NEW ORLEANS, LA — If you’ve been involved in a lawsuit, it’s likely that your opponent requested or obtained your cellular phone data. Plaintiff and defense attorneys both seek cellular phone data during the discovery period of your case, especially following a car accident. The most basic reason to access a driver’s cellular records is to help determine if he or she was distracted at the time of the accident, perhaps illegally texting and driving. This can help a fair and just resolution of a motor vehicle claim.
However, modern cellular phones are more accurately considered personal computers. If a law firm obtains full or even partial access to your cellular phone, they won’t just be able to determine if you were texting while driving. They could also potentially obtain such personal information as what medications you take, what internet sites you visit including dating sites, or your political or religious affiliations. The potential for an inappropriate and unnecessary invasion of a client’s privacy is such a serious concern that courts must consider the benefits of granting an adversary access to a citizen’s cellular phone, even in criminal cases.
The decision of one criminal case heard before the United States Supreme Court, Riley v. California has had strong implications for civil discovery. In Riley, the Court considered whether or not police could perform a warrantless search of a cell phone found in the pocket of an arrested person. Chief Justice Roberts, delivering the opinion for the Court, noted that “The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” The Supreme Court decided that the potential violation of privacy as well as the broad scope of information contained within a cell phone’s “immense storage capacity” took precedence over all other concerns.
Almost immediately after this decision in a criminal matter, Riley was cited in opposition to civil discovery requests. A federal district court in Connecticut denied plaintiff’s request for data from defendants’ cellular phones in Bakhit v. Safety Marking, Inc, et al, stating in part that “The implication of the individual defendants’ privacy interests in the data stored on their cell phones also persuades the Court to deny plaintiffs’ motion. This conclusion is further reinforced by the recent Supreme Court ruling in Riley v. California, Nos. 13-132 and 13-212, 573 U.S. __ (June25, 2014), which recognized, albeit in the criminal context, the privacy concerns implicated by the modern cell phone.”
As technology continues to advance, lawmakers must endeavor to keep pace with new developments and consider the ethical obligations that new technology—whether it be cellular phone storage or genome sequencing—impose upon our society. In 1816, Thomas Jefferson warned that “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
If you’re involved in a motor vehicle accident or otherwise considering or involved in civil litigation, it’s critical that you select a law firm that takes the advance of technology and the legal challenges it prevents as seriously as it takes the defense of your rights. The experienced attorneys at The de Boisblanc Law Firm understand today’s technological advances, and know how to use technology to your advantage without allowing your adversary to infringe on your privacy and rights.
NEW ORLEANS, LA — Mayor Latoya Cantrell made news by pledging to remove twenty cameras in New Orleans, in line with her campaign promises to suspend the universally hated program. However, even though more than 70% of the voting public is against traffic cameras it appears the enforcement tool isn’t going away any time soon.
In some cities, protests against traffic cameras have turned into illegal action on the part of disgruntled motorists, such as Stephen Ruth of Long Island, NY, dubbed the “Red Light Robin Hood” by his community, who was arrested for sabotaging numerous cameras. In a strange turn of events, Mr. Ruth’s actions led to an interesting discovery: in his Suffolk County community, yellow lights where there are no traffic cameras last for five seconds, but where there are traffic cameras, yellow lights only last three seconds. Around the country, residents of other cities have discovered the coincidental correlation between the installation of red light cameras and shortened yellow light durations.
Numerous studies show that increased yellow light times reduce violations and create safer streets. Longer yellow light times also reduce revenue generated from traffic camera tickets.
Proponents of traffic cameras argue that they increase safety. New research from Case Western Reserve University suggests otherwise, stating in part that motorists shift their driving patterns. “Once drivers knew about the cameras, they appeared to accept a higher accident risk from slamming on their brakes at yellow lights to avoid an expensive traffic citation—thereby decreasing safety for themselves and other drivers,” said Justin Gallagher, an assistant professor of economics at Weatherhead School of Management at Case Western Reserve, and co-author of the paper recently published to Social Science Research Network.
