from the police point of view for these types of intercepts is that they are needed to track potential terrorists.

In contrast the civil libertarian view is that data that is collected may be used by the police for improper purposes.

Privacy Rights-Cell Phone Data

Locating people through cell phone data is increasingly common.  The technology is subject to challenge as to accuracy. In a recent criminal case the U.S. sought to show that the defendant was in fact located at the scene of the crime through cell tower records.  Defense counsel challenged the the data under Daubert. The judge concluded that there were multiple factors that could affect the signal strength of the tower. The defense claimed that the technology used is “junk science” and should not be admitted. In addition the defense contended that the data from a single cell tower cannot reliably be used to locate a caller at the time of a particular call.

Privacy Rights-Cell Records Are Not For Tracking

Cell tower records are the basis for billing records from cell companies. They show the date and time of all calls. In addition they show the number called and duration of call. Also they show the cell tower used to begin and end a call.

These records were never designed to be used for tracking purposes. They are not the same as a global positioning system (GPS).  Although many phones do have GPS technology, not all of them do.

Calls Do Not Always Go To Closest Tower

The flaw in this technology is that cell phones do not always connect to the closest tower. There are a variety of factors that will determine which tower a phone will connect to. These include weather and topography. In addition physical obstructions, tower maintenance and whether the phone is being used indoors or outdoors are all factors to be looked at.

What the records can show is whether a person who has denied being in the coverage area of a particular tower at a given time was in fact lying. However the records cannot tell you where within that coverage area the caller was. In some areas the caller could have been anywhere within a 420 square mile vicinity of a particular tower.

That does not exactly pinpoint the location of the caller. Call, or contact us for a free consult.

Privacy Rights and National Security Letters

Privacy rights were the subject of a recent decision from a U.S. court in northern California.  The court was dealing with what are called national security letters.  A national security letter is a letter issued by an FBI supervisor to obtain info from internet companies such as Facebook, Google, etc.  With the national security letter goes a gag order. This prevents the internet company from disclosing to the customer or to anyone else the fact that they have been issued a national security letter. This letter directs them to turn over subscriber information on customers.

In any such national security letter there is always a target of the probe. The target is not informed of the letter.  An FBI supervisor need only certify that the records sought are relevant to an authorized national security investigation.  There is no warrant issued.  There is no court supervision. 

FBI Abuse

Within the Department of Justice, the Inspector General found several years ago that the FBI had been abusing its authority. It was issuing these letters without proper basis.

After 9/11 the FBI was issuing an average of 50,000 such letters a year.  In 2011 according to a March 16, 2013 article in The Washington Post, the Department of Justice issued 16,500 such letters on 7,200 different targets.

The court reviewing the issue decided that the gag order that goes with the letter creates too great a danger of speech being restricted.  Another judge in New York had several years ago reached the same result.

A law firm involved in this issue opined it would be best if Congress clarify the statute. The goal being to set forth exactly what sort of info may be obtained without court oversight.

Privacy Rights-DNA

The U.S. Supreme Court has also dealt with some DNA privacy issues that have put all 50 states and the District of Columbia in bed together. That is, all 50 states and Washington, DC actually agree on the policy. This policy is that of taking DNA samples from certain persons that are arrested for use in crime tracking.

The case involved an individual who was convicted of rape after a DNA match. The Maryland Court of Appeals overturned the conviction and the state law saying that it violated the Constitution’s protection against unreasonable searches. That DNA sample had been taken in conjunction with that person’s commission of another crime.

DNA Like Fingerprints

Those who argue against the use of these DNA samples claim an invasion of privacy. The Maryland statute allows for collection of DNA samples from those arrested for certain crimes. If the arrest does not lead to a conviction, then the sample is to be destroyed.

The more precise issue before the court is whether DNA collections are any different than fingerprinting. When a person is arrested, he is fingerprinted and photographed. Those fingerprints can then be used to match that person to other crimes.

There is no real difference between so-called “DNA fingerprinting” and the actual fingerprinting itself. Fingerprinting involves a technician physically rolling a person’s fingers on an ink pad. This is to collect fingerprints of all 10 fingers. That is a intrusive and cumbersome process.

