“The Privacies of Life”: Cellphone Searches, Court Confusion, and Public Misconception in the Post-Riley Era

December 22, 2014

By: M. Claire Donnelly

The landmark decision of the summer, that has since thrown both police departments and technology companies into frenzy, was the unanimous Supreme Court decision in United States v. Riley.[1]  The highest Court in our nation made clear: “[o]ur answer to the question of what police must do before searching a cellphone seized incident to arrest is accordingly simple—get a warrant.”[2]  The Court reasoned that even though cellphones are hand-held objects, they are not less worthy of the protections of the Fourth Amendment that our Founders fought diligently for—to protect from “the privacies of life.”[3]  Riley, which upholds one of our most fundamental rights as citizens, has led to a  debate between civil rights groups, law enforcement agencies, and technology companies regarding privacy.  In addition to this debate, and in light of the Snowden leaks, the public is unaware of its privacy concerning technology.

As Riley made its way up the pipeline, commentators were not so sure how the Court would rule.  Although Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects everyone from arbitrary or unlawful interferences with their “privacy, family, home, or correspondence,” the law upholding the right to privacy has struggled to respond to new technology.  Since the decision, Riley has impacted every cellphone user in our nation, which just so happens to be roughly 90% of American adults as of January 2014.[4]  Most of these users’ phones—58%—are smartphones.[5]  Every one of these cellphone owners is impacted in the way our government invades this now “private” area.

The impact did not end just there.  Riley has also impacted every technology company introducing new products that are touted to have the best encryption methods yet.  In September, Apple released that their new privacy policy does not allow for the company to bypass an individual cellphone user’s password.  Prior to this release, Apple was able to unlock cellphones for the police, and since this change the company has received public backlash from the FBI and law enforcement agencies.  The Director of the FBI, James Comey, attacked Apple and Google, who followed Apple’s lead, by saying the companies are “market[ing] something expressly to allow people to place themselves beyond the law.”  The FBI has since requested secret “backdoor” accessibility, unknown to the public.  Civil rights groups, however, have criticized this suggestion by arguing that once a backdoor is created, hackers and foreign governments will “come knocking.”[6]  In addition, these groups argued, “the government has never had access to everything, and it shouldn’t.”  Seems similar to the Court’s ruling.

Photo credit of coptubeamerica.com.

Photo credit of coptubeamerica.com.

Post-Riley, lower courts are now grappling with many other issues surrounding cellphones.  One such issue, which has been emerging as a “prime battleground” post-Riley, is cell site information, which is the data gathered from location-sensing technology on a cellphone.  Notably, two weeks before Riley was issued, the United States Court of Appeals for the Eleventh Circuit ruled on cell site information, also referred to as “metadata.”  The Eleventh Circuit rejected law enforcement’s practice of tracking a suspect under this method without a warrant because the information is within the cellphone owner’s reasonable expectation of privacy.  Soon after, in light of Riley and the Eleventh Circuit, the Northern District of California denied law enforcement’s “longstanding practice” of obtaining cellphone location information.

Another main issue that has arisen is evidenced by a district court in Virginia Beach, Virginia, that just ruled on the new iPhone 6 encryption software, Touch ID.  The court held that the new encryption, which allows the user to access the contents of his phone via fingerprint touch rather than inputting a password, is not protected in the same way that a password is under the Fifth Amendment’s prohibition on self-incrimination in a criminal proceeding.  The court reasoned that unlike compelling a password, which violates the Fifth Amendment because it requires a defendant to divulge the contents of his mind, a fingerprint is akin to a DNA sample or handwriting, which the law permits.[7]  These are not the only issues that have judges considering the impact of Riley in their rulings, however.  As judges decide cases on searches of student cellphones, photographs seized from a cellphone of a court observer, and photographs seized off a phone incident to arrest, they are considering the powerful words of the Court in Riley: “get a warrant.”  By categorizing these handheld objects as deserving of this privacy, subsequent issues that arise from cellphones must adhere.

As more and more issues arise, recent reports are highlighting unlawful government surveillance with regards to cellphones other than opening the phone itself or collecting the phone’s metadata.  For example, National Public Radio (NPR) recently reported on the use of “Stingrays” and “ISMI catchers,” which mimic a cell phone tower and intercept cellphone signals.  The American Civil Liberties Union (ACLU) requested records from one police department in Florida suspected of using this type of surveillance technology.  However, federal agencies swooped in and destroyed or got rid of the technology, and provided no information on the matter.  Similar requests have been made by thirty-four ACLU affiliates, who filed over 375 requests.  According to the Riley ruling, these tactics should require warrants, absent exigent circumstances.

