Individuals Do Not Have Expectation of Privacy in Historical Cellphone Location

Under the third-party doctrine, a person’s historical cell phone location is admissible in court because there is no reasonable expectation of privacy in that information

State v. Jenkins, 2016 BL 294061, Neb., No. S-14-1087, 9/9/16.

The Nebraska Supreme Court ruled that law enforcement did not violate the federal or state constitution by using the historical cell location of a woman who was arrested and later convicted. They argued, using the third party doctrine, that the woman did not have a reasonable expectation of privacy in her location because she freely conveyed that information to her phone company. The police used her location from her cell records to tie her to a double-murder crime scene.

The supreme court, following, Smith v. Maryland, found that when a customer uses their phone, they assume the risk that the company will reveal certain information under the third-party doctrine. The court stated, “Each time she sent or received a call or text message, her cellular service provider generated a record which included the date and time of the communication and the sector and cell tower sites used to route the communication.” The court found that the information became a business record, saying, “This historical CSLI was recorded and kept by the cellular service provider in the ordinary course of business.”

The court rejected the defendant’s argument that the cell phone location data should be treated like a regular GPS tracking device for purposes of the Fourth Amendment because the case did not involve “tracking” and was not conducted by the government. “The fact that the business records in Smith showed exactly where the caller was (in his home) at the time the calls were placed did not preclude the Court from applying the third-party doctrine and concluding he had no reasonable expectation of privacy in the telephone records.”

https://www.bloomberglaw.com/public/desktop/document/State_v_Jenkins_294_Neb_684_2016_Court_Opinion?1475083414

Conversations from Facebook Admissible in Child Pornography Case

“Facebook Chat” messages are admissible in court when they are properly authenticated using extrinsic evidence

United States v. Browne, 2016 BL 276680, 3d Cir., No. 14-1798, 8/25/16.

   The Third Circuit held that messages from “Facebook Chat” are admissible in court when they are authenticated using extrinsic evidence. The government at trial argued that the evidence was self-authenticating under the “business records” rule under the Federal Rules of Evidence 902(11). Although the messages were later certified by a “Facebook records custodian,” the business records exception could not apply because Facebook did not “purport to verify or rely on the substantive contents of the communications in the course of its business.” Instead, the records expert could only testify to the accuracy of the Facebook accounts at a particular time, not to the content of the messages.

   Although the business records exception did not apply, extrinsic evidence presented in court was “more than sufficient extrinsic evidence to link” the defendant to the explicit messages.

http://www.bloomberglaw.com/public/document/United_States_v_Browne_No_141798_2016_BL_276680_3d_Cir_Aug_25_201.