DNA Less Invasive

On the other hand taking a DNA sample involves a swab from inside the person’s mouth. It is considerably less intrusive. It is less time-consuming. Also it involves less personal contact between technician and suspect. Certainly if there are issues as to privacy, then restrictions can be put on the use of these DNA samples. However using the DNA samples to determine whether or not this person may be involved in some other crime promotes public safety. Also it enhances the reach of law enforcement. In addition it involves minimal intrusion into anyone’s privacy. Call, or contact us for a free consult.

Privacy Rights-GPS Tracking

We all have some fear of living in a police state.  The potential for police surveillance over the years has been much enhanced through the use of cameras. Now Global-Positioning System devices are in use. These types of surveillance devices are especially effective in following and keeping track of the movements of drug dealers. 

In early 2012 the U. S. Supreme Court in United States v. Jones, 132 S. Ct. 945 decided that the attachment by police of a GPS tracking device to a vehicle and the use of that device was a “search”. A search in general is any police intrusion into an area where a citizen has a reasonable expectation of privacy. 

In that case the police did not have a warrant for the use of such GPS device. They tracked the vehicle for a total of 28 days. They then used that info to prosecute the individual for drug crimes. All nine Judges of the Court agreed that this violated Mr. Jones’ rights.

Call, or contact us for a free consult. For more information on privacy see the pages on Wikipedia and also see the pages on personal injury.

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Contact Us For A Free Consultation

Privacy Rights Discussed By Injury Lawyer

Fairfax Injury Lawyer Brien Roche Addresses Privacy Rights

Brien Roche

Privacy Rights

In Virginia privacy rights are largely creatures of statute. The actual cause of action for invasion of privacy is limited. It is based on the use of a person’s name or picture for some commercial purpose.

The scope of police surveillance raises a number of questions as far as privacy rights.  A device known as the “StringRay” simulates a cell phone tower. It enables the police to collect the numbers of individual cell phones. With that info it can locate where those cell phones are.  The simulated cell phone tower collects not only the info relating to criminal suspects but also all other persons. All of those phone calls are being processed through that simulated tower.

The US maintains that a warrant is not needed to use this type of device. The theory is that the police are not intercepting any phone calls.

Warrant May Be required

Some judges disagree with that. Some have required that warrants be obtained.

A Washington Post article of March 28, 2013 reports that a federal magistrate in the southern district of Texas denied an application for the use of the StingRay device. The reason in part was because the FBI had failed to explain the scope of info that would be obtained.

In another case involving an alleged hacker the U.S. did obtain a warrant to track.  However defense counsel in that case maintained that the U.S. did not present all of the pertinent info. The magistrate was not told of the scope of info that would be obtained. In addition he was not told what might be done with it. Further the magistrate was not told what would be done with the info relating to non-criminal suspects. Call, or contact us for a free consult.

The logic from the police point of view for these types of intercepts is that they are needed to track potential terrorists.

In contrast the civil libertarian view is that data that is collected may be used by the police for improper purposes.

Privacy Rights-Cell Phone Data

Locating people through cell phone data is increasingly common.  The technology is subject to challenge as to accuracy. In a recent criminal case the U.S. sought to show that the defendant was in fact located at the scene of the crime through cell tower records.  Defense counsel challenged the the data under Daubert. The judge concluded that there were multiple factors that could affect the signal strength of the tower. The defense claimed that the technology used is “junk science” and should not be admitted. In addition the defense contended that the data from a single cell tower cannot reliably be used to locate a caller at the time of a particular call.

Privacy Rights-Cell Records Are Not For Tracking

Cell tower records are the basis for billing records from cell companies. They show the date and time of all calls. In addition they show the number called and duration of call. Also they show the cell tower used to begin and end a call.

These records were never designed to be used for tracking purposes. They are not the same as a global positioning system (GPS).  Although many phones do have GPS technology, not all of them do.

Calls Do Not Always Go To Closest Tower

The flaw in this technology is that cell phones do not always connect to the closest tower. There are a variety of factors that will determine which tower a phone will connect to. These include weather and topography. In addition physical obstructions, tower maintenance and whether the phone is being used indoors or outdoors are all factors to be looked at.

