Legal Upsets Regarding Fourth Amendment Rights, And Three Ways To Prepare Your Firm For Change

The Constitution’s Fourth Amendment is certainly receiving a lot of recent attention.

On Wednesday, a Judge announced he will rule on whether to dismiss a lawsuit filed by Aron Tobey, 21, of Charlottesville, who was detained by federal Transportation Security Administration officers December 30 at a Richmond International Airport.

Tobey, a college student, was arrested after he stripped down to his running shorts to reveal the text of the Constitution’s Fourth Amendment written on his chest in protest of airport security measures.

And, last week, Judge Susan K. Gauvey, a magistrate judge in Maryland, issued an opinion regarding the Fourth Amendment legal rights (under Smith v. Maryland) of persons subject of an arrest and whether warrants can be issued authorizing the disclosure of location information via GPS technology on cell phones. 

“In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts. Accordingly, the Court DENIES the underlying warrant applications, but sets forth its guidance on the showing necessary for law enforcement access to prospective location data to aid in the execution of an arrest warrant.”

IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011), the Judge concludes:

“The government’s arguments, if credited, would allow law enforcement to obtain location data on any subject of an arrest warrant. This would be the result whether the defendant was charged with a misdemeanor or a felony, without any demonstration of any attempt on the part of the subject to avoid prosecution, so long as law enforcement had reason to believe that the source of the location data – here a cell phone – was in the possession of the subject.

“Some might say that this is an appropriate use of a new technology in the service of more efficient and effective law enforcement. Others might say it is an unnecessary use of a new technology in a society already subjected to pervasive surveillance. The Court understands the tension. Regardless of individual views, the law does not currently sanction the requested acquisition of location data in these circumstances.”

The Volokh Conspiracy blog has an analysis of the judge’s opinion, and also an interesting rebuttal.

Whatever your side of the courtroom, however, these two cases are indicative of a trend regarding Fourth Amendment rights and technology. 

Full body scanners, computers, social media, EMV chips, every bit of this technology has changed the way lawyers manage the security of their firms, advise clients, and handle cases. To ensure your law firm is adequately equipped, try these three simple steps:

  1. Keep associates informed. CLEs are not just a requirement, but they’re necessary for your firm’s associates to provide the best, most up-to-date services to your clients. Ask paralegals to update the lead attorney of each case on any applicable legislative or legal changes. With their own chains of communication, staff is often the first abreast of new developments in the legal world.
  2. Invest in technology. Technology is the number one way your firm can become more innovative and efficient at the office and in the courtroom. Send your IT staff to technology conferences to stay on top of e-discovery trends, case management software, and other online legal resources.
  3. Embrace change. The industry of law, historically, tends to err on the conservative and traditional side. But change doesn’t have to be a thing to fear. Instead, get your team on board with change. Ensure your accounts have sufficient liquidity, your accountants maintain recession-proof bookkeeping, your portfolio of clients is diversified, and your associates thrive in unpredictable environments. It’s important to train associates, especially first years, how accept and adapt to the unexpected. Consider team-building retreats and other activities that will ensure big decisions in legislation don’t stymie quick action by your lawyers.

Judge Gauvey is correct in her statement, “There is no precedent for what the government seeks.” But certainly, sometime soon, there will be. How will you prepare?

 -WB

To discover whether or not your firm is prepared for changes in its field of law, sign up for C4CM’s Industry eNews. You’ll gain:

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