Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

By Rebecca Myhr Szajna*

 

I.  INTRODUCTION

“[S]o Johnathan, what did you do today?  Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

-Tweet sent by an Arkansas juror regarding his jury’s verdict in a 2009 civil lawsuit.[1]

 

Technology and juries just do not mix.  At least in the way that the current American legal system is structured.  The advent of new technologies that have created instant access to information and communication pose a serious threat to the current jury system.  One of the foundations of the American legal system is the right to a jury trial: “a jury composed of competent, fair, and impartial individuals, unbiased and free from outside influence.”[2]

A fundamental tenet of this system is that the evidence presented by the parties at trial is the only evidence allowed to be considered by the jury.  As Justice Oliver Wendell Holmes stated at the turn of the last century: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”[3]  Before modern technologies, this rule was relatively easy to follow; however, with the invention of smartphones, iPads, and Facebook, this rule is facing serious challenges from today’s jurors.  Jurors can now access information about litigants, case facts, legal terms, and solicit feedback from “friends” with the touch of a button.

II.  HOW NEW TECHNOLOGIES THREATEN JUROR IMPARTIALITY

Over half of all Americans own a smartphone.[4]  As of 2010, seventy-four percent of American adults used the Internet.[5]  The number of Facebook users is over 1.1 billion per month.[6]  Apple sold three million iPads in the first eighty days of release, the fastest-selling electronic in history.[7]  Cities across the country provide free wireless Internet access to their communities.[8]  Everywhere we turn, people are talking, texting, or reading from a smartphone or tablet.  This proliferation of new technology has changed the fundamental ways by which we communicate and access information.

Our current adversary system is structured to provide two opposing sides the opportunity to argue that its side should win the case based on the evidence presented at trial; jurors are expected to decide a case based on: (1) what they learn from the two opposing arguments and (2) the deliberations of the group of jurors.  With the advent of new technologies, however, jurors can now do their own research, find their own evidence, and solicit feedback from others outside of the jury box.  Before these technologies, there were instances of misconduct where jurors visited crime scenes or went home and looked up the definition of a legal term in the dictionary.[9]  However, new technologies have made it easier than ever to access information that undermines what happens inside the courtroom with information from outside the courtroom.

Moreover, in conjunction with the rise of new technologies, which has created greater access to information and communication, is our reliance on the instant access they provide.  When we want to know the answer to something, we google it.  We expect to be able to find the answer to a question or post a Facebook status update at our whim.  For many, leaving home without their phone is unimaginable.  Internet addiction has even become a treated psychological disorder.[10]  Therefore, it is not surprising that the instances of jurors going beyond the courtroom to engage in Internet-related misconduct are on the rise.

Since 1999, at least ninety verdicts have been challenged because of alleged Internet-related juror misconduct, and more than half of them were between 2008 and 2010.[11]  Since this information was published in late 2010, one can only imagine how the numbers have grown in the last three years.

III.  EXAMPLES OF INTERNET-RELATED JUROR MISCONDUCT

There are many examples of Internet-related juror misconduct, where jurors have conducted factual and legal Internet research, blogged or tweeted about the juror experience, or engaged in improper contact with people involved in the case.

A.  Factual Research

As just one of many examples, jurors have attempted to look up a defendant’s prior criminal history.[12]  Whether such evidence is presented at trial is typically determined after the parties have filed motions in limine, argued over the merits, and the judge has decided the issue based on the law.  If jurors choose to look up a defendant’s prior convictions, then this important legal process has been subverted by the independent research conducted by the juror, which is outside of the controls established by the system.

B.  Legal Research

When jurors choose to conduct their own research into the legal issues disputed in a case, there can be severe consequences when the jurors either misunderstand the legal research, find erroneous information, or use the information in an improper way.  A particularly problematic example is when  jurors look up sentencing ranges, where the knowledge of the sentence then impacts the jury’s decision on guilt.[13]

C.  Sharing the Juror Experience

At first blush, sharing one’s experience as a juror seems the least harmful Internet-related juror behavior.  However, the fact that jury deliberations take place in secret is one of the fundamental aspects of the jury system.  If juror deliberations were made public, then they could be subject to undue external influence.  The secrecy of the jury room protects the sanctity of the decision-making process.  By blogging or tweeting about one’s experience, it opens up the jury room to outside influences and makes the decision-making vulnerable to public pressure.[14]

