Law Enforcement Agencies Push Cell Phone Providers to Store Text Messages

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.

The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.

The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.

Source: “Cops to Congress: We need logs of Americans' text messages,” by Declan McCullagh, published at CNET.com.

TN Judicial Ethics Committee Issues Advisory to Judges on Social Media

The Tennessee Judicial Ethics Committee recently released an advisory opinion regarding judges and proper social media etiquette, something that legal experts have seen land judges across the country in controversy recently. In an attempt to avoid some of the same problems in Tennessee, the Committee is attempting to convey how important it is for judges to choose their online “friends” wisely.

Just last year a judge a Philadelphia was under scrutiny after prosecutors discovered he was friends with a man whose drunk driving case was before him. The judge threw out several key parts of his case. In North Carolina, another judge was reprimanded after he became friends with an attorney who was representing one of the parties in a divorce case in his court. The judge went so far apparently as to discuss details of the case with the attorney, including a possible affair by one of the parties.

To date no such situations have been reported in Tennessee, but many believe that with the ubiquitous nature of social media a conflict will eventually arise. Others think that an unscrupulous lawyer with time on their hands could do some digging in an attempt to get a judge thrown off of a case even under innocent circumstances.

The advisory opinion says the biggest impact will be on new judges who may have to ‘de-friend’ some lawyers or parties they were already friends with who might pose problems down the road. Anyone who may appear in their court one day cannot be seen as having special sway with the judge, according to the opinion.

The impetus behind the advisory opinion was a question from a lawyer who as a new judge wondered if he had to de-friend his existing lawyer friends. The answer, according to the Ethics Committee, is no--though it could potentially be problematic. The opinion says that judges should of course avoid sharing any sensitive information or discussing cases, but using social media as a means of keeping in touch with friends and sharing family updates shouldn’t be a problem.

Tennessee joins the ranks of many other states that have addressed the issue by not an outright ban of social media for judges. There are some states, for example Florida, that have banned judges from being e-friends with lawyers who appear in their courtrooms.

The Ethics Committee concludes that while judges are allowed to participate in social media, they should use caution when doing so. Any judge must also expect that their use of social media will be scrutinized by others and thus “must be constantly aware of ethical implications as they participate in social media and whether disclosure must be made.”

Read: “In social media, judges and 'friends' don't always mix,” by Lawrence Buser, published at CommercialAppeal.com.

See Our Related Blog Posts:
Tennessee Supreme Court launches new website--JusticeForAllTN.com
Tennessee legislators celebrate Independence Day with 151 new laws set to take effect on July 1st

Tennessee Supreme Court launches new website--JusticeForAllTN.com

The Tennessee Supreme Court launched a new website this week to provide the public with resources to help navigate the court system. The new site, JusticeForAllTN.com, is intended to assist people with civil legal issues who cannot afford legal representation. A pro bono or self help web site is how one attorney I spoke to referred to the web site.

The Justice for All website includes downloadable court forms, resources for representing yourself in court, information about common legal issues and an interactive map with resources for each of the state’s 95 counties. Thanks to a partnership with the Tennessee Alliance for Legal Services and the Tennessee Bar Association, the site also gives visitors the ability to email a volunteer attorney with questions.

“We view the Justice For All website as a clearinghouse of information and legal resources for Tennesseans facing civil legal issues without the assistance of an attorney,” said Tennessee Supreme Court Chief Justice Cornelia A. Clark. “We hope this site can make the legal system more accessible for all Tennesseans, regardless of income level.”

The Justice For All website also features a dedicated section for attorneys, business leaders and community members who wish to offer their assistance to the access to justice effort. This section of the site includes tools for attorneys to create their own pro bono clinic and links to various volunteer opportunities with legal aid organizations and bar associations across the state.

“Attorneys and community members are valuable partners in our efforts to improve access to justice in Tennessee,” Clark said. “We hope this site provides them with the tools and resources they need to continue the great work they are doing to offer pro bono assistance in their communities.”

Earlier this year, the Tennessee Court system also launched a redesigned version of its website, TNCourts.gov, to provide improved access to court information. The redesigned site features an interactive map of court contact information for each for the 95 counties in the state, an enhanced appellate court opinion search, a c  alendar with appellate court dockets and a robust site-wide search. The site also allows visitors to sign up to receive appellate court opinions or news releases through an RSS feed or via email.

Visitors can also sign up to follow the Court system on Twitter to receive updates about court opinions and other court news throughout the state. Tennessee was of the first court systems in the country to start using Twitter more than two years ago. More than 2,000 people currently receive updates from the Court system via Twitter.

“We believe that using social media offers a great way to reach an expanded audience who may not otherwise seek information about the courts,” Clark said.

Submitting Evidence from Social Networks

How to authenticate evidence from social networking websites is a relatively new issue for the courts. The following link is to an academic paper that gives an overview to the issue and describes four of the most common approaches taken by courts across the country. One approach looked at and criticised is Tennessee's approach. Click here for article.

Ira P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN.

The Tennessee Court of Appeals used a different approach to authenticating social-networking postings and messages. It found that a message was properly authenticated when the recipient testified under oath that the posting accurately reflected the communications she had with the defendant.109 In Dockery v. Dockery, a woman had a “‘no contact’ order of protection” issued against her ex-husband after multiple instances of alleged domestic violence.110 The ex-husband later attempted to contact her by sending MySpace messages to her friend.111 In the lower court proceeding, the recipient of the MySpace messages testified that she printed the conversations “directly from her computer” and that the printouts accurately reflected their conversation while “identif[ying] which party to the conversation was making a particular statement.”112 The court found her testimony alone sufficient to authenticate the messages as authored by the defendant; that finding was upheld on appeal.113 By relying solely on the recipient’s testimony, the court failed to address the obvious reliability concerns with the MySpace messages. The court did not address the possibilities that the documents could have been altered, that the proponent could have been lying, or that someone other than the defendant could have authored the messages. The court’s failure to make these basic inquiries undermined the fairness of the ultimate outcome of the case because potentially unreliable, inculpatory evidence was admitted against the defendant.

New Law Bans Password Sharing

A new Tennessee Law signed by Gov. Haslam bans password sharing.  Minor infractions result in a fine and the most serious violations are felonies with possible prison time.

Anyone convicted of giving his or her password to an entire dorm room or sports team would face a fine, which would be based on the cost of the content viewed. For example, if the unauthorized viewers watch less than $500 worth of videos, both they and the password distributor could face fines up to $2,500 and a year in jail. Any movie-watching over $500 becomes a felony with much stricter fines and prison sentences.

The Tennessean reports that Netflix Sharing is now a crime in Tennessee.

State lawmakers in country music’s capital have passed a groundbreaking measure that would make it a crime to use a friend’s login — even with permission — to listen to songs or watch movies from services such as Netflix and Rhapsody.