Editor's note: This is the second in a two-part series.

Leonard Deutchma

In last week's article, I discussed the findings of the Pennsylvania Superior Court's nonprecedential decision in Commonwealth v. Mason, in which the Wiretapping and Electronic Surveillance Control Act (the Wiretap Act), was invoked.

In this part, I discuss how the digital world has altered our reasonable expectation of privacy.

The most prominent of the matters has been the judicial analysis of circumstances where law enforcement has obtained from cellphone providers records that allow for "cell tower tracking" of defendants to place them at the scenes of crimes. As most of us are now aware, cellphones, which probably are used more frequently than old-fashioned desk phones, send their signals across bands of "cell towers" that now take up a considerable amount of the planet's landscape. Earlier cell towers were fashioned in an attempt to look like trees, but because they were made of iron, were taller than the trees around them and had innumerable plates on their "branches" with which to catch and send along cellphone signals, they stood out rather than blended in. To facilitate the sending and receiving of a cellphone call, cellphone providers set up those phones to "check in" with the closest tower as the phone—and, ostensibly, the user carrying it—moved from place to place; in this way, when the user received a call, the central server into which the call came knew where to send it, and how to keep it going without interruption as the user moved and the closest tower to the phone—and with it, the place to where the phone call should be sent—changed.

Cellphone providers typically did not make an effort to keep the records of the users' cellphones' movements, but neither did they employ applications to "wipe" servers of the records. Rather, as with so much digital information generated internally by digital devices, those records remained on the servers until the space they took up was needed for new records to be written. That the old records remained for an undetermined stretch of time meant that, if law enforcement requested them before the space in which they resided on the servers was overwritten, they could be produced.

The legal question arose as to what was needed for law enforcement to obtain those records. The eventual answer was that a subpoena under the Wiretap Act was needed. It was clear from the start of the analysis that, absent some sort of legal compulsion, the cell carriers did not have to turn over any records to law enforcement, or to anyone else. Courts then determined that two rights of privacy were in play regarding the production of these records: the carriers' right of privacy in their records, and the users' right of privacy in what those records revealed about the users' movements. Thus, law enforcement needed to obtain an order legally requiring that the cellphone carriers turn over their records, and that order had to be supported not only by proof that the records would be relevant to an ongoing investigation, but also by proof establishing that there was reasonable suspicion to believe that evidence of the users' movements was relevant to that investigation.            

Underlying the latter requirement was the belief that the users' movements in public somehow became private in the digital age. Many courts were simply troubled that cellphones, created by private carriers and in no way required by the government, could become an easily used instrument of "big brother" tracking the movements of citizens in public. When opponents noted that no court order was ever required to allow law enforcement to track a person's movements through physical surveillance, even if it meant using a team of agents to track a person over days, weeks or months, this led many courts to go back (disingenuously, in my opinion) to that pre-digital age and hold that law enforcement involved in "prolonged physical surveillance" also needed to obtain a court order, as the shape of a person's life was revealed in his public movements and that shape was private unless and until the person chose to reveal it to law enforcement, in a letter to a newspaper, in a book, etc.   

I believe that two strong factors converged to produce this "privacy in public" legal belief. One factor is the legitimate fear of "big brother." One need not know much of politics and history to understand and find credible those fears that democracies hold of autocratic states, and to credit the belief that autocratic states exercise and maintain their powers by, inter alia, focusing 24/7/365 on subjects whom the state fears will challenge it, affording those subjects no relief from that focus, and focusing upon all subjects in that same manner so as to discourage any subject from trying to become one who will challenge the state. Crediting the "privacy in public" legal position is one way of preventing such autocracy from taking hold in the United States.

The other factor follows from the age of the judiciary when the "privacy in public" legal belief was articulated and became prevalent. When the world was becoming digital, those in charge of it were, typically, either those who had been children during World War II or baby boomers. Both groups well remembered not having a television in their homes growing up, when films went from black and white to color, when their family finally got their first television, when telephone calls went through the operator, and so on. To that generation, the digital world was an invasion of privacy one assumes in the same way that someone growing up in the country assumes privacy in their living space in a way that someone growing up in a city does not.

As the digital revolution was "destroying" privacy in the eyes of boomers, the law was needed to reset the balance between public and private that had existed prior to the revolution. Interpreting the federal and state Wiretap Acts as they have been interpreted was an easy way to help restore that balance without going through the nightmares otherwise known as getting new legislation passed or changing cultural behavior. It should be noted that, as boomers give way to millennials, the world will again look different. To millennials (and younger), everything is and has always been digital, which means that there has always been a sense that one could make a statement to, or be viewed by, the public at large (think tweeting and other social media as but one means of so doing) at will. millennials and other users have loved the ability to observe and communicate to the world and have ranged from loving to simply putting up with the world's ability to observe them.

Big Brother and the Nanny Cam

The nanny cam issue truly tests the thinking behind the millennials' understanding of a "reasonable expectation of privacy." Such video and audio recording is done by parents in their own homes in order to monitor those entrusted with taking care of the parents' children. If one puts aside for a moment the lawfulness of such recording and focuses simply on the motivation of the parents and the logic of taking the steps outlined to achieve the results the parents wish to achieve, one would conclude that the motivation is stellar and the results direct. If one questions the nanny cam under federal or state Wiretap Acts, those with no stake in the outcome would conclude that it is hard to understand how an employee inherently has a right of privacy against a parent in the parent's home and when the parent has entrusted the employee with his or her children and is recording actions or sounds pertaining to the supervision of the parent's child. "Big Brother" here would not be an authoritarian government to be feared; rather, he would be the legal guardian of a 3-year-old who needs the attention and protection of that guardian even when he or she has employed a nanny to take care of him while the guardian is at work or otherwise engaged. 

Conclusion

One can make a compelling argument, articulated by Superior Court President Judge Jack Panella in his concurring and dissenting opinion, that under current wiretap law, neither the video recording of the defendant nor the audio recording of sounds of slapping and other sounds in the video should have been suppressed, the former because such was not an "interception" under the Wiretap Act, the latter because such was not "evidence derived" from the recording of defendant's utterances, which utterances Panella agreed should be suppressed. One can, however, go farther and find that defendant had no reasonable expectation of privacy in the home, and thus the recording of any words uttered by her was as acceptable as recording her making the same utterances if she were striking the children in a public park. What constitutes what is "reasonable" in a reasonable expectation of privacy depends upon the what society is prepared to accept as reasonable, and that changes over time. Today's society is very comfortable with the nanny cam; the courts should follow suit.    

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cyber crime, fraud, drug trafficking and other offenses. Contact him at [email protected].