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Court Compares Car Crash Data To CSLI, Cellphone Contents; Tells Cops Best Bet Is To Always Get A Warrant

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The Supreme Court's ruling in the Carpenter case came as something of a surprise. The nation's courts seemed unwilling to start paring back the Third Party Doctrine, but the expansion of people's digital footprints following the widespread adoption of smartphones proved to be too big to ignore. The ruling was narrow -- finding only that the acquisition of historical cell site location info (CSLI) was a search under the Fourth Amendment -- but it possibly contains broader applications.The way it stands now, law enforcement needs a warrant to collect CSLI from cell service providers -- the first hole that's been poked in the Third Party Doctrine since its inception almost 40 years ago. If not for the Riley decision -- the one that recognized phones no longer resembled "containers" or "pockets," but rather contained a detailed depiction of a person's entire life -- the Supreme Court may not have arrived at this conclusion. But it was that decision that first conjured up the image of the government happily discovering people were carrying around personal tracking devices loaded with info 24 hours a day. Grabbing large quantities of CSLI -- 127 days in Carpenter's case -- turned cellphones into ad hoc ankle bracelets, allowing the government to reconstruct someone's movements over a period of months using only a subpoena.The lower courts are now starting to apply the Carpenter ruling as defendants use this decision to challenge evidence against them. In this case reviewed by the Georgia Court of Appeals, the warrantless acquisition didn't involve cell site location info, but rather a vehicle's black box. Here are the facts of the case, from the decision [PDF]:

On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were killed in the collision. Mobley was charged with reckless driving, two counts of homicide by vehicle in the first degree (alleging that he caused the deaths of W. M. and C. F. through the act of reckless driving), and speeding (alleging that he drove a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone). Mobley moved to suppress evidence that was obtained from the airbag control module (“ACM”) in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment.
Inevitable discovery was the call, with the trial court finding the ACM would have been removed and its data accessed following the crash, so the one-day delay between the original access and the search warrant was negligible. The appeals court dives a little deeper into the issue, bringing along Carpenter for the ride, but not until the concurring opinion. It first takes a look at the implications of the Supreme Court's Riley decision on the warrantless access to otherwise "hidden" info.
Mobley [...] contends that we should follow the reasoning employed by a Florida appellate court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. The Worsham court found that ACMs “document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible ‘mechanical’ parts of a vehicle.” Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that because the recorded data is not exposed to the public, and because the data is difficult to retrieve and interpret, there is a reasonable expectation of privacy in the data.
The court finds the access of ACM data does not approach the level of privacy intrusion warrantless access to cellphone's contents would. What a driver does on a public road is observable by others, even if not to the level of detail an ACM provides.
We find that, under the circumstances in this case, Mobley did not have a reasonable expectation of privacy in the data from his vehicle’s ACM. See generally Bowling, supra. While an outside observer cannot ascertain the information regarding the use and functioning of a vehicle with the same level of precision as that captured by the ACM, there are outward manifestations of the functioning of some of the vehicle’s systems when a vehicle is operated on public roads. For example, a member of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s brakes are being employed by seeing the vehicle slow down or stop or the brake lights come on, by hearing the sounds of sudden braking; and observe whether the driver is wearing a seatbelt. There is no reasonable expectation of privacy in such information because an individual knowingly exposes such information to the public.[...]Information regarding the mechanical functioning of the vehicle and its systems is qualitatively different from photographs, financial information, and other such personal data that may be found on a cell phone.
The Carpenter connection would be long-term data collecting by the ACM, which would allow the government to reconstruct a person's movements over a long period of time. But, as far as the court can tell, most -- if not all -- ACMs only record pertinent info at the time the airbag deploys. It is not a tracking device, wittingly or unwittingly.The court signs off on its opinion by warning law enforcement that the best route is to always obtain a warrant, if possible.
We therefore limit our holding to the particular facts of this case, and note that future treatment of this issue will likewise depend on the specific facts of the cases under consideration. As such, we reiterate the strong preference for searches to be conducted pursuant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1) (788 SE2d 132) (2016), and caution law enforcement officers faced with an investigative need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining a search warrant before retrieving that information.
The concurring opinion notes a few things. First, some ACMs may collect more data than others, making these much more analogous to the CSLI obtained in the Carpenter case. That alone should prompt officers to seek a warrant before downloading the data -- especially when vehicles have been towed and held for a crash investigation. This removes any exigency and allows the search to continue on the court's time, rather than whenever officers feel like it.It also notes getting a warrant first would be the safer choice as the removal of the ACM may very well qualify as a government trespass onto private property. The automobile exception may excuse cursory searches and inventory of a car's contents if it removed from the scene of a stop, but it does not permit the government to obtain data from a vehicle's electronics.The opinion reiterates the warning handed out by the majority: Get a warrant.
[L]aw enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exacerbated by the fact that the decisions of the Supreme Court of the United States establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” But as the Supreme Court emphasized once again in Carpenter v. United States, there remains a tried and true means of safely traversing these crossroads when law enforcement’s specific obligations under the Fourth Amendment are in doubt—get a warrant. This default position seems especially wise in light of the “equilibrium-adjustment” the Supreme Court of the United States recently made in Carpenter.
As for any arguments that new warrant requirements will harm law enforcement efficiency, the court waves them away by explaining the Fourth Amendment isn't supposed to make things easy for the government.
And while obtaining a warrant may not always lend itself to expediency, our republic’s Fourth Amendment jurisprudence has “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.
It also notes that if anyone's losing the Tech Arms Race, it's citizens, not law enforcement. They're at the mercy of a judicial system that isn't known for its turn rate on tech-implicating cases.
I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward.
The main takeaway from Carpenter is this: Get. A. Warrant. Why take a chance a court may find whatever third party data you built a case on to be protected under the Fourth Amendment? A warrant -- even if badly/broadly written -- will generally score law enforcement some points in the "good faith" category, insulating obtained evidence from attempts to have it suppressed.

