Digital Divide and Access to Justice Vivian I. Neptune Rivera SELA 2015 The digital divide has been defined as the unequal access to new technologies and the lack of knowledge regarding its use and potential when accessible.1 The limitations regarding access to and the application of these technologies create a chasm between citizens and countries. Closing the digital divide has been a common objective of several worldwide organizations, private and governmental, as they acknowledge that access to new technologies will aid in the formation of new community and economic development models.2 Several projects have succeeded using this model, while others have not had the same fate as they have not understood the underlying social and economic inequalities that cannot be solved merely by providing access to technology.3 There is an aspect of the digital divide that has been the subject of very little study. It pertains the judicial processes by the State against individual citizens when they are based on evidence that has been created, stored, or voluntarily shared by citizens on the internet through new information technologies, or the evidence that has been created or stored in their private electronic equipments or those that belong to their employers.4 Citizens leave a digital print that may later be used 1 Mark Lloyd, The Digital Divide and Equal Access to Justice, 24 Hastings Comm. & Ent. L.J. 505, 522-‐524 (2002). 2 Id. at 526-‐53 3 Julia R. Gordon, Legal Services and the Digital Divide, 12 ALB. L. J. SCI. & TECH 809, 811 (2002). 4 I use the term electronic evidence when the analysis focuses on the hardware and digital evidence when concentrated on the evidence contained in the equipment or
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against them by the State. The lack of knowledge about the implications of that digital print, once it has been created, exemplifies how certain sectors are more vulnerable due to their lack of knowledge of the possible uses of these technologies despite the fact that they have access to them. Most of the evidence, substantive or illustrative, presented at this time before the courts in the United States and Puerto Rico, is in digital and electronic format.5 The State has the resources to present cases against citizens using this evidence. The average citizen does not have the economic resources nor the technological knowledge to present a defense when the evidence is in these formats. Inequality grows in detriment of the population’s individual liberties. I propose that the digital divide results in unequal access to justice, as the average citizen lacks the resources, the technology, or adequate tools to defend himself from the accusations presented by the State based on electronic or digital evidence. In the first part of this paper I will discuss the digital divide and how the subject has been approached in recent years as a problem of access and inequality. In the second part I will discuss the production, storage and use of electronic and digital evidence, and the challenges that this type of evidence presents regarding the right to privacy, conservation issues, authentication, and uses in judicial processes. hardware. See the manual of the Organization of American States , Manual Handling Digital Evidence and Computer Environments to p. 3, in http://www.oas.org/juridico/english/cyb_pan_manual.pdf. 5 See, Permanent Advisory Committee on Evidence Rules 2007, Puerto Rico Supreme Court, www.ramajudicial.pr/sistema/supremo/Informe_Reglas-‐de-‐ Derecho-‐Probatorio-‐2007.pdf p. 639 and Janet Walker, Gerry Watson, New Trends in Procedural Law: New Techonologies and the Civil Litigation Process, 31 Hastings Int. & Comp. L. Rev. 251 (2008).
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Finally, I will present examples of cases in the Puerto Rico and United States courts that illustrate how the lack of access to technologies and of knowledge regarding how the State uses them, deprives citizens of the possibility of mounting adequate defenses and of having access to the judicial system, resulting in a situation of inequality before the law. I.
The digital divide
The concept of the digital divide is difficult to define and presents many dimensions regarding its effect on the general population. In its most common usage, it refers to the lack of access to the Internet, but it is also deemed to include the inequalities in access to a computer, Wi-‐Fi connection and bandwidth.6 For the purposes of this reflection, I will concentrate on the approaches that concentrate on the lack of resources to acquire, possess or use technology for business or personal transactions. There is consensus in that, when speaking about the digital divide, it is not about whether a group has or doesn’t have access to the technologies. It is indispensable to evaluate socioeconomic conditions, education and the knowledge and skills to use that technology to understand the extent of the digital divide.7 The discussion in some countries centered around the lack of access to the internet, the lack of resources to acquire hardware, and the lack of skills and knowledge regarding the adequate use of these technologies. The discussion later 6 The
term digital divide is attributed to Larry Irving, former Assistant Secretary for Communications and Information and Administrator of the National Telecommunication and Information Administration (NTIA) of the Federal Department of Commerce. See Addendum 1. 7 Marco Peres Useche, El Papel del Gobierno para Superar la Brecha Digital, 9 REV. PROP. INMATERIAL 117, 120 (2006).
