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My Troutman Sanders colleagues have written before on the continuing judicial wrangling over whether GPS tracking devices, as well as location data maintained by wireless telecom providers, require a warrant before search and seizure by the government. Last July, a New York state court ruled that a government employer did not need a warrant to attach a GPS device to an employee’s car and monitor his movements continuously for a month, contradicting an earlier decision by the New Jersey Supreme Court. More recently, the U.S. Court of Appeals for the Third Circuit held — after a thorough review of precedent dating all the way back to 1981 — that law enforcement agents must indeed first obtain a warrant based on probable cause to attach a GPS device to a criminal suspect’s vehicle.
Cases dealing with this issue merit watching because they represent the “front lines” of the intersection between personal privacy and technological capability. The Supreme Court in United States v. Jones, 131 S. Ct. 3064 (2011), decided that GPS tracking generally requires a warrant,  but left open the more important question whether warrantless use of GPS devices would be “reasonable — and thus lawful — under the Fourth Amendment where officers have reasonable suspicion, and indeed probable cause,” to execute such searches. Meanwhile, a divided Fifth Circuit Court ruled in 2013 that the government may compel a wireless company to turn over 60-days worth of cell phone location data without establishing probable cause, while just last week the Massachusetts Supreme Judicial Court held that people have a reasonable expectation of privacy in their phones and thus, under the state constitution, law enforcement needs a warrant before obtaining location data from a suspect’s wireless provider.
So what does all this mean for the business community? Although law enforcement and the rather esoteric realm of constitutional law has been at the front lines of GPS privacy, there are a number of developments indicating that location privacy is also an important business issue:
First, the Federal Trade Commission — which functions as the de facto privacy regulator in the United States — has launched an inquiry into GPS tracking with a seminar convened on February 19 in Washington, D.C. This followed an FTC staff report last year, titled Mobile Privacy Disclosures: Building Trust Through Transparency, which “recommended” that companies consider offering a Do Not Track (DNT) mechanism for smartphone users among other measures to protect location privacy. Since the FTC has authority over unfair trade practices, including privacy, in almost every industry other than telecommunications, this initiative portends a risk of administrative sanction for private businesses not offering consumer choice as part of location-based services.
Second, HTC and Samsung smartphones come pre-loaded with software from the company Carrier IQ. More than 100 lawsuits filed since 2011 in federal court claim the phones unlawfully track the keystrokes of text messages and Internet searches. While the company maintains that the data are collected for customer support and to help troubleshoot network problems, it has become embroiled in litigation despite serving only as a technology vendor to other, far larger firms. (Not to leave them out, both Microsoft and Apple have also been sued over the location tracking features of their phones.) The lesson of Carrier IQ is that businesses are at risk in the GPS space even where they are not consumer-facing enterprises.
Third, a number of start-ups (Turnstyle, RetailNext, Nomi, shopkick, etc.) offer brick-and-mortar retailers the ability to use indoor location sensors and security video feeds to track movements of shoppers, recreating in the retail realm the same in-depth data on customer behavior that online merchants have long collected. Some of these firms follow best-practices by obtaining explicit opt-in for location information sharing. But the potential for adverse consumer reaction, and class action litigation, remains high ever since Nordstroms was caught in a PR whirlwind in July and unilaterally discontinued its in-store location program after notifying shoppers they were being tracked.
Fourth, it matters not whether a company is actually in the business of commercializing GPS data. In December, the FTC settled with the makers of an Android flashlight app after the agency claimed the company’s privacy policy was deceiving users into sharing their location and personal information with third-party advertisers. So there is still legal exposure for location information collection even if a firm operates in a completely different space.
Legal maneuvering can, at least for now, offset some of these risks. Under the current rules governing consumer class actions, several courts have decreed that privacy injury is insufficiently direct and substantial economically to support standing or to qualify for class action certification in federal court. For instance, in a case challenging a mobile app’s collection of geo-location data without consent, Goodman v. HTC America, Inc., the Western District of Washington held that the putative class members had not sufficiently plead injury to have standing. The court accepted as cognizable injuries overpayment for phones (because the plaintiffs would have paid less if they knew their location was to be collected as alleged) and diminution in value of the phones because of reduced battery life caused by the collection of geo-location data. Still, the court concluded that the “assertion that defendants misappropriated their personal information is not a sufficiently particularized injury to support [plaintiffs’] standing.” Yet since this opinion, and others from similar cases, holds out the possibility that identity theft or other financial harm may in the future result from insecure information collection, the standing defense appears to be time-limited.
