Privacy vs. public safety: prosecuting and defending criminal cases in the post-Snowden era.

• Author: Weinstein, Jason M.
• Position: Edward Snowden

1. INTRODUCTION II. PRIVACY VS. PUBLIC SAFETY--THE BATTLEGROUNDS A. Pushback from the Courts 1. Search Warrants for Seized Devices and Email Accounts 2. Searches of Cellphones Incident to Arrest 3. Use of Cell Tower Records 4. Cell Site Simulators R. Pushback from Providers 1. Apple and Google Adopt New Encryption Policies 2. Jurisdictional Challenges to Search Warrants 3. Less Cooperation, More Confrontation C. The Politics of Privacy on the Hill II. CHALLENGES FOR PROSECUTORS, OPPORTUNITIES FOR DEFENSE LAWYERS III. WHAT'S NEXT? IV. CONCLUSION I. INTRODUCTION

   Over the past several years, there have been signs that federal courts at all levels--from magistrates to the Supreme Court--are increasingly struggling with the privacy implications of evidence-gathering in the digital age. Judicial discomfort with certain law enforcement techniques was already simmering well before anyone ever heard of Edward Snowden, but it only intensified after the former NSA contractor leaked classified documents in June 2013 that revealed that the NSA was collecting bulk records regarding Americans' telephone calls from U.S. telecommunications providers pursuant to Section 215 of the USA Patriot Act as well as the content of and other data regarding Internet communications involving targets believed to be overseas from nine major Internet providers under Section 702 of the FIS A Amendments Act. (1)

   In the wake of Snowden's leaks, there was an explosion in coverage of digital privacy issues in the mainstream media. "Section 215," "FIS A Amendments Act," and PRISM quickly became household words. But the reporting quickly spread beyond articles about the intelligence community's collection practices, with prominent media outlets--and even The Colbert Report and The Daily Show--reporting on evidence-collection techniques used by law enforcement. The New York Times and Washington Post wrote about cell phone location tracking. (2) The Wall Street Journal published articles about the use of airplane-mounted devices to track cellphone signals. (3) These reports spoke to, and helped add fuel to, concerns among interest groups and a significant percentage of the public about perceived government abuses of privacy--often without making distinctions between different parts of "the government." (4)

   Much discussion of the Snowden leaks has centered on the legal, political, diplomatic, and economic fallout. There have been legal challenges to and bipartisan calls for the end of the Section 215 bulk collection program. Questions have been raised about the role of the congressional oversight committees and the FISA Court. Allies in Europe have complained about claimed invasions of their citizens'--or their leaders'--privacy. U.S. cloud providers and other tech companies have faced increasing challenges as foreign competitors seek to exploit the Snowden leaks to gain an advantage in overseas markets.

   But far less attention has been paid to the impact of the Snowden leaks on domestic criminal law enforcement. Snowden's revelations have contributed to an increasingly difficult environment for law enforcement agencies in the United States--in the courts, with Internet and telecommunications service providers, and on Capitol Hill.

   It is ironic, to say the least, that the backlash over the NSA's bulk collection practices would have such a profound impact on criminal law enforcement, which utilizes court-authorized legal process based on individualized suspicion to collect evidence--precisely the types of checks and balances the NSA's critics say were lacking in the Section 215 and PRISM programs. Indeed, as FBI Director James Comey noted in an October 2014 speech to the Brookings Institution,

   [i]n the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And unfortunately, the idea that the government has access to all communications at all times has extended--unfairly--to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals." (5) Nevertheless, the effects of Snowden's disclosures are felt in investigations of virtually every type of crime imaginable. Because criminals of all types use cell phones, mobile devices, and Internet-based means of communication more than ever, electronic evidence is now critical in prosecuting cases involving terrorism, espionage, violent crime, drug trafficking, kidnapping, computer hacking, sexual exploitation of children, organized crime, gangs, and white collar offenses. From emails and text messages to cell tower and GPS location information to social media message platforms to data stored on devices and in the cloud, evidence from the online world is increasingly critical to investigating and prosecuting all types of crimes in the "real world."