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Elsevier Will Monitor Open Science In EU Using Measurement System That Favors Its Own Titles

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Back in April, we wrote about a curious decision to give the widely-hated publisher Elsevier the job of monitoring open science in the EU. That would include open access too, an area where the company has major investments. The fact that the European Commission seemed untroubled by that clear conflict of interest stunned supporters of open access. Now one of them -- the paleontologist Jon Tennant -- is calling on the European Commission to remove Elsevier, and to find another company with no conflicts of interest. As Tennant writes in the Guardian:

How is it reasonable for a multi-billion dollar publishing corporation to not only produce metrics that evaluate publishing impact [of scientific articles], but also to use them to monitor Open Science and help to define its future direction? Elsevier will be providing data through the monitor that will be used to help facilitate future policy making in the EU that it inevitably will benefit from. That's like having McDonald's monitor the eating habits of a nation and then using that to guide policy decisions.
Elsevier responded with a blog post challenging what it calls "misinformation" in Tennant's article:
We are one of the leading open access publishers, and we make more articles openly available than any other publisher. We make freely available open science products and services we have developed and acquired to enable scientists to collaborate, post their early findings, store their data and showcase their output.
It added:
We have co-developed CiteScore and Snowball Metrics with the research community -- all of which are open, transparent, and free indicators.
CiteScore may be "open, transparent, and free", but Tennant writes:
Consider Elsevier's CiteScore metric, a measure of the apparent impact of journals that competes with the impact factor based on citation data from Scopus. An independent analysis showed that titles owned by Springer Nature, perhaps Elsevier's biggest competitor, scored 40% lower and Elsevier titles 25% higher when using CiteScore rather than previous journal impact factors.
In other words, one of the core metrics that Elsevier will be applying as part of the Open Science Monitor appears to show bias in favor of Elsevier's own titles. One result of that bias could be that when the Open Science Monitor publishes its results based on Elsevier's metrics, the European Commission and other institutions will start using Elsevier's academic journals in preference to its competitors. The use of CiteScore creates yet another conflict of interest for Elsevier.As well as writing about his concerns, Tennant is also making a formal complaint to the European Commission Ombudsman regarding the relationship between Elsevier and the Open Science Monitor:
The reason we are pursuing this route is due to the fact that the opportunity to raise a formal appeal was denied to us. In the tender award statement, it states that "Within 2 months of the notification of the award decision you may lodge an appeal to the body referred to in VI.4.1.", which is the General Court in Luxembourg. The notification of the award was on January 11, 2018, and it was exactly 2 months and 1 day later when the role of Elsevier as subcontracted was first publicly disclosed. Due to this timing, we were unable to lodge an appeal.
In other words, it was only revealed that Elsevier was the sub-contractor when it was too late to appeal against that choice. A cynic might almost think those behind the move knew people would object, and kept it quiet until it was impossible under the rules to appeal. Open science? Not so muchFollow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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