The 4th Amendment protects people only from overreaching by the government. That may have led some in the business community to conclude prematurely that GPS and location tracking are issues only of concern to hackers and criminal enterprises. As these four developments show, however, location privacy is a serious business issue too.
Note: Originally written for and reposted with permission of my law firm’s Information Intersection blog.
It is rare that the justices of the Supreme Court of the United States actually write or speak about technology. But as connectivity and user-generated content become more ubiquitous and pervasive, sometimes the Court — despite its inherent judicial conservatism — just can’t avoid touching on issues related to the use, importance and legal status of modern communications technologies.
In that respect, the just-completed 2009-10 and 2010-11 Supreme Court terms witnessed two rather impressive developments. First, while more than a year ago most of the justices, and especially Antonin Scalia, said they had never even heard of Twitter, 2010 saw the first-ever mention of blogs and “social media” in a Supreme Court opinion, namely the controversial Citizens United decision on corporate campaign spending.
Rapid changes in technology — and the creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.
Citizens United v. FEC, 130 S. Ct. 876, slip op. at 49 (2010) (emphasis added; citations omitted).
Second, in this spring’s ruling overturning California’s regulation of violent video game sales to minor children — a/k/a teenage gamers — a sharply divided Court grappled not with the previously undecided question of whether video games merit First Amendment protection (on which there was unanimity), but instead the far narrower one of how to show a “compelling state interest” in restricting speech directed to children. That led to a remarkable passage, from Scalia himself, which as is typical was relegated to a footnote (where the “good stuff” is often found):
Justice Alito accuses us of pronouncing that playing violent video games “is not different in ‘kind’” from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . ., they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).
Brown v. Entertainment Merchants Assn., slip op. at 9 n.4 (2011) (emphasis added).
So the lesson is that although Justice Scalia may not know how to Tweet, but he can spell perfectly the name of a classic martial arts videogame, while still believing that The Divine Comedy is of greater value to society. What would the modern, technophile generation think about that? We’ll probably never know, because those facile with the means for mobile and rapid communications have short attention spans and thus probably lack have the patience (interest aside) to read Dante, even the Cliff Notes version, and tell us!
You may not agree with the Supreme Court’s denial of standing to plaintiffs challenging an Arizona law giving tax credits for parochial schools, but the sentiment of limited judicial powers articulated by Justice Kennedy should resonate with folks from Tea Party members to liberal activists. Supreme Court Upholds Tax Break for Arizona Religious Schools | L.A. Times.
Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles.
Opinion at supremecourt.gov.
The outcry over federal judge Vaughn Walker’s decision overturning California’s Proposition 8 — which declared same-sex marriages unlawful — is hardly atypical where the Constitution is concerned. Why should a single judge, or nine (Supreme Court) judges, have the power to override the legitimate majority vote of citizens in a democracy?
The answer is that this is how it has always been in America. The constitutional checks and balances established by the Founding Fathers were intended to make the United States a republic; a political union in which the rights of those who are NOT in the majority are protected. That is why the Bill of Rights was added almost immediately after ratification of the Constitution. That is why the First Amendment protects the “free exercise” of religion from government control. Because in America, civil rights include the right not to be oppressed by the majority when essential liberties are concerned.
This is exactly how our constitutional democracy is supposed to work. Don’t blame federal judges for doing their jobs. The concept of judicial review has been at the core of our checks-and-balances democracy since the landmark Marbury vs. Madison ruling in 1803.
The Pro9 8 Decision—One Judge vs. 7 Million Voters? | SF Chronicle.