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evolved to the right to free access to Wi-‐Fi or the Web and, in some countries, to bandwidth. Some of the factors that preclude that low-‐income and minority individuals, as well as communities, from fully participating in the technology era are: lack of relevant content (much content dedicated to sales and commerce and not to community needs); the need for literacy (when faced with a considerable amount of available information, citizens need to tell the important and trustworthy from the superfluous and untrustworthy); lack of adequacy in bandwidth, as broadband is necessary for its effective use, and eliminating fear of technology usage.8 Analyzing access to technologies, applications, the knowledge regarding the use for those applications, search engines, and content access and comprehension is essential.9 Although most countries have reported an increase in the use of technology,10 this can create the false impression that the divide has been closed based exclusively on the access to equipment. However, the intensive use of this technology entails other challenges, like voluntary and involuntary divulgation of information for third parties including the State, of which users are not aware. Therefore, it is not about whether or not people possess the hardware. The divide revolves around the intelligent use of that equipment like for example, be able to gather useful information and participate in governmental decision making, in a way that does not compromise individual rights. Puerto Rico 8 Id. note 3 at 811. 9 Id. note 7 at 122. 10 The Global Information Techonology Report 2015
www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf
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In Puerto Rico, according to the 2011 US Census, 45.6% or the population lives in poverty. This percentage is higher than Mississippi’s, considered to be the poorest state of the union, with 22.6% of the population regarded as poor. The lack of economic resources makes access to justice more difficult, which results in a profound inequality regarding opportunities, benefits and services. 11 There are 1,764,635 persons in Puerto Rico who, albeit having an income, cannot avail themselves of legal representation due to lack of resources and the high cost of legal counsel.12 Although Puerto Rico figures among the top nations in the world when it comes to presence in social networks, it lags in home Internet and computer penetration. 13 This is known as a digital paradox: Puerto Rico holds the 11th position on presence in social networks, but drags in the 55th position regarding internet penetration, and in 32nd place on the subject of home computer ownership.14 The interconnectivity alluded in the 2015 World Economic Forum’s report presents a dichotomy between countries that have greater access to technological equipment and the web, and the productive use of these technologies. The top places on information technology are filled by nations such as Singapore, Finland and Sweden, followed by the Netherlands, Norway, Switzerland, the United States, the United Kingdom, Luxembourg, and Japan. Puerto Rico occupies the 44th place.15 11 https://www.census.gov/prod/2012pubs/acsbr11-‐01.pdf 12 Id. 13 Id. note 10.
14 Id. 15 Id.
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Within Latin America, Puerto Rico places behind Chile (38) and Barbados (39). Uruguay (46), Costa Rica (49) and Panamá (51) round out the top five places in the regional classification.16 The correlation between the level of wealth of the top nations on the list and their placing regarding information technology is not mere chance. Inequality perpetuates poverty, and we see it reflected on access and knowledge of information technology. The 2005 Digital Divide Report concluded that there is a relationship between the development of information technologies and the income of their citizens.17 It identifies poverty as the main cause of the digital divide. In developed countries, it aims to address this problem through access to the Internet. More than a technology problem, the digital divide is an economic and political problem for others.18 The more governmental, commercial and social processes are conducted via internet, the lack of access because of economic resources, race, or physical, mental or sensory disability will leave those who may not access it in a situation of profound inequality.19 There is a commitment from a sector of the legal profession to the effect that the new technologies not turn into yet another layer of complexity and discrimination against clients and individuals. This sector proposes an analysis of 16 Id. 17 http://www.unctad.org/en/docs/iteipc20065_en.pdf. 18 Id. note 7 at 125; Id. note 1 at 536: “New Communications technologies can help correct
this, if they are properly used to focus and direct political dialogue. The justice divide, just like the digital divide, can be closed, but first we must understand that the divide is neither cause by, nor can it be corrected by, the market or the machine. We must understand that the digital divide, like the justice divide, is a political divide.” 19 Id. note 3.
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the intersection between the digital divide and legal services, in order to join efforts that may guarantee equal access to these technologies, thus stemming inequality.20 A 2014 poll made by Estudios Técnicos de Puerto Rico revealed that, out of 1,253,690 homes polled, 622,098 stated that they did not have access to the internet, and 522, 587 did not own a home computer; out of the 712,103 who reported owning a computer, 152,015 do not have it connected to the internet; the higher the level of education, the greater the incidence of computer ownership; specifically, out of those who said they owned a computer, 30.4% reported having less than the equivalent of a high school education; 62% had completed high school, an associate degree or some college studies; and 85.5% had a college degree or higher.21 This same poll reflected that 76.7% of those polled on the Island access the Internet through their cellular telephones, 53.9% through their computers, 14.5% using tablets, and 6.6% via their work computers.22 There is a correlation between the population with socioeconomic profile below poverty that owns smartphones even if they do not own a home computer.23 Access to the web from smartphones is greater than access from personal computers. 58% of the population of Puerto Rico 20 Id.
note 3 at 811. The sense of inequality used in this paper is about the difference principle developed by Rawls. In the combination of the difference principle with the principle of fair equality of opportunities, Rawls aims to provide an alternative to both the system of natural liberty and the liberal principle of equal opportunities. Rawls, Theory of Justices (1971 ) . 21 2014 Sales & Marketing Executives (SME) Digital & Mobile Behavioral Study. 22 Id. 23 The market penetration, deals, no credit check, offers, cash payment, and pre paid cellphone cards, among others, enable a part of the population with limited resources, to have access to smart phones using money from the underground economy, whether legal or illegal, to purchase and use them.
