Can a court order a defendant to enter his iPhone passcode?

On Monday, the Appeals Court of Massachusetts issued a decision, In the Matter of a Grand Jury Investigation, No. 16-P-215, 2017 Mass. App. LEXIS 158 (Mass. App. Ct. Dec. 11. 2017), in which it affirmed a decision of a lower court holding a defendant in contempt for failing to enter his passcode into his iPhone. This decision comes on the heels of the decision by the Pennsylvania Superior Court in Commonwealth v. Davis, 2017 Pa. Super. LEXIS 968 (Pa. Super. Ct. Nov. 30, 2017) to affirm the granting of a motion to compel a criminal defendant to provide the password for his TrueCrypt encrypted computer. See the Tip of the Night for November 30, 2017.

The grand jury investigation concerned an alleged assault and battery on two children. A court issued a warrant authorizing a search of the contents of his iPhone. As in Davis, a key question was whether or not providing the passcode could be considered a testimonial statement for the purposes of the Fifth Amendment. Judge Amy Blake cited the same test for the foregone conclusion exception to the Fifth Amendment used in Davis, which was given by the Supreme Court of the United States in, Fisher v. United States, 425 U.S. 391 (1976). There will be an exception if the evidence provided adds little or nothing to the sum total of the government's information, and:

1. the existence of the evidence demanded has been proven;

2. the defendant is in possession of the evidence; and

3. the authenticity of the evidence has been established.

The Appeals Court found the government met this test because it demonstrated knowledge of the defendant's ownership and control of the iPhone; the fact that it was encrypted and that a passcode existed; and crucially - just as in the Davis case - because it knew the iPhone contained files relevant to the assault and battery investigation. An affidavit was submitted supporting the search warrant gave probable cause that the iPhone held evidence regarding the alleged assault and battery.

Carpenter v. United States - Oral Argument Before the Supreme Court on Cell Phone Tracking

This week a transcript (and audio) was posted of an oral argument before the Supreme Court in Carpenter v. United States, No. 16-402 (U.S.), a case in which the court is to decide whether the warrantless seizure of cell phone data to track the location of a defendant violates the Fourth Amendment. The decision of the Sixth Circuit was that 'cell-site data' did not constitute the content of communications which the Fourth Amendment protects. The data was collected from a service provider, not Carpenter, and so it did not constitute a search.

Nathan F. Wessler presented the argument for the petitioner, and Michael R. Dreeben spoke for the respondent. The petitioner argued that the collection of 127 days of data on Carpenter's location was a search.

Petitioner proposed a 24 hour period as limit on how much information the government could collect on a particular individuals' whereabouts. Justice Sotomayor questioned whether or not police could get a tower dump of a cell site in order to see who was in the area at the time of a robbery - collecting all call data from multiple users at moment in time. The petitioner thought that would be acceptable. (H'rg Tr. at 8).

Justice Sotomayor suggested that the Court's prior decision preventing the government from touching someone's bag, even though it was exposed in public, was analogous to this case because someone neither had the expectation that their bag would be touched, nor the expectation that their location could be tracked over 127 days even though they might believe their location at any one moment could be ascertained. (Id. at 23-24) Wessler noted that a survey indicated that most Americans don't believe that service providers can access the information on their phones, much less be retained by the providers. (Id. at 17).

The facts of this particular case may effect the decision the court reaches. The MetroPCS contract for the petitioner's cell phone account stated that the customer's information could be disclosed to the government if a request was made pursuant to a court order. (iI. 16-17). The cell phone records at issue in this case date from 2010 - 2011. Wessler made much of the fact that current smart phones make possible the collection of far more extensive location data:

" . . . in the intervening seven years, the data has become markedly more precise. The proliferation of small cells which can have a broadcast radius as small as 10 meters, just skyrocketing amount of data usage by normal smartphone users means that even the large traditional cell towers are much closer together in urban and dense suburban areas, so the distance between them is less, so they are significantly -- the location information is more precise." (Id. at 29-30)

Justice Gorsuch brought up the E911 program, a government regulation, that requires service providers to track cell phone locations in real time - but does not require them to retain the information. (Id. at 30).

