The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360.

The Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705 — post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring — do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

The Government’s alternative argument — that if the attachment and use of the device was a search, it was a reasonable one — was forfeited because it was not raised below.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment originally appeared on NJ Family Issues on January 23, 2012.

Last fall, Facebook quietly added a feature to Account Settings called “Download Your Information.” Users wanting to collect a copy of their Facebook wall posts, photos, videos, messaging, friends lists, and other personal profile content can click a link and request that it all be neatly packaged in a Zip file for download.

Users initiating the download request will be greeted with a message that it may take Facebook “a little while to gather all your photos, wall posts, messages and other information.”

In short order, the user gets an e-mail advising that the information is packaged and ready for download. Then, all the user need do is supply their password to verify their identity and click “Download Now.” What arrives is a compressed local snapshot of the user’s Facebook environment offering an easy-to-navigate interface.

[SOURCE]

Special Thank You to Ann F. Kiernan, Esq., who brought this to my attention.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Facebook account content originally appeared on NJ Family Issues on February 24, 2011.

This case involves a profile posted on a social media networking site, MySpace. Such Web sites, which include Facebook, LinkedIn, Plaxo, and Twitter, are increasingly popular vehicles for the dissemination of personal information posted on individualized profiles. Social media Web sites offer users multi-faceted avenues to “network” with fellow users, along with control over the content of their profiles.

In Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 424 n.3 (2009), the court explained: “Social networking sites and blogs are sophisticated tools of communication where the user voluntarily provides information that the user wants to share with others. . . . The user can choose what information to provide . . . .” Moreover, the Brodie Court recognized that these Web sites offer users the opportunity to post messages for the world to see, as well as the option “to tightly control the dissemination of [posted] information.” Id.

Typically free to users, social networking sites “can serve as an online newsletter or as a personal journal – where an individual can post concerns, ideas, opinions, etc. – and it can contain links to web sites or can use images or video.” Id. at 424. But, in the absence of limitations imposed by the user, “whatever is posted [is] available to the world at large.” Id. at 424 n.3. Moreover, the development of Web sites like YouTube allows users to upload streaming video, so that personal statements may be recorded and disseminated. Thus, such online networking communities have led to an expanding universe of shared information, and have been aptly characterized as “soda fountains for the twenty-first century.” See, e.g., John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 OR. L. REV. 1201, 1219-24 (2007) (reviewing the history of social networking sites).

The design and purpose of social media sites make them especially fertile ground for “statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical)[.]” Lorraine, 241 F.R.D. at 569. For that reason, both prosecutors and criminal defense attorneys are increasingly looking for potential evidence on the expanding array of Internet blogs, message boards, and chat rooms. See, e.g., Nelson, supra, at 13 (“It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”); Seth P. Berman et al., Web 2.0: What’s Evidence Between “Friends”?, 53 B.B.J. 5, 6 (Jan/Feb 2009) (social networking sites “may record people’s thought processes and impressions in unguarded moments, exactly the sort of evidence that can be invaluable during litigation”); Kathrine Minotti, Evidence: The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession, 60 S.C. L. REV. 1057, 1059-61, 1066-68, 1071-73 (2009) (“Prosecutors are gathering information from social networking web sites for evidence. . . .”).

The anonymity features of social networking sites may present an obstacle to litigants seeking to authenticate messages posted on them. See, e.g., Paul W. Grimm et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L. REV. 357, 370-71 (2009) (“Chat room and text or instant messaging ‘dialogues’ . . . pose unique challenges to authentication due in large part to the fact that they typically are created by parties using anonymity-protecting ‘screen names’ on websites where the host cannot be assumed to know the content.”). That is the issue we encounter here: whether the State adequately established the author of the cyber message in question.

Despite the pervasive popularity of social networking sites and their potential as treasure troves of valuable evidence, some state’s appellate courts have not yet addressed the issue of authenticating anonymous or pseudonymous documents printed from social media Web sites.

