Is there an app for that? Tech causes criminal defense concerns

The advent of technology can be a wonderful thing. The convenience that devices such as GPS, cellphones, smartphones and others have provided can hardly even be estimated in dollars or time. But how much of what you use those devices for is private? More and more criminal defense attorneys are finding themselves in a position of fighting warrants being issued for their clients’ technology. Defendants in New Jersey and across the country are likely to encounter such demands more frequently as the use of technology continues to grow in our personal and business lives.

Cellphone carriers are frequent targets of requests for information. A recent New York Times article says that carriers were asked to respond to over a million demands for GPS and texting information last year. Search engines such as Google are not only being used to find evidence of alleged crimes but even to track information that might predict and prevent purported crimes before they occur.

In January, the U.S. Supreme Court ruled to limit the use of GPS as evidence. But the court noted that the trove of cellphone data should be made available to law enforcement to mine for evidence, just saying that clearer standards are needed for when and how and under what circumstances. And a recent Missouri case went even further, ruling that GPS tracking could be used as evidence even without a warrant.

Clearly, the trend is to admit more data as technology provides more evidence. As the use of warrants to retrieve such data expands, a criminal defense team will have to turn to constitutional arguments and defenses based on privacy laws. Defendants in federal and state courts in New Jersey may benefit by knowing that every keystroke and every voiceprint may be offered as evidence to be used against them in criminal proceedings.

Source: ABA Journal, “It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time,” Martha Neil, July 17, 2012