One can disagree with whether morality is a valid basis for legislation outlawing certain behavior. Constitutional law is split, with some decisions, like the 2003 case in which the Supreme Court overturned criminalization of consensual sodomy, indicating that moral values cannot trump individual rights. That rationale, of course, could also be extended to a variety of issues — from abortion to alcohol to public sex or nudity — in which only the sensibilities of others are affected.
The difference here is that, under the law as it stands now, legislation must have a secular purpose to survive constitutional challenge. The proponents of Prop 8 argued only that the initiative was intended to further society’s interest in procreation, that is child-bearing. But if that were the case, Judge Walker cogently explained, then fertility should be a precondition to traditional marriage, and couples unable to conceive or not wanting children would be barred from marrying. Not so long ago, interracial marriages were also unlawful. The outcry against the 1967 Supreme Court decision striking down such laws subsided rather quickly, and in my view that’s a good thing.
As if to prove Walker’s point, Los Angeles Cardinal Roger Mahony released a statement on Wednesday that said, “Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.”
Why the Prop 8 Rung Scares Religious Conservatives | NewsOK
200 years ago slavery was accepted and written into the Constitution. The Fourteenth Amendment changed all that after the Dred Scott decision declared that slaves were property and not citizens. It took a long and brutal civil war to make the leap, but America was and is better off. Whether or not you agree that gay marriage should be constitutionally protected, the system of judicial review is quintessentially American and something to be celebrated.
This is an ongoing issue with the American judiciary system. Judges are by institution isolated and by tradition older than the general population. Increasingly, however, they are called upon to rule on technologies with which they have no experience at all.
It does’t look like we’ll be seeing much Tweeting-from-the-bench on the Supreme Court any time soon, but the Hillicon Valley blog highlights an amusing moment at a recent House Judiciary subcommittee meeting, attended by two Supreme Court Justices — Antonin Scalia and Stephen Breyer in which they’re asked if they plan on using Twitter any time soon. Scalia says he doesn’t even know anything about it — and notes that his wife refers to him as “Mr. Clueless.” Reassuring to know that of a Supreme Court Justice. Breyer, however, seems to indicate a realization that Twitter, as a communication platform, really could be quite powerful.
Subcommittee Chair Steve Cohen: Have either of y’all ever consider tweeting or twitting?
Justice Scalia: I don’t even know what it is. To tell you the truth, I have heard it talked about. But, you know, my wife calls me Mr. Clueless — I don’t know about tweeting.
Justice Breyer: Well, I have no personal experience with that. I don’t even know how it works. But, remember when we had that disturbance in Iran? My son said, ‘Go look at this.’ And oh, my goodness. I mean, there were some Twitters, I called them, there were people there with photographs as it went on. And I sat there for two hours absolutely hypnotized. And I thought, ‘My goodness, this is now, for better or for worse, I think maybe for many respects for better, in that instance certainly, it’s not the same world. It’s instant and people react instantly… and there we are. It’s quite a difference there and it’s not something that’s going to go away.
Posted via web from glenn’s posterous
Well, it took a little bit of time, but the Administrative Office of the U.S. Courts has issued revised jury instructions, recommended for all federal cases, updated for today’s social media age. It’s “old wine in new bottles” — i.e., traditional rules adapted to new social networking communications — which illustrates that some things really should not (and do not) change at all where social media are concerned.
Federal Court Officials Issue Guidance on Jury Use of Blackberries, iPhones, Twitter, LinkedIn Etc. [TechLaw].
You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.
Last May I posted — in an article titled “Challenging DMCA Conventional Wisdom” — about a creative, but seemingly futile, effort by RealNetworks to plead its way around the Digital Millennium Copyright Act for yet another variant of DVD-ripping software. Well I missed the conclusion. In mid-August a federal court in San Jose (the Northern District of California) sided with the movie studios against Real, issuing a permanent injunction, and holding in a well-reasoned opinion in RealNetworks, Inc. v. DVD Copy Control Association, that Real had violated the DMCA.
So this is effectively the end of RealDVD. Calling the DMCA a series of “epochal amendments” to US copyright law, Judge Marilyn Hall Patel concluded that CSS technology “effectively controls access” despite having been hacked, finding that the statute is directed at preventing circumvention by the “average consumer,” and that Real’s CSS license was no protection because it had exceeded the scope of the license.