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aged 12 and older is connected to the Internet. This percentage is the equivalent of 1,827,239 users. This is expected to increase to 60% for 2015. The study also reveals that those with higher education and income levels demonstrate a higher rate of connection to the Internet. In the 2014 SME Digital & Mobile Behavioral Study, the percentages of Internet connection by family income were as follows: Below $14,999: 44.3%. (Below the 45.5% registered in 2013.); $15,000 -‐ $30,000: 62.4%. (Below the 67.5% registered 2013.); $30,000 -‐ $49,999: 94.1%. (Above the 93.3% registered 2013.); $50,000 -‐ $74,999: 100%. (Above the 91.7% registered in 2013.); $75,000 or more: 100%. (Above the 88.9% registered in 2013.)24 Regarding the preferred connection methods in Puerto Rico, the breakdown is as follows: Cellular telephone: 75.2%. (Above the 70.3% registered in 2013.); Personal computer: 54.2%. (Below the 62.9% registered in 2013.); Tablets: 14.5%. (Above the 12.0% registered in 2013.); Computer at a place of work or study: 6.3%. (Below the 13.1% registered in 2013.); Mp3 (iPod): 5.0%. (Above the 3.6% registered in 2013.); Videogame consoles: 3.8%. (Below the 5.8% registered in 2013.); Family or friend’s computer: 2.2%. (Above the 1.8% registered in 2013.); Handheld electronic games: 2.0%. (Slightly below the 2.4% registered in 2013.)25 The study conducted by the Sales and Marketing Executives Association of Puerto Rico also provides additional data regarding the patterns and tendencies of Internet use on the island. For example, 98% of Internet users have a broadband connection, which is the equivalent of 1,790,695 persons. 85.4% of the population 24 Id. note 21. 25 Id.
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aged 12 years and older has a cellular telephone, or the equivalent to 2,690,453 persons. Of that 85.4%, 61.1% has a “smart phone”, and 81.7% of this group uses the cell phone to access the Internet. This is an increase from the 74.7% registered in 2013. 60% of those polled claim to have a personal computer at home.26 The increase in population having a smart phone or accessing the Internet from a personal computer: does it mean that the digital divide has been broached? I propose a broader definition of digital divide that addresses the knowledge of technology and of the implications regarding its use. This definition is not limited to whether or not a particular citizen has a computer or access to the Internet. I add to this analysis its potential correct use for social and economic development as an engine that propels change and lessens inequalities. I also add to this approach the information that is shared, knowingly and unknowingly, each time an individual has access to technological hardware and to the Web. This is the greater concern from an inequality standpoint, as people without knowledge about their individual rights and liberties renounce voluntarily or involuntarily to them, vis a vis those who master, know and practice the pertinent precautions when using technological hardware and the Web. By doing so, I propose that the digital divide is no longer limited to the ownership of technological equipment. The concept has evolved to include the lack of users’ knowledge regarding the potential for development that these new technologies propose, as well as regarding the privacy they reject and expose when
26 Id.
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using these technologies without full knowledge of the digital print they create and of the legal consequences of access to it by third parties and by the State. The governments of developing nations seek consensus regarding technological changes so that citizens and businesses can develop and access information that might generate wealth and wellbeing.27 The social divide stemming from the use of information technologies has been identified as a priority to be addressed by those nations aiming for digital inclusion. In the Global Information Technology Report 2014, Rewards and Risks of Big Data, Cisco CEO John Chambers stated: “I believe we are currently experiencing the biggest fundamental change the world has seen since the initial development of the Internet as people, processes, data and things become increasingly connected. We call this the Internet of Everything (IoE), and it is having a profound impact on individuals, businesses, communities and countries.”28 It is within the context of that Internet for Everything that studying the impact of the inadequate use of the Internet and the renouncing of civil liberties, like the ones derived from privacy, becomes necessary. Reflection and analysis regarding the implications of lack of knowledge on the adequate uses of technology brought about by inequality in access to justice and information is imperative. II.
Creation, storage and use of electronic and digital evidence: privacy, conservation issues, authentication and use in judicial processes.
27 Id. note 7. 28 The Global Information Technology Report, 2014, Rewards and Risks of Big Data. World
Economic Forum, p. Vii. We will use the term “internet of everything”.
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Individuals with little access to educational tools and legal knowledge of individual rights use technological equipment unaware of the evidence they are generating. The right to privacy, constitutionally consigned in the United States and Puerto Rico, is voluntarily forfeited by those who do not know the implications of the reckless use of technologies without having adequate information. The repeated use of technology can create a digital print. The use by the State of that print against its citizens is increasingly frequent and easy. Social media Millions of people use Facebook as a platform to exchange personal or business information, as well as to share pictures, videos and data. They place private information on Facebook about their families, personal relationships, and more. Very few people use the available security options, even though Facebook clearly states in its policy that the expectation of privacy is minimal. There is no such thing as a private network because, when one person “friends” another, he or she may have access to information placed on that person’s wall by a third party. The same happens with uploaded photographs when users agree to allow members of the Facebook community to tag, share or like, causing those photographs to appear on their walls. In family law cases in Puerto Rico as well as in other countries, Facebook pages are used as circumstantial evidence of purchasing power to establish the right to child support, custody, and subjects related to the causes for the divorce.29 In the 29 See, Clayton Russell B., The Third Wheel: The Impact of Twitter Use on Relationship Infidelity and Divorce, en Cyberpsychology, Behavior and Social Networking, July 2014, Vol. 17, No. 7: 425-‐430.
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criminal area, it is common practice that undercover agents use these networks to launch operatives against child pornography and child abuse.30 Information that is voluntarily uploaded can, and is, used by the State in those cases, or it can be accessed through a third party who provides or shares that information.31 Twitter The information placed on Twitter is stored by the United States’ Library of Congress in order to collect universal information about contemporary human knowledge.32 This historic registry, dominated by exchanges that are at times insulting, or by individuals referred to as trolls, or behind anonymous identities, make up the digital print of each user. This print cannot be erased and remains preserved for posterity. Emails Sending emails exposes their content to be intercepted by a third party while en route and after it being received and read. Everything we delete remains registered in our hardware and in servers via each file’s metadata.33 The option to delete does not eliminate the metadata’s content.34 Deleted emails are more difficult,
30http://www.elnuevodia.com/noticias/seguridad/nota/granoperativocontraporno grafiainfantilenpuertorico-‐2031728/ 31 http://www.primerahora.com/noticias/policia-‐ tribunales/nota/alacazadepedofiloseninternetintedepredadores-‐213194/. 32 http://www.nytimes.com/2010/04/15/technology/15twitter.html?_r=0.
