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.

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at RightSideNews.com.

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Sexting Teacher’s Aide Given New Sentencing Hearing by the TN Court of Criminal Appeals

A former Knox County Schools teacher’s aide who sent naked photos to a Gibbs High School student has been given a new sentencing hearing as the result of a recent ruling by the Tennessee Court of Criminal Appeals. Scot E. Vandergriff won the hearing to determine whether he should avoid conviction for sending “inappropriate texts and nude photos” to a male student at the school.

The Court said that the problem began in October of 2009 when Gibbs’ Principal Lynn Hill called the police after a parent complained that there were sexual texts on her son’s phone. The student’s teacher then alerted the principal who, in turn, confronted Vandergriff about the inappropriate text messages.

Vandergriff admitted to the principal that he had sent the photos. He then turned over his phone to authorities and gave consent to search the mobile device. The phone contained pictures of his anatomy and a subsequent investigation showed numerous text messages back and forth with the student, including nude photos.

Vandergriff decided to plead guilty as part of a plea deal to a charge of sexual exploitation of a minor and was sentenced to a two-year prison term. After pleading guilty he applied for judicial diversion, a program for first-time offenders that avoids jail and a criminal record if he were to abide the requirements of probation. The trial judge however, refused to allow Vandergriff to enter into the program. This decision was appealed and the Court of Criminal Appeals agreed that Vandergriff was entitled to another, more complete hearing.

The Court said that the judge, Knox County Criminal Court Judge Mary Beth Leibowitz, did not adequately explain her decision to deny Vandergriff diversion. The Court said that the record does not demonstrate that the lower court considered all the factors in ruling against the application. All Leibowitz said was that she was going to “err on the side of caution” and deny the diversion. This statement is not a sufficient explanation for why Vandergriff does not qualify.

To read the full opinion, click here.

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Texting While Driving Leads To Homicide Conviction/Jail Time

by Jay Perry

            Recently, Aaron Deveau, an 18 year old student from Massachusetts was sentenced, to 2 ½ years with one year to serve in prison for a car crash in 2011 that killed one person and serious injured another.  There was strong evidence that Mr. Deveau (who was 17 at the time) had been texting while driving, and he was convicted of motor vehicle homicide and negligent operation while texting.  The second charge is a relatively new criminal charge in Massachusetts and applies only to cases involving injury.  Mr. Deveau also had his driving privileges suspending for 15 years.  

            While Tennessee does not have a criminal charge specifically related to texting, our vehicular homicide law prohibits the reckless killing of another when driving via “conduct creating a substantial risk of death or serious bodily injury to a person.”  Such a crime is a Class C Felony carrying between 3-6 years of punishment.  There is also the charge of reckless homicide, a Class D (2-4 years), which prohibits the “reckless killing of another.” 

            The conviction of Mr. Deveau (and sentence) demonstrates that many states are recognizing the dangers of “texting while driving”.  Text messaging while driving is currently banned in 39 states with another 5 states banning it for younger drivers.  While it is hard to know exactly how many crashes are due to texting, it is estimated that “distracted driving” was the cause of 18% of all accidents in 2010.  These accidents (in 2010) were responsible for the death of 3092 people with an additional 416,000 estimated injuries. 

Despite these laws and sobering statistics, it does not appear that many people fully understand the risks.  A recently released Centers for Disease Control and Prevention (CDC) study found that 58% of high-school seniors admitted to texting or emailing while driving in the past month.  For high school juniors the percentage who admitted doing so was 43%.  The survey involved questioning more than 15,000 high school students from across the country.  In many ways, these results aren’t surprising.  Anyone who has been a teenager (or who now is the parent of one) understands that most adolescents don’t fully appreciate risk.  There is increasing evidence that the part of the brain (the striatum) that seeks rewarding experiences matures earlier than the prefrontal cortex, which regulates the ability to control behavior and overcome impulsivity.

          There are underway a great many educational campaigns to help students appreciate the dangers of texting while driving.  We can only hope that as texting becomes a more and more common method of communication, these dangers are better internalized, not only by adolescents but adults as well.  The story of Aaron Deveau is a tragedy for all involved.  It was a terrible accident that took the life of Donald Bowley Jr., seriously injured his girlfriend, and has changed Mr. Deveau’s life forever.