D.  Improper Contact with Case-Related Individuals

People v. Rios is a recent and prime example of how a simple Facebook “friend request” can possibly influence the outcome of a trial and, at the very least, call into question the validity of a criminal jury verdict.[15]  In that case, a juror “friend requested” through Facebook one of the witnesses who appeared in a wrongful death criminal case.  When the witness realized that it may be improper, he alerted the court to the friend request.  The court was then forced to engage in an investigation as to whether the actions of the juror caused unfairness to the defendant and whether a mistrial should be declared.  The time, effort, and cost associated with such an investigation harms not only the litigants in that case, but also the system as a whole.

IV.  WHY JURORS ENGAGE IN MISCONDUCT

In many instances of internet-related “misconduct,” the jurors are actually well-intentioned.  Most jurors who conduct factual or legal research do so because they feel that they need better or more information than was provided to them at trial.  Additionally, the drive and, some may argue, compulsion to be connected to others through social media has become natural.  When people update their Facebook status more than once a day, it is hardly surprising that they would want to share a rather atypical experience in their life, like jury duty.  The desire to engage in this kind of behavior, which has the impact of undermining the entire trial process, is not ill-intentioned, but rather misplaced.  Therefore, it is imperative that the proposed solutions to technology-related behavior by jurors take into account the “why” of Internet juror misconduct as much as the “how.”

V.  PROPOSED SOLUTIONS

So how do modern-day courts handle the problem of modern-day juror misconduct?  There have been many proposed solutions to the rise of Internet-related juror misconduct; one thing is clear, however: a holistic, multi-faceted approach is required in order to combat the potential of juror misconduct in this modern technological era.  A one-step approach will not suffice, where each proposed solution will not fix the problem alone.  Only a variety of solutions used in conjunction with one another will combat the effects of technology on juror behavior.  Because investigating juror misconduct after the verdict is so difficult, the focus needs to be on preventing the harm before it occurs.[16]

A.  Voir Dire

Many attorneys have begun to question potential jurors about their Internet activity before they become jurors.[17]  While this makes sense and seems to be good lawyering, it begs the questions: Is digging into a potential juror’s online presence a violation of privacy rights, and, moreover, once it has been established that a potential juror is someone who has a high online presence, what do the litigants do with that information?  Given the unease and uncertainty of conducting extensive voir dire on jurors’ Internet presence and usage, this may be a somewhat helpful, but rather limited solution to the problem.

B.  Jury Instructions

Jury instructions need to be better-written, easier to understand, more explicit, and provide explanation for the prohibition against case-related Internet usage.  Instructions alone will never be able to quench jurors’ curiousity or eliminate the desire of some jurors to disregard them, but they are certainly another piece of the puzzle.[18]  The key is that the instructions must not only explain in layperson terms what is prohibited, but also must educate the jurors and explain why the prohibition is necessary.  Providing an explanation as to how external research or improper Internet use can damage the entire trial process will be more effective in combatting the misconduct.

C.  Penalties for Violating Jury Instructions (As Well as Alerting Jurors to the Penalties)

Many argue that a stronger approach is necessary to combat the serious threat of improper Internet usage by jurors in the form of stronger enforcement processes, such as penalties or fines for jurors who violate their oaths by improperly using new technology while serving as jurors.  Holding jurors in contempt and punishing them or fining them for misconduct can act as a deterrent to jurors and decrease the likelihood that jurors may risk such punishments by engaging in misconduct.  One scholar suggests using sequestration as a stick, threatening jurors with the possibility of sequestration if they cannot be trusted on their own to abide by the rules.[19]  While providing stiff penalties and enforcement tools to combat Internet-related misconduct is important, it is most useful to make those punishments known and understood in the context of explaining why Internet misconduct can be so harmful.  Jury instructions should make clear both the reasons why Internet usage is prohibited and then the subsquent punishments if those rules are violated.

