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There is growing interest in the use of cell phones to track individuals to slow the spread of the virus. The concept, which has already been successful in other countries, alerts the user if he or she has been within 6 feet of someone who later tests positive. In theory, all alerted individuals would then be tested and self-quarantined if the tests returned positive.
As can be expected there is controversy surrounding the use of what some may consider an intrusive device. Will the government request that Apple and Google install these apps automatically with their next updates? Will the default setting be to turn on or off the application? Does the implementation of this application without the express consent of the user violate our right to privacy?
As with any alleged intrusion, there is a balancing act. The Courts consider the degree of the intrusion versus the benefit that we may derive from its use. Against this backdrop, the Courts will often determine whether there are less intrusive means by which to get the same result.
In fact, legal challenges facing data mining are not new. Norfolk Federal Court is hearing the case of United States v. Okello Chatrie. In this case, Mr. Chatrie, an alleged bank robber, is challenging the use of Google data, which the police used to determine his identify. The practice, referred to as Geofencing, allowed the police to obtain a warrant for a list of all individuals near the bank at the time of the robbery. Mr. Chatrie is seeking to have the data gained from the Geofencing, which was then used as evidence in his arrest, “suppressed” from use by the prosecution on the basis that it was unlawfully collected. Without that data, there is no arrest to begin with.
The Fourth Amendment guarantees that individuals have a right to a “reasonable expectation of privacy.” The general argument against the use of Geofencing data is that it infringes upon the reasonable expectation of the privacy of all the individuals who come up in a search. The Fourth Amendment further protects against unlawful searches and seizures. This includes individuals having a right to be free from unreasonable searches. The government’s access to the Geofencing data allows them to know where an individual, who is otherwise an innocent bystander and has thereby given the government no reason to be “searched,” was located on the date of the offense.
The reasonable expectation of privacy standard is a subjective standard that has a long history of litigation in the courts. It will be interesting to see how the Courts rule on Geofencing and other issues. Motions to suppress evidence based upon a violation of one’s Fourth Amendment rights are complex and are determined on a case by case basis.
This article was co-authored by our founder and lead Criminal Defense Attorney Daniel J. Miller and former attorney James Weaver. Dan is a Hampton Roads native and has spent 25 years representing clients in criminal defense matters in Virginia Beach and throughout Hampton Roads. James is an Associate Attorney at the firm. His practice focuses primarily on family law issues.
If you or a loved one is facing criminal charges and you would like to know whether your Fourth Amendment rights, or any other rights, have been violated, give us a call today at (757) 267-4949 for a free consultation.