Historians and scholars of sociology have expressed their joy about this decision: “This is an entirely new addition to the historical record, the second-‐by-‐second history of ordinary people,” said Fred R. Shapiro, associate librarian and lecturer at the Yale Law School.
33 Véase, Vivian I. Neptune Rivera, Los retos de la evidencia electrónica, 76 Rev. Jur.
UPR337, 344 (2007).
34 Id. a la pág. 339.
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although not impossible, to retrieve.35 There is also the chain of custody and the audit trail, which allow the recreation of an email’s transit from its origin to its final destination.36 In addition, an unauthorized third party may supplant a sender’s identity by using a technique known as spoofing.37 In doing so, and depending on the technology in question, the impostor assumes the sender’s identity. It must be pointed out that equipment without security systems or protection are more vulnerable to this mode of intervention. Security Encryption services have gained popularity as the most secure way to transmit information. Through the use of public and private keys, information shared on the Web may be protected. Only the person with the correct key, or code, may access and decipher the information. If the information is intercepted, a third party without the key will not be able to access it.38 However, this technology is not available to everyone, with economic and educational factors as determining variables. Electronic documents 35 Recent
cases of disclosure of emails allegedly deleted by their authors feature Iñaki Urdagarín’s, which demonstrates the vulnerability of the alleged security measures that technological equipment provide. Sending an email is the equivalent of sharing a message in a public forum, as the risk of it being intercepted and published without authorization is immense. http://www.elperiodico.com/es/noticias/sociedad/huella-‐imborrable-‐1392784 36 See also, Vivian I. Neptune Rivera, Las redes sociales y los mensajes de texto:
Autenticación bajo las nuevas reglas de evidencia de Puerto Rico, 44 Rev. Jur. UIPR 285, 289. (2010); and La evidencia electrónica y la autenticación de correos electrónicos, 105 Alfa – Redi: Revista de Derecho Informático (2007). 37 Echterms.com/definition/spoofing 38 Vivian I. Neptune Rivera, La evidencia electrónica y la autenticación de correos electrónicos, 105 Alfa – Redi: Revista de Derecho Informático, págs. 5-‐6. (2007).
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It is imperative to underline that documents that are created in a digital format are not erased or eliminates, but rather only transformed. When we send a document to the trash bin, as well as when we delete emails or files, we merely hide those files so that we may write over them.39 But the overwritten file may be recovered. This also applies to photographs, text messages, emails and visits to Web pages, among others. Text messages In many scenarios, text messages have taken the place of emails. The high volume of messages exchanged daily has pushed service providers to institute policies for the rapid erasing of these messages. This does not preclude that an erased text message may be recovered, although doing this requires more resources and effort. Many citizens who use their cellular telephones to send text messages do not know that providers archive the totality of those messages’ content and, although a person might erase it from his or her individual telephone, the erased text may still be recovered.40 Digital print – renouncing the right to privacy
The digital print cannot be erased. Smart phones store countless amounts of
data, photographs and information that we share with our provider’s server, and that may be easily hacked into. Also, when accessing unfamiliar Wi-‐Fi networks such
39 Id. note 33 at 344. See, State v. Taylor, 178 N.C. App 395 (2006). In a murder trial, the Nextel Communications technician testified that Nextel kept all of its clients’ text messages, authenticated them and got them admitted into evidence to identify the accused as the perpetrator of the crime.
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as those provided for free at airports, we exchange data that may be easily intercepted. Are citizens aware of this reality?
Concerned citizens have started movements such as the “Right to being
forgotten”, sparked from litigation between the Spanish Agency for the Protection of Data and Google.41 Erasing, blocking or keeping out of the Internet any mention or uploaded information, with or without authorization that may undermine the right to privacy or individual rights is the reason behind this movement. 30-‐year-‐old information about a person that has been posted on the Internet, with or without authorization: is it relevant? Should it mark that person’s life? These concerns are among those generated by this increasingly accepted movement, particularly in European countries. The judicial sentences and victories obtained from these struggles suggest an achievement in the conservation of the right to privacy. The employment context
Potential and current employers consult the networks with increasing
frequency to check on the digital fingerprint of possible candidates for employment and of current employees. There is jurisprudence from Puerto Rico, the United States and Europe regarding the firing of employees as a result of images or
41 The European Union’s Court of Justice recognized in its sentence from May 13, 2014, in
the case between Google Spain, S.L., Google Inc. and the Spanish Agency for the Protection of Data (AEPD), Mario Costeja González, the right of citizens to have search engines erase from their lists information that may expose certain citizens’ rights. At the same time, the Audiencia Nacional de España recognized the right to be forgotten in four separate sentences against Google in cases presented by private citizens who requested the erasing of links to information that affected their private lives. http://www.abc.es/gestordocumental/uploads/Internacional/sentenciagoogle.pdf. http://politica.elpais.com/politica/2015/01/23/actualidad/1422015745_590889.html.
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comments posted on social media.42 This illustrates the potential use by third parties of information posted on the Web, which an individual uploads voluntarily trusting in a pseudo-‐intimacy thinking that the exchange is private. It simply is not.
