February 18, 2010
In a recent decision, the Ohio Supreme Court has ruled that police officers need to obtain a warrant in order to search a cell phone. This decision by the Ohio Supreme Court takes into consideration the fact that cell phones today go far beyond the means of basic communication. They are mini computers that store large amounts of personal information. From this point forward, the personal information becomes a protected privacy right, at least in the State of Ohio.
Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.
The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4th Amendment to the US Constitution.
The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.
Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.
Picture courtesy of the Daily Iowan.
December 11, 2009
Anthony Davis wrote an article in the New York Law Journal on November 4th summarizing the state of the law with regard to privacy matters when one is using his work computer to send personal e-mails.
The Scott court also held that even if the attorney had a standard notice at the bottom of each e-mail that the contents of the e-mail were to be private between the attorney and the client, that such notice is ineffective to save the communication from the client’s constructive waiver of the privilege resulting from the client’s decision to use his office computer to communicate with his attorney. Thus, the court suggested that attorneys should advise their clients that they should not use their office computers for communications between them, especially if the attorney feels that there is some risk that the employer might have a motivation to look into the employee’s personal e-mails.
On the other hand, a New Jersey court, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009), came to the opposite conclusion. In that case, the court held that even an employer’s e-mail policy granting it access to all employees’ e-mails on their computers, will not be valid to waive the employee’s attorney-client privilege. The employer-defendant in that case has appealed that case to the New Jersey Supreme Court, which just heard arguments on the case. When that court comes to a decision in the matter, at least New Jersey will have come up with a definitive conclusion on the matter.
For the time being, in New Jersey, and especially in New York, you should not send any e-mails, using one’s work computer, that you would like to keep private. This is especially true if you are writing your attorney regarding a case against the employer on whose computer you are sending the e-mail.
It is better to either wait until you have access to your home computer after work to send private e-mails, or to use a cell phone, iPhone, or (privately owned) Blackberry if you have to send private e-mail during business hours.
As always, if you need help with any kind of personal injury, contract, or other litigation, you can call our office 24/7 at 800-344-6431 or send us an e-mail (not necessarily on your boss’ computer!)
Picture courtesy of The Office Rat.