While it is true that no case has ever held that a licensee of the DVD [Copy Control Association] can be held liable for circumventing that same technology under the DMCA, that is simply because no court has ever adjudicated the issue. And, it may be that no licensee has been so bold as Real.
Perhaps the only amusing part of this rather sad escapade is the court’s observation that the RealDVD product was known internally as “Vegas,” because of the well-known marketing phrase “what happens in Vegas, stays in Vegas.” Secrets don’t hold up that well in Hollywood, on the other hand.
Tom O’Toole at BNA TechLaw writes that Supreme Court nominee Sonya Sotamayor is unlikely to have any substantial influence on the Court’s cyberlaw jurisprudence because there basically is none:
The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.
The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.
The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.
The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.
Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don’t think that obscure decision in any way undermines the point I am trying to make here.
He’s right, but I find that a plus, not a minus. The evolution of this rapidly changing medium really does not need the glacial pace at which the Supreme Court decides issues, and certainly benefits from the pull-and-tug among lower courts to strike the appropriate balances among regulation, civil rights, legislative power, law enforcement and the other technology policy matters affecting the Internet. When the Supreme Court speaks on tech issues — witness the Sony Betamax case from nearly 25 years ago or the Brand X decision from 2005 — it often leaves the law in a more polarized and confused state than before. So IMHO, we don’t need no stinkin’ badges from the Supremes.
The offense happened two years ago, but the consequences are only now becoming reality. Ex-Judge Disbarred for Using Penis Pump During Trials [ABA Journal]. The judge, who entertained himself while presiding over capital murder prosecutions, saw his pneumatic proceedings came to an end after a police officer heard the pump’s distinctive signature during a case, and photographed the device during a recess. This is not just what lawyers call a “crime involving moral turpitude,” it’s revolting. (Does it run in the profession? See Cross-Dressing Bankruptcy Judge Lands at Boston Law Firm [ABA Journal]). Humans are sexual beings, but there is indeed a time and a place for everything, including penis pumps. Just ask Austin Powers.
The story was about a significant constitutional case concerning private property rights and eminent domain before the U.S. Supreme Court. But buried in the text was the observation that with the absence of Chief Justice Rehnquist due to illness and another Justice (Stevens) missing due to a travel snafu, that “created an opportunity for Justice Sandra Day O’Connor, the most senior remaining justice, to become the first woman to preside over an oral argument at the court.”
The significance of this moment was its relative insignificance. Meaning that 20 some years after she became the first woman on the Supreme Court, O’Connor’s assumption of the presiding role at the Court was not treated as anything extraordinary. That illustrates the extraordinary social changes wrought by the women’s rights movement, which began with Betty Friedan and blossomed in the late 1970s. When I was in law school (1978-81), it was the first time that women made up nearly 50% of the student body. I remember celebrating Myra Bradwell Day, named after the first woman who was admitted to the bar as an American lawyer (after unsuccessfully appealing her initial denial to the U.S. Supreme Court) in 1870. Now it’s no big deal to have female lawyers, women judges and even women presiding at the Supreme Court. The same Supreme Court, mind you, that wrote about Bradwell, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many occupations of civil life….The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator.”
Holy revolution, Batman! John Riggins, of Washgington Redskins fame, once drunkenly quipped to O’Connor “Loosen up, Sandy baby.” I think it’s more appropriate, now, to say — like the old cigarette ad (or the newer Fatboy Slim CD) — “Sandy, you’ve come a long way, baby.”
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but left open the more important question whether warrantless use of GPS devices would be “reasonable — and thus lawful — under the Fourth Amendment where officers have reasonable suspicion, and indeed probable cause,” to execute such searches. Meanwhile, a divided Fifth Circuit Court ruled in 2013 that the government may compel a wireless company to turn over 60-days worth of cell phone location data without establishing probable cause, while just last week the Massachusetts Supreme Judicial Court held that people have a reasonable expectation of privacy in their phones and thus, under the state constitution, law enforcement needs a warrant before obtaining location data from a suspect’s wireless provider.
February 26th, 2014 | 
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