It becomes clear that using the Internet or technological equipment such as
smart phones, generate information in metadata format, which may be used, intercepted or simply shared by third parties with serious consequences in the private, personal, commercial, and employment arenas. Inequality in the access to knowledge of the rights to privacy in these devices and systems constitute the new digital divide. III.
United States and Puerto Rico cases regarding the use of electronic
evidence by the State, and the right to privacy as an access to justice issue. “Technology does not incorporate inequalities, inequality exists in a community’s living conditions.”43 This phrase illustrates the inherent risk that social and economic inequality has on technological inequality. That which is voluntarily shared in the Internet can be used by the State against its citizens. By the same token, a search warrant may offer access to the content of cellular telephones, internet accounts, servers, and computers, in cases where information has been involuntarily uploaded or shared and is inaccessible. Are citizens aware of this situation? Our answer is no, which creates a situation in which the inequalities
42 Fabián Valero Moldes, La actividad en las redes sociales como causa de despido, publicado
en El Derecho, http://www.elderecho.com/laboral/actividad-‐redes-‐sociales-‐causa-‐ despido_11_570430002.html. 43 Id. note 7 at 117.
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between those who have knowledge and scholarship and those who don’t become even greater. Federal Cases from the United States In its 2014 case Riley v. California44, which is the leading case regarding the search of electronic data in cases where a cellular telephone is seized incidental to an arrest, the United States Supreme Court stated: [….] [A] cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.”45 “[A]pplying the Gant standard to cell phones would in effect give “police officers unbridled discretion to rummage at will among a person’s private effects.” 556 U.S., at en 345, 129 S.Ct. 1710. , […] Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency. Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).46 The Supreme Court concluded that, although the search incidental to an arrest does not apply to mobile telephones, other exceptions can justify the search of a cellular telephone without obtaining a warrant. One of those exceptions is known as exigent circumstances, and it underlines that cellular telephones currently
44 Riley v. California, 134 S.Ct. 2473 (2014).
45 134 S.Ct. 2473, Id. at 2490-‐2491. 46 134 S.Ct. 2473, 2493.
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contain very revealing information regarding the private and intimate life of citizens. The Court added: The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.47 In U.S. v. Stile48 the State obtained a warrant to search the home of the accused, who was suspected of committing a robbery. During the course of the search, a second order was obtained for a more specific search of items found within the home, including the content of data stored in computers and cellular telephones. The controversy emerged because police officials searched the texts messages inside the telephone before obtaining the second order. These messages placed him at the scene of the robbery. Stile filed a motion to suppress evidence, citing Riley. The Court concluded that, although the Riley warrant requirement applied, the suppression would not be granted because the State obtained the second order, and the result would have been the same (the gathering of evidence and the filing of charges). In U.S. v. Saboonchi,49 the charge was that Saboonchi violated the Iranian Transactions and Sanctions Regulations espoused under the International Emergency Economic Powers Act. Saboonchi has previously filed for a suppression of evidence obtained as the result of the search of his cellular telephones and of a 47 134 S. Ct. 2494-‐95. 48 2014 U.S. Dist. LEXIS 144241. 49 2014 U.S. Dist. LEXIS 102261.
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flash drive, which were carried out without an order. These searches were conducted under the authority of the “border search” doctrine, after having been seized at the border between the United States and Canada. The motion to suppress was denied. Once the Riley decision was published, Saboonchi filed for a reconsideration of the motion to suppress as per that case. The motion was once again denied, as Riley does not contemplate a “border search” exception. U.S. v. Clark50 dealt with the seizure of Clark’s telephone incidental to his arrest. Immediately after the seizure, a police officer searched through the call registry and through some text messages without having obtained an order. During his interrogation at the police precinct, the officer and the accused went over part of his telephone’s content, including messages, tweets, calls and photographs, still without having a valid warrant. It was at the very end that the accused was asked to sign an authorization to download the full content of his telephone, which Clark signed. Clark moved to suppress the evidence obtained from his telephone because of the lack of a warrant. The officer argued that, although she understood that an order was necessary, this requirement only applied to certain types of data, and not to the call registry, messages and other information that may be easily accessed without specialized equipment. The Court denied the motion to suppress for two reasons: 1) because the officer believed “in good faith” that the warrant was only for certain types of searches, and 2) that deference must be given to State Courts in the evaluation of the evidence (the officer’s investigation and her perceptions were part
50 2014 U.S. Dist. LEXIS 86807.
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of the evidence submitted). The court recognized Riley’s validity, but concluded that these two reasons present a reasonable exception. The case In re The Search of Premises Known as: A Nextel Cellular Tel. with Belonging to & Seized from,51 dealt with a request for a warrant to search a cellular telephone. The telephone in question was seized incidental to a drug arrest, where 15 pounds of methamphetamine were also seized from the arrested person’s vehicle. The State requested the warrant in order to conduct a full forensic search of the telephone. The warrant was denied under Riley because it was too vague, and because it did not specify the particular protocol of what and how the search would be conducted. The individual’s vulnerability before the State’s power presents a large enough imbalance so as to proceed with caution when requesting permission to search of the data stored in a telephone, where the owner’s life is also stored there too. The State must provide precise parameters if it wishes to rummage through a telephone’s data, especially when dealing with smart phones. Another example is People v. Weissman, 52 where a court official caught Weissman taking pictures with his telephone’s camera during a criminal trial. Weissman was there as a spectator. The officer asked Weissman to show him the photographs in his telephone, confirming that he had taken pictures during trial in violation of the Court’s rules. Three charges of criminal contempt were filed against Weissman. Weissman moved to suppress the photographs under Riley because, when the officer asked him to show the photographs, he had not obtained a warrant. The court granted the motion to suppress. 51 2014 U.S. Dist. LEXIS 88215. 52 2014 N.Y. Misc. LEXIS 3831.