In the leading case of Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), Magistrate Judge Paul Grimm, a noted authority on electronic discovery, offered wellreasoned methods to authenticate various types of electronically stored information, including e-mails, text messages, chat room logs, and “Internet Website Postings.” Although Lorraine recognized that such evidence “may require greater scrutiny than that required for the authentication of ‘hard copy’ documents,[]” the court suggested that the existing rules governing authentication provide an adequate analytical framework to determine the admissibility of such evidence. Id. at 542-43.

In particular, the Lorraine Court cited Federal Rule of Evidence 901(b)(4), the federal analogue to Md. Rule 5-901(b)(4), as “one of the most frequently used to authenticate e-mail and other electronic records.” Id. at 546. It observed: “‘[T]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety,’ including authenticating an exhibit by showing that it came from a ‘particular person by virtue of its disclosing knowledge of facts known peculiarly to him[.]’” Id. (quoting FED. R. EVID. 901(b)(4) advisory committee’s note). See generally Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1, 7 (2009) (explaining why “the existing rules of evidence are adequate to the task of addressing questions about the admissibility of such electronic evidence”).

Maryland Rule 5-901(b)(4), like its federal counterpart, permits authentication of electronic communications based on the content and the circumstances of those messages.

Circumstantial evidence may be sufficient to establish authorship of an electronic message without the use of technological data. See also State v. Thompson, 777 N.W.2d 617, 623 (N.D. 2010) (holding that evidence that recipient of threatening text messages was familiar with the defendant’s phone number and distinctive electronic signature was sufficient to authenticate messages as having been sent by the defendant); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) (considering content of e-mails printed from a corporate Web site and attached to authenticating affidavit in granting a preliminary injunction).

A chat log is a verbatim transcript of a private “real time” online conversation between site members, which can be authenticated by either of the two participants. In contrast, social networking profiles contain information posted by someone with the correct user name and password, with the intent that it be viewed by others. Therefore, a proponent should anticipate the concern that someone other than the alleged author may have accessed the account and posted the message in question. Cf., e.g., In re K.W., 666 S.E.2d 490, 494 (2008) (although victim admitted that the proffered MySpace page was hers, she claimed that her friend posted the answers to the survey questions that defendant sought to introduce as impeachment evidence with respect to her claims of rape). See also St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999) (“There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet . . . hackers can adulterate the content on any website. . . .”).

A pseudonymous social networking profile might be authenticated by the profiled person, based on an admission.

Decisions as to authentication of evidence from chat rooms, instant messages, text messages, and other electronic communications from a user identified only by a screen name as instructive to the extent that they address the matter of authentication of pseudonymous electronic messages based on content and context.

Social media profiles may be circumstantially authenticated in the same manner as other forms of electronic communication – by their content and context.

The inherent nature of social networking Web sites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal background information, and lifestyles. This type of individualization may lend itself to authentication of a particular profile page as having been created by the person depicted in it.

See related Blog Post, published in the New Jersey Family Law blog.

See also: The Web Means the End of Forgetting, By JEFFREY ROSEN, Published in The New York Times.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A profile posted on a social media networking site can be used as evidence originally appeared on NJ Family Issues on July 20, 2010.

In this case, an audio recording was admitted in evidence after a Driver hearing.

The great weight of authority throughout the country sanctions the use of sound recordings where the matter contained therein is competent and relevant. See Annotation, 58 A.L.R.2d 1024 (1958). We adopt that view. As a condition to admissibility, however, the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. Annotation, supra, at pp. 1027, 1032-36; as to confessions, see the many cases cited at pp. 1046-47.

A wire recorder which catches the actual voice of an accused and of his questioner, may be an invaluable aid to a court and jury where the issue of voluntariness of a confession is raised. See Williams v. State, 93 Okl. Cr. 260, 226 P.2d 989 (Crim. Ct. App. 1951). In fact, the recording may be more satisfactory and persuasive evidence than the written and signed document. In all situations, however, the trial judge should listen to the recording out of the presence of the jury before allowing it to be used. In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted. See Leeth v. State, 94 Okl. Cr. 61, 230 P.2d 942 (Crim. Ct. App. 1951).

[State v. Driver, 38 N.J. 255 (1962).]

