The advancement of cellular and computer technology evolves and changes every day. Unfortunately, California and federal laws are scrambling to keep up the pace.
People are now able to access more complete and accurate information than ever before. A component to this new-age, voyeuristic, Twitter and social networking era, is that people are now able to access private information about you or your activities even without your permission.
We are seeing information obtained from cell phones and computers being used more and more in both criminal and civil cases, as well as by private individuals and suspicious mates.
Some instances in which this information is deemed legally helpful are:
- In criminal cases to establish a defendants whereabouts or to provide alibi information.
- To establish ongoing communication between parties (contract disputes, harassment matters, etc).
- As a record of particular websites or services being accessed.
- As a personal diary of events or activities which can be used in both criminal and civil cases.
- In civil cases to establish extra marital relations in states where a jilted spouse has a cause of action against the other man/woman for alienation of affection or loss of consortium.
- Valid consent of user - When electronic communication is facilitated via work computers or company issued cell phones the user/employee is deemed to have consented to a search by their employer, who is the owner of the computer or cellular equipment. Most employees are provided with clear guidelines as to what can and cannot be done on company electronic devices. Therefore, if one uses a company computer they are in essence consenting to a search by their employer without warning or provocation.
- Search incident to arrest - Sometimes a cell phone can be searched at the same time as an arrest is made, much the same as a weapons search, however it is best and most reasonable for the arresting agency to simply collect the phone for safe keeping and wait until they are able to obtain a properly executed search warrant.
- Stored communications Act - Relaxes the individual's 4th amendment right to be secure in their persons, homes and papers by allowing the entity which stores an individual's electronic records (cell/internet carriers) to turn such records over when presented with a valid subpoena or court order from a government agency.
Data brokers/private investigators: Often obtain private phone record information in one of three ways:
- Paying a cell phone company insider to obtain the information illegally.
- "Pre-texting" in which the data broker or investigator pretends to be the cell phone account holder and persuades the carrier's employees to release the information.
- Setting up an online account using the subscribers social security number or other personal information, and accessing the data there.
- Forensic and data recovery devices: Individuals purchase products which read and copy SIM card information from a telephone for which they are not the registered owner, thus accessing text messages, email messages, or other data without the owner's consent.
- Computer Spyware or remote tracking devices downloaded onto computers or affixed to vehicles for which the information gatherer is not the registered owner. This behavior can sometimes fall under the stalking category.
- Reliability of records - In a criminal case it must be proven that the records are authentic and reliable in terms of identifying the sender by actual name, screen name, telephone number or anything else which will lead the court to find that the records are reliable. The standard of what constitutes authenticity varies in different jurisdictions.
- Legally obtained - There must be either a valid search warrant based on probable cause used to obtain the records, actual or presumed consent of the record holder, or a subpoena or court order presented under the Stored Communications Act.
The most important thing is to remember that information transmitted electronically can last for decades and often comes back to bite you. As long as you are communicating electronically with another party you are opening yourself up to the possibility that your words, photos and online associations can come back to haunt you.
There should be no expectation of privacy when using your employer's electronic communication systems and be aware that employers are now installing software which will flag the IT dept or raise an alert the moment sexually explicit content or language is used on the company network. Typing on a computer or texting can be even more dangerous than putting something in writing because at least a written document can be shredded or burned. Not the case, however, in this new age of high tech, cyber communication.