D.  Limit Internet Access of Jurors

Many courts have begun prohibiting use or possession of cell phones in the courtroom or even the courthouse.[20]  While sequestration, where jurors are monitored 24/7, would be the best way to prohibit improper Internet use, the cost and burden of sequestration makes this a viable option in only the most extreme of cases, such as the trials of O. J. Simpson, George Zimmerman, and Casey Anthony.  Taking away the use of smartphones, iPads, and laptops while jurors are in the courthouse makes sense and can eliminate the temptation to use technology inappropriately during proceedings.  However, it will not work alone, as jurors can certainly look up anything on the Internet after they leave the courthouse.  Additionally, the anxiety created by such a measure could leave many technology-addicted jurors in shambles and have negative consequences on the juror decision-making process.[21]

E.  Implement Jury Reforms

Many of the reasons jurors engage in misconduct can be reduced or eliminated by implementing some of the reforms that have long been suggested to improve the jury system.[22]  While these reforms were not recommended as a solution to technology-related juror misconduct, new technologies may be the impetus to push forward some of the jury reforms that have long been suggested.  These reforms include: allowing jurors to ask questions, take notes, and deliberate with each other throughout trial.[23]  New technologies have created more active jurors; thus, allowing jurors to become more involved in the trial process can address the juror activity that has emerged through Internet misconduct.[24]  If jurors have other options to fill the needs that they are currently using the Internet to fill (i.e. to educate themselves about the case and connect with others), then these reforms could decrease the desire of jurors to go outside of the jury box.

F.  Better Lawyering

As with many problems related to juries and the work they do in deciding cases, many of these problems can be addressed through better lawyering.  Yes, improved jury instructions and court-implemented juror reforms are necessary, but rather than leaving it up to the court to fix the problem, lawyers should take it upon themselves to make it less tempting for jurors to go beyond the walls of the courtroom to engage in improper behavior.  If lawyers do their job in anticipating and answering juror questions, then jurors may not feel as compelled to seek outside information or input.[25]

G.  An Additional Consideration: Juror Stress

The stressful impact of jury service on jurors is an emerging area of concern for the legal system.[26]  One unanticipated effect of new technologies on jurors can be seen in the form of juror stress.  Even if the previously discussed reforms are implemented, none of the proposed solutions address the negative impact of restricting juror access to the Internet.  Even if jurors are better instructed and educated about the need to refrain from engaging in improper Internet-related behavior, it does not necessarily make it easier to obey.  The need to be plugged-in and connected 24/7 can be an overpowering need for many.[27]  How will restricting Internet behavior affect jurors’ psyches and abilities to focus on the case at hand?[28]  In fashioning a response to the increase in juror misconduct resulting from new technologies, the response will be incomplete without addressing the anxiety caused by reducing technology use in jurors, if even for a day.  The system cannot ignore the notion of juror stress and how the restriction of Internet activities can impact juror well-being and, ultimately, their decision-making abilities.

VI.  CONCLUSION

A few things are clear when it comes to Internet-related juror misconduct.  One is that this is a multi-faceted problem that requires a multi-faceted solution.  And, two, the impact of restricting the natural, normal, and compelling Internet behavior of jurors may threaten not only the impartiality of jurors, but also their well-being and decision-making capabilities.  Given the ever-increasing use of new technology, this is an area that is in desperate need of empirical study.[29] And, with newer technologies on the horizon, the only way for the American legal system to continue to function as intended is by confronting these challenges head-on and by adapting the jury system to meet these technologies as they develop.

 


* Adjunct Professor, University of Illinois College of Law. Stanford Law School, J.D. 2002; The Illinois School of Professional Psychology, M.A. 2008; Arizona State University, B.S. 1999. Much thanks to Angelica Nizio and the rest of the editors of the the Journal of Law, Technology & Policy.

[1] Amanda McGee, Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301, 308 (2010).

[2] Kate L. Dysart & Camalia M. Kimbrough, #Justice? Social Media’s Impact on the Jury System, A.B.A. (Aug. 22, 2013), http://apps.americanbar.org/litigation/committees/trialevidence/articles/summer2013-0813-justice-social-media-impact-us-jury-system.html.

[3] Patterson v. Colorado, 205 U.S. 454, 462 (1907).

[4] Dara Kerr, Over Half of American Adults Own Smartphones, CNET (June 6, 2013, 1:01 PM), http://www.cbsnews.com/8301-205_162-57588043/.