   The greatest impact for law enforcement has been felt in courtrooms and judges' chambers throughout the country, where prosecutors and agents face increased skepticism from judges and more aggressive challenges from defense lawyers regarding the use of longstanding and previously accepted techniques for collecting digital evidence.

   But law enforcement has also faced greater challenges behind the scenes, in dealing with telephone and Internet providers--including those who, after the attacks of September 11, 2001, had been more willing to assist law enforcement and national security in the name of public safety. The sense both domestically and abroad that service providers were either insufficiently protective of consumer data or unwilling to stand up to law enforcement has resulted in actions by those providers to distance themselves from law enforcement as never before.

   Law enforcement has felt the impact in Congress as well. The politics of privacy have shifted, turning traditional supporters into skeptics and traditional skeptics into outspoken critics. As a result, the Justice Department has faced increasing resistance to efforts to maintain, let alone address gaps in, its ability to gather electronic evidence.

   To be sure, not all of law enforcement agencies' struggles with judges, providers, and legislators are expressly attributable to the Snowden effect. But given the historical context, there can be little doubt that Snowden's leaks made an already difficult environment for law enforcement even more challenging.

   This article explores (1) how the changing judicial and political landscape has impacted the ability of law enforcement to use a number of different types of crucial investigative techniques; (2) how these shifting sands have resulted in peril for prosecutors but new opportunities for defense lawyers; and (3) what prosecutors and defense lawyers can expect on the horizon.

2. PRIVACY VS. PUBLIC SAFETY--THE BATTLEGROUNDS

   1. Pushback from the Courts

      Over the past two years, it has been impossible to escape coverage of the Snowden leaks and the dramatic revelations about the extent to which the NSA was collecting data regarding Americans. Judges read the papers and watch television like the rest of us, so it stands to reason that they followed the coverage too.

      But these issues were of more than just general interest to the bench. Judges' phone records were among those collected by the NSA, just like the rest of us. Judges also use laptops, and have tablets, and carry smartphones, just like the rest of us. As the Supreme Court observed in Riley v. California, 90% of American adults own a cell phone, and many of them "keep on their person a digital record of nearly every aspect of their lives." (6) This probably includes at least some of the Justices. Indeed, when Chief Justice Roberts described the functionality and capacity of a smart phone in that opinion, he did so with a familiarity that suggests that he has one in his pocket. As judges at all levels become adopters of technology, it is only natural that they, like ordinary citizens, would become more aware of and concerned about the potential privacy invasions that result from surveillance, search, and seizure in the digital era. As a Florida state judge declared during a hearing about the use of cell phone location information, "[w]hat right does law enforcement have to hide behind the rules and to listen in and take people's information like the NSA? ... Inhibiting law enforcement's rights are second to protecting mine!" (7) Although certainly colorful, this judge's comments may actually reflect a broader sentiment among members of the bench that digital privacy issues are important not just for their constitutional implications but for their practical impact on all of our lives.

      But whatever the cause, it is clear that judges are increasingly concerned about the use of digital evidence-gathering techniques by federal, state, and local law enforcement. That concern has manifested itself in new or more pointed debates over the use of a number of previously well-established investigative techniques.

      1. Search Warrants for Seized Devices and Email Accounts

         With its opinions in United States v. Comprehensive Drug Testing, Inc. (CDT), (8) the Ninth Circuit kicked off a national debate among judges and commentators about what, if any, special rules should govern searches of computers and other digital devices.

         Law enforcement officers have been obtaining and executing search warrants for computers for decades. But as computers and other digital devices have become more pervasive in our lives, and as the volume of personal information stored on them has expanded, courts have become increasingly uncomfortable with the use of that time-honored authority. For some courts, searches of digital devices present unique privacy challenges because of the sheer volume of personal information contained, for example, on a smartphone or laptop. These judges have imposed protocols and rules to constrain law enforcement agents in executing...