S.D.N.Y. Asks: Does Accessing Reddit Posts Exceed the Scope of a Cell Phone Search Warrant?

Last week Judge Roman Nelson issued a decision, United States v. Chukwuemeka Okparaeka, No. 17-CR-225 (NSR), 2018 U.S. Dist. LEXIS 112687 (S.D.N.Y. July 5, 2018), denying the Defendant's motion to suppress. The Defendant was charged with the distribution of narcotics. Police obtained a warrant to search his cell phone allowing for the search and seizure of ESI concerning the owner's identity; evidence concerning the identity and location of his co-conspirators; records (including calendar entries) regarding the alleged offenses; and photos and video regarding the offenses. The decision focused on the fact that the police searched the cellphone's internet browsing history which showed that he made incriminating posts on Reddit.

Judge Roman held that the magistrate judge correctly determined that the totality of circumstances indicated there was probable cause to search the cell phone. Packages containing controlled substances were seized in a random search at an airport that an investigation showed were to be picked up by the Defendant at a post office. The Defendant used his cell phone to call the post office in an effort to pick up the package, and also tracked the package using an app called Privnote.

The Defendant argued that the police exceeded the scope of the warrant by searching his internet browsing history. The Court disagreed, finding that information about the owners or users of the cell phone could be found in the internet history, such as social media posts, as well as information about the alleged offenses, such visits to the site of a bank. ". . . [R]eview of the cellphone's internet browsing history and any already opened webpages was squarely within the scope of the warrant. Internet browsing history and any opened webpages are electronically stored information that is readily available within the subject device and could reveal evidence concerning the identity of the owners or users of the subject device or any records related to the subject offense." Id. at 35. The search was focused on particularized information, and did not "wander aimlessly" in searching for data on the device.

Judge Roman also held that the good faith exception to the exclusionary rule applied because the average officer would not have known that the searches exceeded the scope of the warrant. "It is reasonable for a police officer to believe that evidence concerning the identity of the owners or users of the subject device as well as any records concerning the subject offense would be present in the internet browsing history." Id. at *36.

Judge Roman distinguished between web pages already opened on the cell phone, and information accessed through the cell phone. The motions presented to the court did not make clear if the search involved accessing Reddit posts not already opened on the device. The Court ordered additional briefing on one question: "whether accessing unopened Reddit posts through Defendant's phone constituted a search of ESI within the scope of the search warrant." Id. at *38.

FTC Report on Cross Device Tracking

In January 2017. the Federal Trade Commission issued on report on Cross-Device Tracking. Cross-device tracking monitors a user's activity on separate platforms (cell phones, desktops, tablets, etc.). Data gleaned from this process is often combined with information about purchases at stores to send targeted ads to individuals. 'Onboarding' is the compiling of online and offline data to create detailed profiles of individual consumers.

The report was prepared by FTC staff members who participated in a workshop on Cross-Device Tracking. One of their chief areas of concern is the invisibility of data collection. Trade associations, the Network Advertising Initiative, and the Digital Advertising Alliance require their members to allow consumers to opt out of 'behavioral advertising'.

A decade ago cookies were the primary means of tracking consumers' activities online. More recently, browser history sniffing has been utilized.

Cross-device tracking can determine where an individual lives and works, and the specific devices they use, by detecting that a smartphone uses the same IP address as a desktop computer during the day, and the same IP address as a home laptop during the evening. "Additionally, a company might infer that a work smartphone and personal smartphone that visit the same unusual combination of websites belong to the same user." See page 3. Tracking can be conducted even if an individual never logs into an account.

The FTC's workshop tested two devices that it used to visit 100 web sites. Companies that conduct cross-device tracking were embedded in 87 of the 100 sites. "Of the one hundred privacy policies reviewed, staff found only three policies that explicitly mentioned enabling third-party cross-device tracking on their site." See page 8. Data brokers can obtain consumer's personal information without having had any direct contact with them.

The FTC recommends that if a consumer opts out of data collection for behavioral advertising on one device, data from that device should not be used for ads on other devices, and data from other devices should be used for ads directed to the opted out device.

New Jersey Supreme Court Decision: Hot Pursuit with Find My iPhone

Today the Supreme Court of New Jersey issued a decision, State of New Jersey in the Interest of J.A., A-38-16 077383, 2018 N.J. LEXIS 713 (N.J. June 6, 2018), ruling on the admissibility of evidence procured after the warrantless entry by police into a suspect's home. This case concerns the use of Apple's "Find My iPhone" to recover the theft of a smartphone.

After a man's iPhone was stolen by a man who assaulted him at a bus stop, the police were able to determine that the phone was inside a home. Minutes after the phone's location was pinpointed it was powered down. After knocking, the police entered the home through an unlocked window on the ground floor. After conducting their own search, the police were unable to find the phone but the suspect’s brother, acting on his own initiative, located it and their mother subsequently gave the police written permission to search.

The Supreme Court overruled the Appellate Division and found that neither exigency nor the hot pursuit doctrine justified the officers’ warrantless entry into the home. It did however find that the brother's location of the stolen smartphone was non-state action. It was attenuated from the unlawful search, and did not require the Court to invoke the exclusionary rule.

The Appellate Division found that, "immediate action was required because once the phone was turned off, it could be moved and the GPS capabilities would not function.", d. at 16, and also determined that there was a danger the phone might be destroyed. The Supreme Court ruled that exigent circumstances did not exist because the police did not have any reason to believe the suspect would harm anyone inside the home or the officers, or destroy the iPhone. "While it is possible that defendant powered down the phone so that he could not be as easily traced, deactivating a tracking device on an electronic piece of evidence simply reduces the trackable evidence to an average piece of evidence; the mere presence of evidence in a home does not alone justify a warrantless entry." Id. at 29.