[5] Lee Rainie, Pew Research Ctr., Internet, Broadband, and Cell Phone Statistics 1 (2010), available at http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_December09_update.pdf.

[6] Associated Press, Number of Active Users at Facebook over the Years, Yahoo News (May 1, 2013, 7:27 PM), http://news.yahoo.com/number-active-users-facebook-over-230449748.html.

[7] John Paczkowski, Who’s Your Daddy? IPad Rewriting Adoption Records, All Things Digital (Oct. 5, 2010, 4:50 AM), http://allthingsd.com/20101005/whos-your-daddy-ipad-rewriting-adoption-records/.

[8] Michael Springer, 57 Cities Now Have Free Wi-Fi, but They’re Not Thinking Big Enough, PolicyMic (Oct. 9, 2013), http://www.policymic.com/articles/66891/57-cities-now-have-free-wi-fi-but-they-re-not-thinking-big-enough.

[9] Caren Myers Morrison, Can the Jury Trial Survive Google?, Crim. Just., Winter 2011, at 5.

[10] McGee, supra note 1, at 309.

[11] Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, Reuters (Dec. 8, 2010, 3:23 PM), http://www.reuters.com/article/2010/12/08/us-internet-jurors-idUSTRE6B74Z820101208.

[12] People v. Garcia, No. C049205, 2007 WL 29949, at *5 (Cal. Ct. App. Jan. 5, 2007); see also Nick Madigan, Juror’s Misconduct Leads to New Trial in Gang Killing, Balt. Sun (Sept. 12, 2010), http://articles.baltimoresun.com/2010-09-12/news/bs-md-marshall-newtrial-20100911_1_rival-gang-member-pasadena-denver-lanes-three-jurors (vacating a Baltimore gang member’s conviction after juror performed an Internet search on the defendant’s prior criminal record).

[13] Morrison, supra note 9, at 7.

[14] Timothy J. Fallon, Mistrial in 140 Characters or Less? How the Internet and Social Networking Are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstra L. Rev. 935, 938–39 (2010); J. Paul Zimmerman, A Practical Guide to the Development of Jury Charges Regarding Social Media, 36 Am. J. Trial Advoc. 641, 645–49 (2013).

[15] People v. Rios, No. 1200/06, 2010 WL 625221, at *2 (N.Y. Sup. Ct. Feb. 23, 2010).  The case arose out of the deaths of two New York firefighters.

[16] Fallon, supra note 14, at 945–53.

[17] McGee, supra note 1, at 317–18.

[18] Fallon, supra note 14, at 954–67.

[19] Id. at 965–67.

[20] Ralph Artigliere, Sequestration for the Twenty-First Century: Disconnecting Jurors from the Internet During Trial, 59 Drake L. Rev. 621, 638 (2011).

[21] Id. at 639–40; see also Matt Richtel, Attached to Technology and Paying the Price, N.Y. Times (June 6, 2010), http://www.nytimes.com/2010/06/07/technology/07brain.html?pagewanted=all&_r=0.

[22] See, e.g., Akil Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169 (1995) (providing various suggestions for jury reform).

[23] Artigliere, supra note 20, at 632; Morrison, supra note 9, at 13.

[24] Nicole L. Waters & Paula Hannaford-Agor, Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System 2–3 (2012), available at http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Jurors_%2024-7_REV011512.ashx.

[25] Artigliere, supra note 20, at 633–634.

[26] See, e.g., J. Chris Nordgren & Matthew W. Thelen, Helping Jurors Manage Stress: A Multilevel Approach, 82 Judicature 256, 259–62 (1999) (explaining ways for jurors to manage stress during the trial).

[27] See Richtel, supra note 21; Henry Wallop, People ‘Anxious’ When Cut Off from Internet, Telegraph (Oct. 13, 2009, 7:00 AM) http://www.telegraph.co.uk/technology/news/6307460/People-anxious-when-cut-off-from-internet.html (detailing the anxiety many people feel when cut off from technology).

[28] See Artigliere, supra note 20, at 627 (stating that taking away technology from people evokes unexpected reactions and concerns).

[29] Id. at 624–25.