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Finally, in Commonwealth v. Stem,53 Stem was arrested because of a domestic violence incident. His cellular telephone was seized incidental to the arrest. Handcuffed and already in police custody, the arresting officer searched his telephone, where he found multiple photographs related to child pornography. These photographs were the basis for the later filing of 17 charges of child pornography against Stem. The accused moved to suppress the evidence (the photographs), because they were obtained without an order. Citing Riley, the lower court granted the motion to suppress, even though the photographs were the basis of the charges. The Court of Appeals sustained, and ordered the suppression of the photographs and of its fruits. Cases from Puerto Rico In Puerto Rico, in Pueblo v. López Colón,54 López was accused of homicide and violation to the Weapons Law. While investigating the scene of the crime, after having arrested López, the agents realized that there were security cameras pointed at the scene of the crime. It turns out that these cameras were installed in López’s home. Without knowing that that was his home, the agents asked the resident and wife of the accused, Mrs. Colón, for access to the camera recordings, to see if they contained any valuable information. Mrs. Colón not only gave them access to the video, but also let them take the DVR. In addition, Colón alerted them to the presence of López’s cellular telephone, stating that perhaps it might contain information relevant to the investigation. Colón informed them that she was the
53 96 A.3d 407 (2014). 54 KLCE201400971.
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owner of the telephone’s service account and voluntarily surrendered the device when the agents asked for it. López filed a motion to suppress evidence regarding his telephone’s data, stating that it was seized without a warrant. He also argued that his wife did not have the authority to comply with the officers’ requests regarding his telephone. The lower court denied the motion, explaining that Colón had the authority because she was the titleholder of the service account. It added that Colón surrendered the device voluntarily and without being subject to intimidation or coercion from the State. López first requested a reconsideration, which was denied by the lower court, before filing a certiorari. The Court of Appeals discussed the balance of interests between the reasonable expectation of privacy and the compelling interests of the State. It also went over the principle of reasonability and what constitutes express and tacit consent. It concluded that the motion to suppress could not proceed, since Colón, as the titleholder of the service account, had the authority to surrender López’s telephone. In addition, such surrender was voluntary, which validates the consent. The fact that López was the only user for that device does not annul Colón’s authority to dispose of it. Regarding Riley, mentioned in footnote #4, the Court of Appeals stated that it did not apply in this case. It explains that, in Riley, the telephone’s seizure was incidental to the arrest of the accused, he was the device’s owner, and did not consent to the State’s intervention. Here, the seizure was not incidental to the arrest and the owner surrendered it voluntarily.
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In the area of civil litigation in Puerto Rico, in Weber Carrillo v. ELA,55 Puerto Rico Supreme Court dealt with a controversy where the State investigated the identity of a person who was called by one of its agents from his official telephone right before and during a police operative. Upon identifying one number as belonging to reporter Carlos Weber, the State requested that Cingular, then a cellular services provider, provide the bill and the call history belonging to that telephone. Mr. Weber later learned that Cingular had indeed provided the requested information and sued for violation to his civil liberties and torts, among other claims. The Puerto Rico Supreme Court resolved that the State may not obtain a citizen’s call registry without previous notification or obtaining a court order to that effect, even in cases where the person whose logs are requested is not the target of a government investigation. An individual has a reasonable expectation of privacy over his or her call registry, particularly when that information is in the hands of a third party. The Court added: The right to privacy enjoys the highest hierarchy in our constitutional order and applies ex proprio vigore. The Puerto Rico Constitution protects people against abusive attacks against their personal lives and precludes unreasonable searches and seizures of an the home, papers and personal effects of its citizens. […] [I]t is imperative that we protect the privacy of a citizen who is not a suspect, when faced with the possibility that a third party that possesses his or her information might divulge it to any government agency that requests it.56 55 2014 TSPR 46. 56 2014 TSPR 46, pages 3-‐4. Original quote: “El derecho a la intimidad goza de la más
alta jerarquía en nuestro ordenamiento constitucional y aplica ex proprio vigore. La
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The Court emphasized that, in order to evaluate whether there has been a violation of federal Fourth Amendment rights or of those rights consigned in sections 8 and 10 and in article 11 of the Puerto Rico Constitution, it is necessary to determine if that person had a reasonable expectation of privacy over the place or the article to be searched, and if such an expectation is reasonable in light of the prevailing social criteria at the time. In this case, the fact that the entity that held the information was a third party that was not the target of an investigation weighed heavily, provoking the granting of judicial protection against the State’s intervention. The Court recognized that the telephone has become an essential tool to carry out personal transactions. The Court categorically rejected that, by providing information for billing purposes related to calls made, telephone company clients cease to have a reasonable expectation of privacy opposable to State requirements.57 The words exchanged during a telephone conversation are not the only source of information related to the content of our calls. Who we call, when we call, how frequently we call, and for how long we speak is the equivalent, undoubtedly, of content. We have no doubt that there is a subjective expectation of privacy over the call registry that a person makes, and that society deems that expectation to be reasonable. […] Constitución de Puerto Rico protege a las personas contra ataques abusivos a su vida personal y prohíbe los registros, allanamientos e incautaciones irrazonables sobre la persona, la casa, los papeles y los efectos de los ciudadanos y las ciudadanas. […] [S]urge la necesidad imperante de proteger la intimidad del ciudadano que no es sospechoso ante la posibilidad de que el tercero que posee información suya la divulgue a la agencia de gobierno que se la solicite. 57 2014 TSPR 46, page 9.