Another recent scandal in the media occurred in October after FBI Director Comey commented on the public misconception and hurdles of surveillance technology.  He stated:

“In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications.  That is not true.  And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals…  Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch.  It may be true in the movies or on TV.  It is simply not the case in real life.”

Similar to the Riley Court, Comey acknowledges the importance of privacy protection in the everyday person’s cellphone and the need to have a firm standard.  However, as the above cases and reports demonstrate, law enforcement is abusing this privacy standard.  Law enforcement must adapt prior policies and change its ways in order to comply with this standard.

Locally, the Charlotte-Mecklenburg Police Department (CMPD) has reported to be adapting their policies, which are currently contrary to the law post-Riley.  Prior to Riley, investigators obtained cellphone information incident to arrest without a warrant.  CMPD Detective Brent Foushee, who has been with the department twenty-six years, said the Court’s decision in Riley “turned this [practice] on its head.”  In addition, he said that about half of his suspects in custody consent to the search of their cellphone, which under the law—even under Riley—is lawful because of the voluntary consent.

Technology companies and law enforcement may be making efforts to conform to Riley, but with these changes comes more problems.  Moreover, courts have not yet caught up with already-existing technology.  How will they be able to catch up with technology in the works?  And how will technology companies and law enforcement efficiently adapt with each change in the law?  Furthermore, as CMPD demonstrates, there are still lawful ways to get around the privacy standard upheld in Riley.  This is not an easy process.

Law enforcement, the judicial system, and the public are all struggling to understand the law in regard to cellphones.  While the Supreme Court has recognized the importance of privacy in this area, implementation of that privacy and creating a fine line for where that privacy begins and ends is unclear.  One thing is for certain, however: the Court has recognized—in a unanimous decision—that it is unlawful to conduct a warrantless search of a cellphone.  Subsequent cases regarding cellphone technology must follow this ruling.

[1] Riley v. California, 134 S.Ct. 2473 (2014)(United States v. Wurie was combined with similar case Riley, and they were argued and decided together).

[2] Id. at 2495.

[3] Id.

[4] http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/

[5] Id.

[6] https://www.aclu.org/blog/national-security-technology-and-liberty/securing-our-data-should-come-first.  Academia in the field is also shooting down Comey’s suggestion, as Columbia University science professor Steven Bellovin said, backdoors are “a disaster waiting to happen.”

[7] See also Keeping the Government Out of Your Smartphone, where Chris Soghoian, Principal Technologist and Senior Policy Analyst at the ACLU warned: “screen unlock patterns are not your friend.” And see Apple’s Fingerprint ID May Mean You Can’t Take the Fifth, where Marcia Hofmann, a boutique lawyer focusing on computer security, a former staff attorney at the Electronic Frontier Foundation, and adjunct professor at U.C. Hastings College of Law, warned of the legal effects of moving from pin to fingerprint.

Homeless Court Initiative Taking Shape in Charlotte

December 19, 2014

Homeless Courts, which are alternative-sentencing programs for those charged with a status offense due to their lack of housing, have been established in many major cities across the United States.  Homeless court programs began in San Diego in 1989, and have since been the model program for the other cities.  The American Bar Association, which adopted a model policy in 2006 for homeless courts, describes the purpose of the program best:

“[t]o counteract the effect of criminal cases pushing homeless defendants further outside society, this court combines a progressive plea bargain system, an alternative sentencing structure, and proof of community-based shelter program activities to address a range of misdemeanor offenses. Homeless courts expand access to justice, reduce court costs, and help homeless people reintegrate into society and lead productive lives.”

Over the past several months, a coalition has begun to establish a homeless court here in Charlotte.  With the help of the Civil Rights Clinic, this group has been researching, developing, and gathering community interest.  Each city has their own unique model tailored to the needs of their clients, and we are focused on doing the same.  For more information about our efforts or to join the coalition, please email jhuber@charlottelaw.edu.  For more information on homeless courts across the country, see:

For an American Bar Association publication on its adoption of homeless courts, see: http://www.americanbar.org/content/dam/aba/migrated/homeless/PublicDocuments/HCP_Manual.authcheckdam.pdf.

Our coalition hard at work at the CSL Civil Rights Clinic.

Our coalition hard at work at the CSL Civil Rights Clinic.