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

New Jersey sanctions the use of sound recordings at trial where the matter contained therein is competent and relevant originally appeared on NJ Family Issues on June 30, 2010.

Rule 1:2-2 requires all proceedings in court to be recorded verbatim, including “the content of an audio or video tape played during the proceedings” unless a transcript of the audio or video tape is marked into evidence.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

All proceedings in court must be recorded verbatim, including the content of an audio or video tape played during the proceedings unless a transcript of the audio or video tape is marked into evidence originally appeared on NJ Family Issues on May 14, 2010.

Stengart v. Loving Care Agency, Inc., __ N.J. __ (2010); A-16-09; March 30, 2010:

[NOTE: This case was previously reported in this Blog: "Workplace computers and the attorney client privilege – Part 2;" and "Workplace computers and the attorney client privilege."]

The attorney-client privilege is enshrined in history and practice. Fellerman v. Bradley, 99 N.J. 493, 498 (1985) (“[T]he attorney-client privilege is recognized as one of ‘the oldest of the privileges for confidential communications.’”) (quoting 8 J. Wigmore, Evidence § 2290, at 542 (McNaughton rev. 1961)). Its primary rationale is to encourage “free and full disclosure of information from the client to the attorney.” Ibid. That, in turn, benefits the public, which “is well served by sound legal counsel” based on full, candid, and confidential exchanges. Id. at 502.

The privilege is codified at N.J.S.A. 2A:84A-20, and it appears in the Rules of Evidence as N.J.R.E. 504. Under the Rule, “[f]or a communication to be privileged it must initially be expressed by an individual in his capacity as a client in conjunction with seeking or receiving legal advice from the attorney in his capacity as such, with the expectation that its content remain confidential.” Fellerman, supra, 99 N.J. at 499 (citing N.J.S.A. 2A:84A-20(1) and (3)).

E-mail exchanges are covered by the privilege like any other form of communication. See Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 553 (App. Div. 2003) (finding email from client to attorney “obviously protected by the attorney-client privilege as a communication with counsel in the course of a professional relationship and in confidence”).

The reasonable-expectation-of-privacy standard derives from the common law and the Search and Seizure Clauses of both the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. In addition, a right to privacy can be found in Article I, paragraph 1 of the New Jersey Constitution. Hennessey v. Coastal Eagle Point Co., 129 N.J. 81, 95-96 (1992).

The common law source is the tort of “intrusion on seclusion,” which can be found in the Restatement (Second) of Torts § 652B (1977). That section provides that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement, supra, § 652B. A high threshold must be cleared to assert a cause of action based on that tort. Hennessey, supra, 129 N.J. at 116 (Pollock, J., concurring). A plaintiff must establish that the intrusion “would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.” Restatement, supra, § 652B cmt. d.

As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component. See State v. Sloane, 193 N.J. 423, 434 (2008) (analyzing Fourth Amendment); In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005) (analyzing common law tort). Moreover, whether an employee has a reasonable expectation of privacy in her particular work setting “must be addressed on a case-by-case basis.” O’Connor v. Ortega, 480 U.S. 709, 718, 107 S. Ct. 1492, 1498, 94 L. Ed. 2d 714, 723 (1987) (plurality opinion) (reviewing public sector employment).

A party has the right to prevent disclosures by third persons who learn of her communications “in a manner not reasonably to be anticipated.” See N.J.R.E. 504(1)(c)(ii).

A person waives the privilege if she, “without coercion and with knowledge of [her] right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.” N.J.R.E. 530 (codifying N.J.S.A. 2A:84A-29).

The conclusion that a party had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy. See Hennessey, supra, 129 N.J. at 99-100; Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 284, 290-92 (1985); Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72-73 (1980).

RPC 4.4(b) provides that “[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.” According to the ABA Model Rules on which RPC 4.4(b) is patterned, the term “‘document’ includes email or other electronic modes of transmission subject to being read or put into readable form.” Model Rules of Prof’l Conduct R. 4.4 cmt. 2 (2004).

It is an error to not set aside arguably privileged messages once an attorney realizes they are attorney-client communications, and to fail either to notify its adversary or seek court permission before reading further.