Speaking for the respondent, Dreeben made a distinction between GPS information obtained from a phone and the acquisition of cell site information received from a business. He said that, "The expectations of privacy about the contents of one-to-one communication or a many-to-many communication are quite different." (Id. at 44) He distinguished between routing information and content information. Dreeben further thought there was a distinction between getting information from an individual and requesting that a business serve as a witness for the government - there was no direct government searching activity in Carpenter (Id. at 68).

Justice Kagan wondered whether or not there was a difference between this case and the decision in United States v. Jones, 132 S.Ct. 945 (2012), in which it was ruled that attaching a GPS device to a car was a search under the Fourth Amendment. Justice Kagan found the cases similar in that they both concerned a new technology that allowed for 24/7 tracking and changed people's expectations of how they could be monitored. (Id. at 47).

Under further questioning by Justice Kagan, Dreeben conceded that a request to a cell phone company for lifetime information for a particular customer would be highly questionable under the Constitution. (Id. at 73-75).

Webinar - E-Discovery Judges Get Candid: A Practical Conversation

On Friday, E-Discovery Day, I participated in a webinar hosted by Bloomberg Law. This webinar is worth paying attention to, because the opinions of three federal judges, Michelle Childs of the District of South Carolina; David Waxse of the District of Kansas; and Joy Conti of the District of the Western District of Pennsylvania were featured. Here are some of the highlights from E-Discovery Judges Get Candid.

According to Judge Childs, the need to preserve new data types such as data from mobile devices is just as important as the duty to preserve any other type of data. It must be done as soon as a party realizes such data may be relevant in litigation and should be included in litigation notices.

Judge Conti said that litigants should identify what types of evidence should be at issue in the case early on. Email and text messages are still the most prevalent types of data. According to her understanding when data is stored in the cloud, there is not as much ability to refine searches. She also noted experiencing cases in which it was found that certain kinds of data were not kept for longer than 30 days. Parties must have a concrete way to demonstrate that that requests are not proportional such as a cost estimate of some kind.

The host Mike Hamilton polled the judges about how often counsel appearing before them had metrics on the proportional burden of preservation costs. Judge Conti believed that over preservation was still taking place and the parties were not preparing such metrics. Judge Childs has not seen much factual information presented on the costs of a case whether in the form of expert affidavits or affidavits from the custodians for the electronically stored information. Judge Waxse recommends to parties that they reach an agreement on what will be preserved at the beginning of the case. He also suggests that parties create a single database for the litigation, rather than preserving data in different locations. Data should only be preserved if it is related to the contested issues in the case. If there is no disagreement between the parties on particular issues, the data relating to those issues does not have to be preserved. Judge Waxse recounted a recent case before him concerning employment law. The defendants filed a motion for a protective order, which was supported by an affidavit from an HR person stating that preservation and collection of the data would cost $30 million. Judge Waxse ordered a hearing to determine whether or not the cost would really be this high. Before the hearing could take place the defendants filed an amended motion stating that the cost of preservation and collection would only be $3 million. When the hearing took place it became clear that the parties had made no effort to resolve the issues among themselves. He stopped the hearing and ordered the parties to spend additional time conferring. The parties came back, and said that after conducting some sampling and staging data, they determined the preservation and collection would cost thousands and not millions. They agreed to to proceed without the court's involvement.

Judge Conti noted that in her court she makes clear the parties have the option of appointing an electronic discovery master. She finds that in small commercial disputes, discovery about social media may not be necessary.

Judge Childs observed that the purpose of discovery is give a party what they need, not what they want.

Judge Waxse described how he had actually served as a special master and noted the success of using one database for all the parties' data. It turned out to be a great cost saver.