Expunction Function

December 18, 2014

Written by Corey V. Parton, Parton Law Firm, PLLC

Research by Brandon Forbes, 3L, Charlotte School of law

Everybody makes mistakes.  Most people regret them, learn from them, and move on.  But for 1.6 million out of 9.5 North Carolinians, these mistakes have resulted in a permanent criminal record.[1]  In addition to serving as a constant reminder of one’s past transgressions, a criminal record can create real and substantial obstacles for those seeking employment and affordable housing.  For example, 90% of employers conduct criminal background checks.[2]  In North Carolina, criminal charges can only be removed from one’s record by court order.  Generally, these court orders are only available for: drug and alcohol related crimes, charges that were dismissed or resulted in a not guilty verdict, non-violent felonies, and gang or prostitution related offenses.  The following is a brief breakdown of North Carolina’s expunction statute and crimes to which it applies:

The most commonly used section of the expunction statute is N.C.G.S. § 15A-146, which provides for the expunction of charges resulting in a dismissal or not guilty verdict, as long as the petitioner has not received a previous expunction.  Since this is the only portion of the statute requiring the petitioner to have no previous expunctions, the prudent practitioner will seek a N.C.G.S. § 15A-146 expunction first when attempting to clear up a cluttered criminal record.  North Carolina case law has not yet addressed whether expunging multiple dismissed charges stemming from a single incident is a proper use of this section of the statute.[3]

N.C.G.S. § 15A-145(a) provides for the expunction of misdemeanors committed when the defendant was under the age of 18 (or under 21 for possession of alcohol) after two years have passed.

N.C.G.S. § 15A-145.1 allows for the removal of certain gang-related offenses after a two-year wait period provided they were committed when the petitioner was under 18.

First time drug offenders who were under 21 at the time of their conviction may be eligible to have their charges expunged two years following their conviction pursuant to N.C.G.S. § 15A-145.2-3.

Certain non-violent felonies committed by the petitioner when they were under 18 can be expunged under N.C.G.S. § 15A-145.4 after four years have passed.  The petitioner must also complete at least 100 community service hours.  Other non-violent felonies and misdemeanors can be dismissed, regardless of the petitioner’s age at the time of conviction under N.C.G.S. § 15A-145.5, provided fifteen years have passed since the conviction.

Certain prostitution offenses are eligible for expunction under N.C.G.S. § 15A-145.6 when the offense was due to human trafficking and the petitioner has no previous or subsequent prostitution related convictions.

With the exception of N.C.G.S. § 15A-146, all petitions for expunction must be accompanied by an affidavit stating that the petitioner does not have any outstanding civil judgments or subsequent convictions anywhere in the United States.  The petitioner must also provide affidavits from two non-relatives in their community attesting to the petitioner’s good moral character.

This article is intended for informational purposes only and is not intended to be used or relied upon as legal advice.  For specific information regarding your case you should contact a licensed attorney.

Corey V. Parton

Parton Law Firm, PLLC

1300 South Blvd. Suite K-118

Charlotte, NC 28203

Telephone: (704) 971-8618

Fax: (704) 716-9807

E-mail: parton@partonlawfirm.com

[1] http://www.nciolta.org/journal_spring2014.asp

[2] Id.

[3] See In re Expungement for Kearney, 620 S.E.2d 276 (N.C. App. 2005).

Federal Clemency Initiative

December 8, 2014

By: Courtney Rudy

The Department of Justice in conjunction with the President created The Clemency Initiative, which encourages federal inmates to petition to have their sentences commuted or reduced.[1]  The group, “The Clemency Project 2014,” assists prisoners who apply for this clemency initiative.  Article II section 2 of the U.S. Constitution grants the President the power of executive clemency.  The presidential power only extends to federal criminal offenses.  Executive clemency comes in the form of pardons, commutation of sentence, remission of fine or restitution, or reprieve.  Requests for executive clemency for federal offenses are first sent to the Pardon Attorney who reviews the petition and prepares a recommendation for the President.[2]  The Deputy Attorney General signs the final disposition for each application.  The Office of the Pardon Attorney then prepares the documents the President signs when he grants an executive clemency and notifies all applicants of the President’s clemency decisions.[3]

Deputy Attorney General James Cole announced the Clemency Initiative on April 23, 2014.  He stated that the Clemency Initiative was created to make the criminal justice system effective, fair, and to restore people’s confidence in the system.[4]  The initiative was specifically created for federal prisoners who, if sentenced today under current sentencing laws and polices, would likely have received a substantially lower sentence.[5]  The Office of the Pardon Attorney and the Federal Bureau of Prisons are working together on this initiative.  Another major source of assistance comes for a non-government affiliated organization: The Clemency Project 2014.[6]

To apply for the Clemency Initiative, federal prisoners can fill out an Executive Clemency Survey through the TRULINCS Survey Service.[7]  If an inmate does not have access to the Bureau of Prisons TRULINCS system they will be provided with a paper version of the executive clemency survey. [8]  To qualify for the Clemency Initiative, inmates have to meet all six of the following requirements:

  1. They are currently serving a federal sentence in prison, and by operation of law, would have received a substantially lower sentence if convicted of the same offense(s) today;
  2. They are a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs, or cartels;
  3. The have served at least 10 years of their prison sentence;
  4. They do not have a significant criminal history;
  5. They have demonstrated good conduct in prison; and
  6. They have no history of violence prior to or during their current term of imprisonment.