See related Blog Post, published in the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Workplace computers and the attorney client privilege – Part 3 originally appeared on NJ Family Issues on March 30, 2010.

1. May I Record My Telephone Conversations In New York To Help My Lawsuit?, posted by David Rich, Esq. in the New York Business Litigation and Employment Attorneys Blog.
2. A Practical Guide to Taping Phone Calls and In-Person Conversations in the 50 States and D.C., published by The Reporters Committee for Freedom of the Press
3. Formal Ethics Opinion 01-422, published by the American Bar Association
4. The Ethics of Recording Telephone Conversations, published by David Hricik, Esq.
5. SECRET TAPING OF CONVERSATIONS IN EMPLOYMENT DISPUTES, by Douglas E. Dexter, Esq. and Darnley D. Stewart, Esq.
6. Legal Aspects of Recording Telephone Conversations: A Practical Guide, published by Pingram Software

NOTE: Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Tape Recordings originally appeared on NJ Family Issues on January 3, 2010.

Picture by Irish Typepad

Rule 1:2-2, which generally requires a verbatim record of all proceedings, specifically requires that “[u]nless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court’s exhibit and retained by the court.”

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Unless a transcript of an audio or video tape played during a court proceeding is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceeding originally appeared on NJ Family Issues on September 15, 2009.

Picture by SarahCartwright

A photograph must be authenticated before it can be submitted as evidence at trial. N.J.R.E. 901 provides:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

[The N.J. Rules of Evidence are available HERE]

The procedural hurdle of authenticating a photograph is not a high one. “Generally, to justify admissibility of a photograph, it must accurately represent the conditions existing at the time of the happening of the incident in question.” Saldana v. Michael Weinig, Inc., 337 N.J. Super. 35, 46 (App. Div. 2001) (citing N.J.R.E. 901; Garafola v. Rosecliff Realty Co., 24 N.J. Super. 28, 42 (App. Div. 1952)). Further, “[t]he authentication of a photograph requires verification by a qualified individual, one who has made personal observations, thereby establishing that the conditions reproduced existed at the time of the [incident].” Id. at 46-47.

“The admissibility of any relevant photograph rests on whether the photograph fairly and accurately depicts what it purports to represent, an evidentiary decision that properly lies in the trial court’s discretion.” Brenman, supra, 191 N.J. at 21. See also State v. Polito, 146 N.J. Super. 552, 558 (App. Div. 1977) (stating that “[b]efore ruling on the admissibility of photographs, it is incumbent upon the court to determine whether they accurately depict the subject at a time relevant to the issues involved in the litigation”), certif. denied, 76 N.J. 243 (1978).

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Be aware, however, that photographs may be fakes; i.e., they may not be showing the truth — see, e.g.: Faked Photographs: Look, and Then Look Again, By BILL MARSH, Published in The New York Times on August 22, 2009.

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For more information, see:

• Advanced Trial Handbook – Demonstrative Evidence, published on The Caught.net Website
• Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata, by Joe Kashi, published by the American Bar Association
• Case Blurb: [Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)]; Authenticating digital photographs, published in the Post Process – Everything to do with E-discovery & ESI blog
• Photographs as Evidence, By Sumner Kenner, 60 Central Law Journal 406, May 26, 1905
• Evidence: practice under the rules By Christopher B. Mueller, Laird C. Kirkpatrick
• PREPARING AND USING DEMONSTRATIVE EVIDENCE, Presented by Andrew J. Rossetti, Esq.

See also my prior Post: Like any other evidence tendered at trial, photographs must be relevant; that is, they must have a tendency in reason to prove or disprove any fact of consequence to the determination of the action

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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Photographs as evidence originally appeared on NJ Family Issues on August 23, 2009.

http://www.youtube.com/watch?v=5fYwjJ6QEMQ

Depositions ( Part 1 of 2) – LawWebTV


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http://www.youtube.com/watch?v=mvHnEowIkHQ

Depositions (Part 2 of 2) – LawWebTV


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http://www.youtube.com/watch?v=kq75_zE9r7A

Sample Deposition

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, NJ.

What is a Deposition? originally appeared on NJ Family Issues on July 7, 2009.