It’s well known that most citizens hate the cameras and don’t want them. What is less clear, is whether or not the cameras are constitutional. The Sixth Amendment’s Confrontation Clause states that citizens have the right to confront their accuser. In the case of traffic cameras, the accuser is a machine managed by a technician with whatever company is running the cameras. In some municipalities, a technician’s report is read to the court by a police officer who was not present to witness the alleged violation. When accused persons raised concerns as to the calibration and reliability of the machine that “caught” their violation, a certificate was often presented in court, and all parties were expected to believe in the authenticity and accuracy of that certificate. In Melendez-Diaz v. Massachusetts, the United States Supreme Court ruled 5-4 that “merely producing such a certificate in court is insufficient. Defendants have the right to cross-examine any individual who claims to have certified evidence.”
However, municipalities that make traffic camera tickets civil violations avoid having their traffic camera programs challenged on a constitutional basis. In New Orleans, these fines are considered “Civil Penalties,” and if unpaid, will be sent to a collection agency. A citizen may contest the ticket by requesting a hearing.
Whether or not the traffic camera ticket programs will survive their many deficiencies, and concerns about their constitutionality, remains to be seen. For now, motorists are all but united in their dislike for these programs, and New Orleans residents look forward to further action from Mayor Cantrell to reduce and remove this unpopular program.
NEW ORLEANS, LA — The safety of the personal information we share online comes under question yet again in the aftermath of a cyberattack which targeted the profiles of fifty million Facebook users.
In this instance, hackers exploited a vulnerability in Facebook’s ‘view as’ feature, which allows users to view their profiles as another account would. Through manipulation of this feature, hackers were able to access profiles, and potentially, information from the apps that users signed onto using their Facebook login. To date, Facebook has not stated that they know the identity of the hackers, or what the purpose of the attack might have been.
This is only the most recent Facebook scandal. In the lead-up to the 2016 presidential election, the firm Cambridge Analytica legally acquired data from up to 87 million Facebook users, in order to analyze their personal and political preferences.
By developing an app known as ‘This is Your Digital Life’, agents of Cambridge Analytica accessed data when users downloaded the app in order to participate in quizzes and other time-passers, thereby linking the app to their account. However, users were never informed that their data would be taken and analyzed for political purposes.
At its most basic level, social media sites like Facebook create a clearinghouse for our valuable personal data, which is then “mined and measured, sorted and sold.”
We willingly share this information, because we enjoy networking with others, and because of the convenience in-app purchases. But whether this data is then stolen, or simply sold to marketing firms or behavioral researchers, has Facebook done enough to make users aware of how extensively personal data shared to Facebook is harvested, sold, analyzed, and even potentially stolen by, a wide variety of third parties?
In 2011 Facebook entered into a consent decree with the FTC, which had specifically accused Facebook of deceiving users with regards to the privacy of their data. However, two of the federal officials who helped craft the consent decree now feel that Facebook might have violated it, due to the Cambridge Analytica scandal. So far, the FTC has made no comment regarding any violation, but the potential for another investigation cannot be ruled out.
Indeed, it seems only a matter of time before another privacy-related scandal occurs. The entire business model of Facebook, whose ‘free service’ ran up an operating cost of $3.28 billion in the fourth quarter of 2016, is to gather personal data from individuals around the world, then sell that data to interested parties. And while Facebook and other social media sites don’t do much to alert the user to this fact, they do design their program in such a way that sharing personal information, whether it be lifestyle choices or political leanings, is rewarding, and studies say, even addictive. There is a clear incentive for any company to encourage users to share as much data as possible; it’s just as easy to see that if users were warned before sharing that their data would be sold, analyzed, and exploited, and that the act of sharing itself was potentially addictive, then social media giants like Facebook might find themselves with a rapidly shrinking number of profitable users.
The law has yet to fully consider all of the complex issues potentially involved social media platforms. In the meanwhile, users of social media should fully consider just how large their audience actually is, before they share or like that post.