“Your Bitcoins Shall Pay the Forfeit of the Peace”: Why What the Government Chooses To Do With Seized Silk Road Bitcoins Matters

By Derek A. Dion*

I.  The Silk Road Bust

On October 2, 2013, the FBI arrested the “Dread Pirate Roberts” and shut down the Silk Road—a website that served as the Amazon.com of the criminal underworld, selling any matter of illegal drugs online.[1]  Dread Pirate Roberts, also known as Ross Ulbricht, purportedly founded the website.  Silk Road could only be accessed by using The Onion Router, or TOR, which served to anonymize the buyers and vendors on the website.  To further obscure the identities of those engaged in the black market, Silk Road did not make trades in U.S. Dollars or any other government currency.  Instead, the website dealt in Bitcoins—an electronic currency that can be used relatively anonymously.  When the FBI shut down the Silk Road, it immediately seized 26,000 Bitcoins from various vendors on Silk Road and seeks to seize another 600,000 Bitcoins from the Dread Pirate Roberts himself.[2]

“Bitcoin is an electronic form of currency unbacked by any real asset and without specie, such as coin or precious metal.”[3]  Bitcoin exchanges allow users to trade the e-currency for legal tender.  An algorithm regulates the Bitcoin supply, monitoring the peer-to-peer network and the number of coins in the system.  Bitcoins are kept in electronic wallets and accessed using a combination of public and private keypairs, effectively serving as a password.  Bitcoin’s use is questionably legal,[4] and the currency is used by a small community of dedicated users.

As Bitcoins are electronic, the FBI cannot “seize” them the way that it could traditional currency.[5]  Instead, the FBI must seize the servers that hold the wallets on Silk Road’s website or have access to the private keypairs of the illicit Bitcoins.  The FBI has yet to publicly confirm what it will do with the seized Bitcoins.  It has suggested that it may liquidate them after the judicial process is over.[6]  What the FBI chooses to do with the seized Bitcoins matters.  It will serve as a signal to the Bitcoin community regarding whether the U.S. government sees Bitcoin as contraband in-and-of itself or merely an otherwise legal asset that was illegally gained from a website that sells drugs.

This Column’s purpose is to recommend that the FBI liquidate the Bitcoins instead of destroying or freezing them.  It will begin with an examination of the statutes that govern how the FBI may use or dispose of assets under forfeiture law.  The Column will next address the effect that the Silk Road bust had on Bitcoin prices and what that suggests about how the market perceives the currency’s value.  Finally, this Column will examine the implications of government action on Bitcoin.

II.  Forfeiture Law

Statutes and regulations govern what an agency may do with seized property.  The property first goes through a forfeiture proceeding, either criminal or civil, which determines the final disposition of a citizen’s rights with regards to an asset.[7]  Once the asset has been forfeited to an agency, its disposition depends on the type of asset.  For example, when the government seizes currency, the agency has permission to keep the forfeited property for its official use.[8]  For most assets, including foreign currencies, the agency may choose whether it keeps, sells, or destroys the property.  For example, the FBI could trade seized foreign currency for U.S. Dollars through a currency exchange.  Alternatively, the FBI could destroy property for which it has no use.

For certain assets, though, Congress gives the agency less freedom.  For example, forfeited drug paraphernalia must be destroyed unless it is used for law enforcement or educational purposes.[9]  This, of course, makes sense.  It would be bad policy to allow say, the DEA, to be in the business of selling drug paraphernalia to the public, even if there is a willing market and the DEA could make money on the transaction.

Some items are treated like contraband even when they are not.  For example, an agency is not permitted to sell forfeited firearms to the public.[10]  If the agency does not sell the firearms to another agency and does not plan to keep them for law enforcement or educational purposes, they must be destroyed.  Alcohol is treated similarly.[11]  Note that firearms and alcohol, unlike drug paraphernalia, are not illegal per se.  However, Congress has concluded that it is bad policy for the government to partake in selling firearms and alcohol back to the public because those items are legally and morally controversial.

When it comes to the Silk Road Bitcoins, the FBI is free to take whatever action it likes.  The U.S. Code and Code of Federal Regulations make clear that assets not specifically excepted (such as firearms, alcohol, and drug paraphernalia) may be liquidated by an agency.  But the question is: Should the FBI publicly sell the Bitcoins back to the public when Bitcoin’s legal status as a currency remains unclear or should the FBI treat Bitcoins more like it treats non-contraband exceptions like alcohol or firearms?  To answer this question effectively, the government must first consider where the value of Bitcoin lies.

