December, 2012

Police Want Wireless Providers to
Retain Text-Message Content

According to an article on, the Major Cities Chiefs Police Association ("MCC"), and other law enforcement organizations, have urged Congress to require that wireless providers store text messages for at least two years.  The MCC notes on its website that no specific time-period was requested, however.

Text-messaging is increasingly popular.  The article cites one study which estimated there are over 6 billion text-messages sent each day in the U.S.  Text-messages are also increasingly significant in civil and criminal cases.  The article referenced "one 2009 case in Michigan [where] wireless provider SkyTel turned over the contents of 626,638 SMS messages, a figure described by a federal judge as ‘staggering.’ "

The different wireless providers historically have had widely differing policies for retaining text-messages.  For example, as of 2010, AT & T/Cingular, T-Mobile, and Sprint did not retain the content of text messages.  Verizon kept the content for five days, and Virgin Mobile kept the content for 90 days.  The providers did keep the metadata, such as the phone-numbers, for longer periods, ranging from 90 days to 18 months, and, in the case of AT & T, up to seven years.

Sources:  Declan McCullagh, "Cops to Congress: We need logs of Americans' text messages,", December 3, 2012: MCC news update: MCC November 28, 2012, letter to Congress: ews/final__le_ecpa_senate_judiciary_letter__nov_2012.pdf; -38/cops-to-congress-we-need-logs-of-americans-text-messages/

Challenges to Government Seizures of
Electronic Devices at Borders Continue

In an article in the Guardian, Glenn Greenwald cites several examples of laptop and personal information seizures at U.S. borders.  One notable example recounts the experience of Lisa M. Wayne a criminal defense lawyer and past president of the National Association of Criminal Defense Lawyers.  Ms. Wayne, who had a connecting flight to catch on a return trip from Mexico, gave her computer to the authorities.  Mr. Greenwald described Ms. Wayne as having reacted "only with paralysis and compliance" in "dutifully" handing over the laptop to be searched.  Ms. Wayne was quoted as saying, "It was very clear to me that the longer I objected or interrogated them, the longer I was going to be detained, and I had a connecting flight ... It's an intimidating experience.  It was not consensual other than, you comply with the rules."

Another example referenced by Mr. Greenwald was the experience of Laura Poitras, a documentary filmmaker, who said she had been detained more than 40 times on returning to the U.S., questioned for hours, had her notes and credit card receipts copied and, on one occasion, had her camera, laptop and cellphone held for forty-one days.  Ms. Poitras, who had produced films about anti-U.S. insurgents in Iraq and dissidents elsewhere, now does her film-editing outside of the U.S. before she returns.

A New York Times article by Susan Stellin described pending lawsuits by the ACLU challenging such border searches; the suits seek a ruling requiring the government have a "good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices," according to ACLU lawyer Catherine Crump.  The Customs and Border Protection search policies [see link below] allow for seized items to be held for a "reasonable time," the items may be held at an off-site location, and, if the owner declines to provide a password for access, the electronic devices may be held until access is obtained.

Several examples were highlighted in Ms. Stellin's article, including that of Ms. Wayne, described above, and including that of an unnamed traveler who was certain that his laptop was searched due to his having been placed on a sex offender registry because of a conviction he received when he was 17 years-old and dating a 15-year-old.

According to the New York Times article, in the eleven months between October 1, 2011, and August 31, 2012, 11.9 million travelers were subjected to secondary searches at the borders, and there were 4,898 electronic device searches [currently averaging about 36,000 secondary searches and twelve electronic devices searches each day].  In the prior year, there were 12.1 million secondary searches and 4,782 electronic device searches.

Some limits on the government's seizures may result from the lawsuits, according to the article.  One of the ACLU lawsuits, involving a computer programmer with ties to Pfc. Bradley Manning -- who is accused of providing thousands of classified documents to Wikileaks -- survived a motion to dismiss last spring.  The District Court Judge held that the government did not need reasonable suspicion to search a laptop, but also held that the plaintiff had First Amendment rights.  The plaintiff's camera, laptop and USB were seized and held for over seven weeks.  Professor Patrick E. Corbett, a professor of criminal law and procedure at the Thomas M. Cooley Law School in Lansing, Michigan, was quoted as saying, “The District Court basically said you don’t need individualized suspicion to search an electronic device at the border.  What they were troubled with was the fact that the government held these devices for 49 days.”

Sources:  Glenn Greenwald, "Laptop seizures by US government highlight 9/11-era climate of fear,", December 4, 2012: http://www. stitution-and-civil-liberties; Susan Stellin, "Border Agents' Power to Search Devices is Facing Increased Challenges in Court,", December 3, 2012: ness/court-cases-challenge-border-searches-oflaptops-and-phones.html?pagewanted=1&_r=1&hpw&Custo msand Border Protection: xp/cgov/travel/admissibility/

Texas Student Loses Challenge to
RFID Monitoring

A fifteen year-old high school student in Texas challenged a school district policy requiring students to wear radio-frequency identification ("RFID") chips, complaining that it represented the "mark of the beast."  She was suspended, subsequently obtained a temporary injunction allowing her back in school, but ultimately lost in federal court.  She refused to wear the badge, even though the school offered to remove the RFID chip.  The high school is one of two in the school district involved in a pilot program, started in 2012, requiring all students to wear the RFID-equipped badges.  The RFID chip monitor the wearer's location, so schools can better track attendance, a task necessary for funding.

Source:  "Pupil Hernandez, who refused to wear RFID,  loses appeal,", January, 9, 2013:  Related:  Criminal Defense Newsletter, June, 2012, Vol. 35, Issue 9, p. 7 10053_35cdn09.pdf#search=%22RFID%22.

by Neil Leithauser
Associate Editor