What the records can show is whether a person who has denied being in the coverage area of a particular tower at a given time was in fact lying. However the records cannot tell you where within that coverage area the caller was. In some areas the caller could have been anywhere within a 420 square mile vicinity of a particular tower.

That does not exactly pinpoint the location of the caller. Call, or contact us for a free consult.

Privacy Rights and National Security Letters

Privacy rights were the subject of a recent decision from a U.S. court in northern California.  The court was dealing with what are called national security letters.  A national security letter is a letter issued by an FBI supervisor to obtain info from internet companies such as Facebook, Google, etc.  With the national security letter goes a gag order. This prevents the internet company from disclosing to the customer or to anyone else the fact that they have been issued a national security letter. This letter directs them to turn over subscriber information on customers.

In any such national security letter there is always a target of the probe. The target is not informed of the letter.  An FBI supervisor need only certify that the records sought are relevant to an authorized national security investigation.  There is no warrant issued.  There is no court supervision. 

FBI Abuse

Within the Department of Justice, the Inspector General found several years ago that the FBI had been abusing its authority. It was issuing these letters without proper basis.

After 9/11 the FBI was issuing an average of 50,000 such letters a year.  In 2011 according to a March 16, 2013 article in The Washington Post, the Department of Justice issued 16,500 such letters on 7,200 different targets.

The court reviewing the issue decided that the gag order that goes with the letter creates too great a danger of speech being restricted.  Another judge in New York had several years ago reached the same result.

A law firm involved in this issue opined it would be best if Congress clarify the statute. The goal being to set forth exactly what sort of info may be obtained without court oversight.

Privacy Rights-DNA

The U.S. Supreme Court has also dealt with some DNA privacy issues that have put all 50 states and the District of Columbia in bed together. That is, all 50 states and Washington, DC actually agree on the policy. This policy is that of taking DNA samples from certain persons that are arrested for use in crime tracking.

The case involved an individual who was convicted of rape after a DNA match. The Maryland Court of Appeals overturned the conviction and the state law saying that it violated the Constitution’s protection against unreasonable searches. That DNA sample had been taken in conjunction with that person’s commission of another crime.

DNA Like Fingerprints

Those who argue against the use of these DNA samples claim an invasion of privacy. The Maryland statute allows for collection of DNA samples from those arrested for certain crimes. If the arrest does not lead to a conviction, then the sample is to be destroyed.

The more precise issue before the court is whether DNA collections are any different than fingerprinting. When a person is arrested, he is fingerprinted and photographed. Those fingerprints can then be used to match that person to other crimes.

There is no real difference between so-called “DNA fingerprinting” and the actual fingerprinting itself. Fingerprinting involves a technician physically rolling a person’s fingers on an ink pad. This is to collect fingerprints of all 10 fingers. That is a intrusive and cumbersome process.

DNA Less Invasive

On the other hand taking a DNA sample involves a swab from inside the person’s mouth. It is considerably less intrusive. It is less time-consuming. Also it involves less personal contact between technician and suspect. Certainly if there are issues as to privacy, then restrictions can be put on the use of these DNA samples. However using the DNA samples to determine whether or not this person may be involved in some other crime promotes public safety. Also it enhances the reach of law enforcement. In addition it involves minimal intrusion into anyone’s privacy. Call, or contact us for a free consult.

Privacy Rights-GPS Tracking

We all have some fear of living in a police state.  The potential for police surveillance over the years has been much enhanced through the use of cameras. Now Global-Positioning System devices are in use. These types of surveillance devices are especially effective in following and keeping track of the movements of drug dealers. 

In early 2012 the U. S. Supreme Court in United States v. Jones, 132 S. Ct. 945 decided that the attachment by police of a GPS tracking device to a vehicle and the use of that device was a “search”. A search in general is any police intrusion into an area where a citizen has a reasonable expectation of privacy. 

In that case the police did not have a warrant for the use of such GPS device. They tracked the vehicle for a total of 28 days. They then used that info to prosecute the individual for drug crimes. All nine Judges of the Court agreed that this violated Mr. Jones’ rights.

Call, or contact us for a free consult. For more information on privacy see the pages on Wikipedia and also see the pages on personal injury.

Contact Us For A Free Consultation

Contact Us For A Free Consultation