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[A] person has a reasonable expectation of privacy over his or her call registry. Therefore, the NIE should have notified plaintiff about the registry, or obtained a court order to obtain such information. 58 The Court concluded that the State had the right to investigate the identity of the person called by one of its agents from his official telephone just before and during the operative, as it was an entirely reasonable request, but it also concluded that the request for the surrender of the bill and the call registry of that cellular telephone was not reasonable. The bills illustrating how Mr. Weber used his telephone during the month of February were not reasonably relevant to the specific matter under investigation. These cases show that judicial forums have recognized the impact that the use of technology has had in the lives of citizens. In that context they have extended the right to privacy and the protection against searches without a warrant to cellular telephones and complementary equipment such as memory back-‐ups, placing the burden of proof upon the State to obtain a warrant. However, that order provides access to information stored by that equipment, sometimes unknowingly, which the state may retrieve to be later used against a citizen. The less knowledge citizens have about the information stored within their hardwares and its accessibility via forensic processes, the more vulnerable their individual rights will 58 2014 TSPR 46, pps. 10, 11. Original quote: “Lo hablado durante una conversación
telefónica no es la única fuente de información relacionada al contenido de nuestras llamadas. A quién llamamos, cuándo los llamamos, con qué frecuencia los llamamos y por cuánto tiempo hablamos con ellos equivale, sin duda, a contenido. No nos cabe duda que hay una expectativa subjetiva de intimidad sobre el registro de las llamadas que hace una persona y que la sociedad entiende que tal expectativa es razonable. […] [U]na persona tiene una expectativa razonable de intimidad sobre el registro de llamadas de su teléfono, por lo cual el NIE debió haberle notificado al demandante sobre el registro u obtener una orden judicial que le autorizara a requerir dicha información.”
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be in case that the State decides to act against them. Lack of knowledge about the full implications of using smart phones, social media and computers, regarding the data they generate which cannot simply be completely eliminated, creates inequality between citizens and disrupts access to justice. IV. Conclusion
The advantages of using technology and of the interconnectivity between
individuals, communities and nations are multiple and varied. On the subject of access to justice, it becomes evident that technology needs to help overcome inequalities in such access, by making available to citizens content such as: that a potential litigant may easily find legal information regarding his or her rights, apply electronically for judicial assistance, speak to a public defender from a tablet or personal computer, find and fulfill the necessary forms to submit in court, have access to the courts and to their electronic files in order to present a reply to a lawsuit and check his or her case’s progress, and use the internet to reach another lawyer at a larger city, should the case become complicated.59
However, all the positive potential for the use of new technologies and the
Internet to achieve access to justice is lessened by the risks to the citizens’ right to privacy. The lack of knowledge about the implications of accessing the operating system in a smart phone, PC, tablet or of accessing a Wi-‐Fi network in an airport or shopping center, places those who ignore their consumer rights or their right to privacy at a disadvantage. In the frenzy generated by the exchange of information, 59 James Cabral, Using Technology to Enhance Access to Justice, 26 HARV. J.L. & TECH. 241
(2012).
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data, and photographs in social media and the Internet, users forfeit their right to privacy guaranteed by the Puerto Rico and United States’ Constitutions.
It no longer is about talking about how many homes have computers and
whether or not they are connected to the Internet. Nor about continuing to increase the dizzying increase in ownership and use of smart phones. The reality is that each day more persons connect to the Web, purchase smart hardware, and store information in the cloud or in local memory back-‐ups. From that standpoint, it is time to recognize that the digital divide goes beyond the mere ownership of these hardwares and of access to the Web. The social chasm provoked by the inequality in cultural, economic and educational backgrounds place a sector of the population in a vulnerable position. Access to justice is limited by the digital divide when vulnerable sectors, unknowing of their rights, continually create digital evidence which may be used against them in the future. Not knowing the impact of that digital print aggravates the digital divide. It is imperative to articulate a proposal towards closing the digital divide discussed here, which incorporates the concept of access to justice and the full knowledge of rights opposable before the State as indispensable steps to eradicate inequality.