The Clemency Project 2014 will contact all inmates who fill out the executive clemency survey to let the inmates know if they met the criteria.  If the criteria are met, the inmate will be provided an attorney through the Clemency Project 2014.

The Clemency Project 2014 is a non-government affiliated organization created shortly after the Deputy Attorney General announced the Clemency Initiative.  The organization is mainly composed of members from the American Bar Association, the National Association of Criminal Defense Lawyers, Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums.  Individual attorneys, activists, and law school clinic students also participate.  All Clemency Project 2014 attorneys provide their services pro bono, ensuring that the federal prisoners incur no charges.  The services the attorneys provide are screening the prisoners’ applications and representing or finding representation for prisoners who qualify.  On October 31, 2014, the Clemency Project 2014 announced that 25,425 federal prisoners have submitted application for consideration, 4,864 applications are currently under attorney review, 5,024 applications contained a sentence of less than ten years disqualifying the applicant, and more than 1,500 attorneys have volunteered to take pro bono cases.[9]

You may be surprised that federal public defenders and court appointed attorneys are not a party of the aforementioned group of individuals involved.  They are not involved as explained in a memo from the Administrative Offices of the United States Courts issued on July 31, 2014.  The Memo states that prisoners are not constitutionally guaranteed legal representation in clemency suits, meaning that the government cannot pay the attorneys to provide representation.  The memo also states that although federal public defenders cannot provide representation in clemency proceeding, they are still able to assist with screening clemency applications if it is on a fully reimbursed basis.

Since federal public defenders were prisoners’ main resource for legal issues and it has recently been decided that they are not able to provide representation in clemency proceedings, the Clemency Project 2014 is always looking for volunteers to assist with the large amount of cases.  The Clemency Project 2014 provides online training, resource materials, a panel of expert resource counsel, and a screening committee.  To find out more about how to become a volunteer, contact volunteer@clemencyproject2014.org.

[1] USDOJ: Office of the Pardon Attorney: New Clemency Initiative.” USDOJ: Office of the Pardon Attorney: New Clemency Initiative. Accessed October 10, 2014. http://www.justice.gov/pardon/new-clemency-initiative.html.

[2] Current Pardon Attorney is Deborah Leff.

[3] Current Deputy Attorney General is James Cole. USDOJ: Office of the Pardon Attorney: About the Office.” USDOJ: Office of the Pardon Attorney: About the Office. Accessed October 10, 2014. http://www.justice.gov/pardon/about-pardon.html.

[4] “For our criminal justice system to be effective it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system. I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.” Deputy Attorney General James M. Cole
Press Conference Announcing the Clemency Initiative
Washington, D.C.
April 23, 2014

[5] “NACDL.” Clemency Project Overview and FAQs. Accessed October 10, 2014. http://www.nacdl.org/clemencyproject/

[6] USDOJ: Office of the Pardon Attorney: New Clemency Initiative.” USDOJ: Office of the Pardon Attorney: New Clemency Initiative. Accessed October 10, 2014. http://www.justice.gov/pardon/new-clemency-initiative.html.

[7] TRULINCS is an electronic messaging system run by the Federal Bureau of Prisons. For .05 a minute inmates can sent electronic messages to approved recipients, which are then reviewed by correctional staff and forwarded to a 3rd party site. Inmates pay for this service by accessing their inmate trust fund account. https://www.publicknowledge.org/news-blog/blogs/the-price-of-communicating-from-behind-bars

[8] “NACDL.” Clemency Project Overview and FAQs. Accessed October 10, 2014. http://www.nacdl.org/clemencyproject/

[9] “Clemency Project 2014.” Clemency Project 2014. Accessed October 10, 2014. https://www.clemencyproject2014.org.

On Approved Financing

December 2, 2014

Part II: The Three Major Credit Reporting Agencies and Removing Negative Items

By Gatlin Groberg

In my last blog, I answered the question of “what is credit?,” explained how credit scores are calculated, and what one can do to improve their credit score.  In Part Two we will dive deeper into credit and explain who maintains the history of your credit, and what you can do to improve your credit once negative items that you believe are inaccurate have taken hold of it.  Near the end of this blog, I’ll explain the consequences of accurate negative items and foreshadow what the future holds for consumer protection laws.