Bloomberg presented the results of a poll of attorneys on whether they would rather violate the new EU General Data Protection Regulation and face a $5 million fine, or break American discovery rules and face unknown sanctions. More than 40% of respondents would be inclined to violate the GDPR.

A second poll was conducted on the use of TAR for document review, and showed only small majority in favor of TAR.

Judge Waxse noted that research has been really clear that the worst method of document review is manual review by attorneys. It doesn't make any sense to insist on having a person review documents when dealing with large amounts of ESI. He criticized attorneys for incurring unnecessary costs and taking unnecessary risks by refusing to use Technology Assisted Review.

Judge Conti is always disappointed when parties come before her and dispute proportionality issues and have not discussed using TAR. She has been disappointed to see that TAR is not being used as widely as it should be. She has seen many cases in which it has lowered the overall costs. She has seen the TAR software get better and become more affordable.

Mike Hamilton asked the judges if they thought that outside counsel always followed the directions of their clients - or the in-house counsel. Judge Waxse said that he saw many problems arise when attorneys did not communicate effectively with their clients. He recalled a presentation which took place during the Duke conference, in which he was trying to emphasize the importance of attorneys cooperating. A general counsel remarked to him that very aggressive attorneys were hired to handle big litigation and it was difficult to get them to cooperate. Judge Waxse encouraged the general counsel to give explicit instructions to cooperate to outside counsel.

Judge Conti has seen more push back from in-house counsel in recent years, in resisting the outside counsel's advise on how to handle discovery. But she has also seen in-house counsel let self-collection get out of hand. Individual employees may delete emails which are damaging even if they are under instructions not to do so. Judge Conti recommended collecting mobile devices and securing computer data at the outset of the litigation.

Judge Waxse said that outside counsel was responsible for ensuring that their client, or in-house counsel, were conducting discovery in a defensible and in accordance with the FRCP. He sees in too many cases in which in-house and outside counsel are not aware of each others activities. Rule 26(g) mandates sanctions when a reasonable determination has not been made that the produced factual information is correct.

Judge Childs said that outside counsel had to have a basic competency in electronic discovery issues. She recently read a decision in which a judge sanctioned outside counsel because they had very little information on the electronic discovery issues and could not respond to questions from the court on them.

Judge Conti noted that under FRCP 34(b)(2)(b) parties could be sanctioned for making boilerplate objections. Judge Childs has found parties not taking advantage of initial case management to resolve cases early on. She found too many parties making boilerplate objections which were made just on the basis of requests not being proportional. Judge Waxse has noticed too many lawyers that have not paid any attention to the 2015 amendments to the FRCP. He said that form responses may violate FRCP 26(g) if they aren't specific to the case.

Judge Waxse noted that he sometimes has parties participate in what he called Mancia hearings after Judge Grimm's decision in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008). In some of the big cases that have come before him, he has told the parties to have a conference before the initial hearing and admonishes the parties that he has the right to sanction them under FRCP 26(g). He gives them a copy of Judge Grimm's opinion in Mancia and tells them that he views both of their requests and responses as being in violation of FRCP 26(g), and that he many begin the sanctions with a $1000 fine. He then gives them a chance to resolve their issues in the courtroom where he leaves on audio and video recording devices. In every instance that he has done this, the parties have worked out their disputes and he has not had to rule on anything.

Judge Waxse said that he agreed with Judge Peck that the failure to use a FRE 502(d) order may constitute malpractice. It is almost malpractice per se when a privileged document has been sent to an opposing party without a FRE 502(d) order in place. He sees many lawyers which don't understand the rule change.

Judge Conti noted that her court has revised the Rule 26(f) form that the parries submit to the court. It includes a box to check off to have the default FRE 502(d) order entered. Since this was implemented, in 99% of cases the parties have chose to use the FRE 502(d) order. However she still sees parties conducting overly extensive privilege reviews which become very costly.

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