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Addendum 1 In the tests made regarding the Internet, broadband and interconnectivity, the 1999 reports entitled Falling Through the Net showed that, while Americans are connected to digital equipments, there existed a digital divide between certain demographic groups and regions.60 The report states: In examining the "least connected," households earning lower incomes, those with lower education levels, those located in the South, and those under the age of 25 have consistently had lower computer ownership rates. In particular, households earning low incomes and living in rural areas have repeatedly reported the lowest penetration rates. Rural black households have also remained the least likely group to own a PC (2.7% in 1984, 17.9% in 1998), followed by Hispanics living in central cities (3.1% in 1984, 21.4% in 1998). Variables in Computer Penetration. Income continues to strongly influence computer ownership rates. In 1984, households earning $75,000 and higher were far more likely -‐-‐ by twenty percentage points -‐-‐ to own a PC, than households earning less than $5,000. Since 1984, the gap in PC-‐ownership rates has continued to widen. Nearly 80% of households earning above $75,000 owned a PC in 1998 -‐-‐ sixty-‐four percentage points above (or five times more than) those at the lowest income level. Low-‐income households in rural areas have remained the least likely to own a computer. Race/Origin also remains closely correlated with computer ownership. In 1984, White households owned nearly twice the number of PCs as Black and Hispanic households. "Other non Hispanic households" trailed White households, on the other hand, by only 0.4 percentage points. Between 1984 and 1998, White households' penetration rates increased approximately fivefold, and all other race/ethnic groups experienced approximately a sixfold increase. Because of their similar growth rates, White households continued to own computers at a rate roughly twice that of Black and Hispanic households in 1998. Beginning in 1989, however, "other non Hispanic" households began to exceed all groups in PC ownership. Location has also influenced the rate of PC ownership among race/ethnic groups. Black and "other non Hispanic" households in rural areas have remained far less likely than those in urban areas or center cities to own a computer, while Hispanic households in central cities have lagged behind those in rural and urban areas. 60 US. Dept of Co., Falling through the Net: Defining the Digital Divide.
http://www.ntia.doc.gov/legacy/ntiahome/fttn99/contents.htm.
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Education remains closely correlated with computer ownership. Indeed, between 1984 and 1998, the gap between households with an elementary education and those with a college degree or higher has increased significantly. In 1984, the gap between these two groups was approximately fifteen percentage points; in 1998, the gap rose to approximately sixty-‐one percentage points. Household type also plays a significant role. Married couples w/children have remained the most connected group, particularly in urban areas. Non-‐family households have remained the least connected group, especially those in rural areas. One significant change is the rapid increase (more than eight-‐fold) in computer ownership among "family households without children." In 1984, that was the second least connected group; in 1998, it was the second most connected group. Also significant is the widening disparity between male and female-‐headed households. In 1984, there was little difference between the two (6.7% for female-‐headed versus 6.9% for male-‐headed). In 1989, however, PC penetration rates among male-‐headed households began to soar, creating a significant gap with female-‐headed households (31.7% for female-‐headed versus 35.0% for male-‐headed). This gap has only begun to narrow in recent years. Age is becoming less determinative of computer ownership. In 1984, the 35-‐44 year old group was significantly ahead of other age groups. In 1998, it was only marginally ahead of the 45-‐54 year old group and slightly ahead of the 25-‐34 year group. Most significantly, seniors appear to be catching up, due to a ten-‐fold increase in PC ownership between 1984 and 1998. In 1984, there were approximately six times as many with PCs in the 35-‐44 year category as in the 55+ category (15.5% compared to 2.5%); in 1998, that ratio dropped to a little more than double (54.9% versus 25.8%). Households under 25 are also gaining ground: in 1984, the 35-‐44 year group was three times as likely to own a PC as those under 25, but was about 1.7 times as likely in 1998. Those households under 25 living in rural areas are still the least likely, however, to own a PC. Region. The West has remained significantly ahead of other regions in computer ownership from 1984 to 1998. Significantly, the Northeast was the second highest connected region in 1984 (8.5%); but in 1997, the Midwest took second place (42.9%. Meantime, the South (particularly the rural areas) has lagged far behind other areas in PC penetration rates. Those Americans enjoying the greatest connectivity today are typically high-‐income households. Holding income constant, other
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highly connected groups include Whites or Asians, middle-‐aged, highly-‐educated, employed, and/or married couples with children, most often found in urban areas and the West. Conversely, the least connected generally are low-‐income, Black, Hispanic, or Native American,(3) senior in age, not employed, single-‐parent (especially female-‐headed) households, those with little education, and those residing in central cities or especially rural areas. These profiles generally prevailed during 1989-‐97 albeit some changes occurred (e.g., the South fell into last place among regions). Income. From 1989 through 1997, modem ownership increased for all income levels. Penetration rose tenfold in income brackets below $20,000 and increased at a decreasing rate in the higher income brackets, registering growth of 4.2 times at the $75,000 and over bracket. Despite greater growth rates by the lower income households, the percentage point gap between lowest and highest penetration (for the $5,000-‐9,999 group versus the wealthiest households) grew from 13.4 percentage points in 1989 to 56.5 percentage points in 1997. During this period, rural areas have generally experienced greater growth than central city and especially urban areas, but generally still trail the other two. Race/origin. During 1989-‐97, household modem penetration rose in every category of race/origin. White non-‐Hispanic, Black non-‐ Hispanic, "Other non Hispanic," and Hispanic each grew eightfold or more. Because White and "Other non Hispanic" households started from a higher proportion, the digital gap has widened considerably compared to Blacks and Hispanics. For example, the frontrunner "Other non Hispanic" group (e.g., American Indians, Aleuts, Eskimos, Asians, Pacific Islanders) outdistanced Blacks and Hispanics by more than 22 percentage points in 1997, compared to 2.0 and 2.22 in 1989. That pattern generally holds whether rural, urban, or central city, although White households have the highest penetration in rural areas (24.6%). Education. During the eight-‐year period (from 1989 to 1997), the digital gap mushroomed to more than a fivefold increase (from a 8.6 to a 46.3 percent point difference) between those households of the lowest and the highest educational levels. This result can be explained largely in terms of the very low penetration rates exhibited by the less-‐educated households in 1989. This pattern generally holds in rural, urban, or central city areas, with the largest disparity in rural environs.
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