Credit Reporting Agencies

The question of where the credit history of individuals is maintained is an easy one to answer: private companies. Banks and lenders provide consumer information to these private companies—credit reporting agencies—and in turn the credit reporting agencies sell that information to whomever requests it.  These could be potential employers, other banks and lenders attempting to qualify an individual for credit, rental properties, etc.  Like credit scores, there are just a few popular credit reporting agencies that most banks and lenders use.  Instead of just one company, there are three major credit reporting agencies that banks and lenders report your credit use to.  Equifax, Experian, and Transunion are the most popular credit reporting agencies that most look to for accurate histories of credit transactions.

The practice of utilizing three major credit reporting agencies is important to understand.  An individual’s credit history may look different depending on which credit reporting agency was used to obtain a credit report.  For example, Equifax may report the history of two car loans and a mortgage, while Experian may also report a credit card.  Therefore, it is a good idea to look at all three credit reports from Equifax, Experian, and Transunion when individuals want to see what is on the entirety of their credit.  A popular site where an individual can get all three of their credit reports is www.annualcreditreport.com.  The United States Congress allows individuals to obtain a free copy of their credit report once every twelve months using this website.

Your Rights Under Consumer Protection Laws

The right to obtain a free credit report is just one of many rights for individuals that Congress has enacted in the ever-evolving world of consumer credit.  When credit first became mainstream in the 1960s, many individuals became victim to inaccurate credit reporting and fraud.  Therefore, Congress passed the Truth in Lending Act (TILA)—a first of its kind legislation aimed at protecting consumers in credit transactions.  There have been many additions to TILA over the years—some meant to improve existing legislation, others meant to keep up with advancing technology.  Today, three pieces of legislation protect consumers from inaccurate credit reporting: The Fair Credit Reporting Act, the Fair Credit Billing Act, and the Fair Debt Collection Practices Act.

       Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA), like many of its consumer protection brethren, is exactly what it sounds like.  Whatever is reported on an individual’s credit history must be accurately reported.  An individual has the right to question inaccurate, incomplete or unverifiable information.  Credit reporting agencies are obligated to investigate an individual’s claim and the inaccurate item then must be removed or corrected, usually within 30 days.

       Fair Credit Billing Act

The Fair Credit Billing Act (FCBA) directly regulates creditors in the same facet that the FCRA regulates credit reporting agencies.  The FCBA allows individuals to dispute items with their creditors and requires the creditor to investigate its accuracy.  Other rights that the FCBA provide are the rights of individuals to a monthly billing statement, creditors must credit accounts for items that have been returned, and creditors cannot obligate an individual to pay for goods and services that they did not accept, were not delivered as agreed, or were not as promised.

       Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA) prevents debt collectors from using deceptive, abusive, or otherwise unfair tactics when seeking a debt repayment. Unfair tactics that the FDCPA prevents range from banning phone calls from debt collectors past 9:00 pm to preventing debt collectors from threatening police action unless a debt is paid.  The FDCPA is the standard when it comes to preventing debt collectors from using harassing and deceptive practices when seeking repayment.

The Accurate Negative Item

The theme of this blog so far has dealt with inaccurate information being reported by creditors and credit reporting agencies.  But what do we need to know about accurate information?  Negative items are a peculiar thing in credit.  They’re the mother-in-law that will never let you live down simple mistakes.  Sure you brought her daughter home late once, but c’mon, that was 5 years ago!  I have a college degree and can provide for her now!  It was just one night and she really likes fireball—but I digress.  Once you have a negative item on your credit report, you have it for a long, long time—seven years in most instances.  Negative items like late payments and collections will (should) fall off of your credit report naturally after seven years from the date of last delinquency.  This is true even if the item has since been taken care of and paid off.  More serious negative items, like bankruptcies, may stay on your credit report for ten years.  Tax liens will actually stay on your credit report forever unless they are paid; only afterward will the countdown until it falls off naturally begin.

These are the harsh and serious consequences of anyone that has made the simple mistake of forgetting to make a monthly payment.  Some have argued that this practice is just a stark reminder to those that laugh in the face of obligation.  Others argue that it is akin to the deceptive practices that TILA was created to prevent.  FICO has taken the latter to heart and recently changed their scoring model to provide more deference to those that made simple mistakes or have low balance collections.  Unfortunately, the seven to ten year sentence remains the same.

Keep reading the blog and listening to the Legal Dose—we’ll see you next time!

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