III.  What Governs Bitcoin’s Value?

The price of Bitcoin was immediately affected by the closure of Silk Road.  Prior to the shut down on October 2, Bitcoin’s price on Mt. Gox,[12] one of the largest and most popular Bitcoin exchanges, was $145.70 per coin.[13]  After the FBI announced Ross Ulbricht’s arrest, the price plunged to $109.76.  However, by the end of the next trading day, the price had rebounded to $124.00.  Since then, Bitcoin’s price has begun to soar far above its open on October 2.[14]

It is easy to hazard why Bitcoin’s price initially fell.  The FBI alleged that Silk Road generated sales worth approximately 9.5 million Bitcoins compared to the approximately 11.8 million Bitcoins in circulation.  Obviously, Silk Road played a significant role in the circulation of Bitcoins in the system.  But what explains Bitcoin’s recovery after the crash?  Here are three potential answers:

A.  Users Believe Bitcoin’s Legal Status Is Stable

One reason Bitcoin crashed may be the assumption that the FBI would declare Bitcoin illegal after it shut down Silk Road.  In fact, the FBI has done the opposite.  By suggesting it may liquidate the Bitcoins, the FBI sends a signal that it does not consider Bitcoin contraband.  The recovery could be due to the fact that the FBI had an opportunity to declare Bitcoin illegal and did not.  One of the main reasons Bitcoin is unstable as a currency is the market’s concern that the currency may be considered illegal.

B.  Bitcoin Has Value Beyond Criminal Activity

Another view of the crash is premised on the notion that Bitcoin’s primary value is fostering illegal activity.  When Silk Road was shut down, it destroyed a major source of value for Bitcoin, thus causing a drop in price.  However, if this premise was true, what explains the recovery in price?

There is no doubt that Bitcoin has vast potential for advancing criminal behavior.[15]  But if the market truly had believed that Bitcoin’s value was its capacity for criminal behavior, its price would have gone down with Silk Road’s closure and would likely have remained there.  But instead, the recovery suggests that the market believes in value beyond illegal activity.  And if that is true, removing Silk Road creates separation between Bitcoin and clear, well-known illegal behavior.

C.  Supply Is Restricted

The final theory explaining Bitcoin’s recovery relies on supply and demand.  The FBI may end up removing approximately 625,000 Bitcoins from the marketplace.  As noted above, there are approximately 11 million Bitcoins in existence.  Therefore, the FBI could remove as much as five or six percent of the entire market of Bitcoins.  Thus, by reducing the supply of Bitcoins in the system, one would expect the price to go up.

These three explanations should inform government action.  The FBI must understand that the market may see value in Bitcoin beyond its criminal uses, the volatility of Bitcoin can be quelled by regulating e-currency without outlawing them, and the FBI has seized enough currency to affect prices.

IV.  What Government Action “Says” to the Market

No matter how the FBI decides to dispose of the seized Bitcoins, it will telegraph a message to the Bitcoin market.  Some will argue that the FBI may not mean to “say” anything with an action, but that is not the point.  No matter what the FBI does, the niche community of Bitcoin users will interpret its action as a statement on the legitimacy and viability of the currency.  The FBI has three options: sell the Bitcoins, destroy the Bitcoins, or keep the Bitcoins.

A.  Option 1: Sell

The FBI could trade the Bitcoins for U.S. Dollars on an exchange.  This option communicates to the market that the FBI does not classify Bitcoin as contraband and demonstrates non-active acceptance of the currency.  But a massive, unstructured sell-off will cause price fluctuations to an already unstable currency.  Also, the FBI could face criticism for liquidating Bitcoin if it must use exchanges that are generally unregulated.[16]

B.  Option 2: Destroy

The FBI’s second option is to destroy the seized Bitcoins.  This signals to the market that the FBI views Bitcoin as contraband or semi-contraband (such as liquor or guns).  It also wastes millions of dollars that the FBI could claim for the seizure.  Additionally, as a practical matter, the Bitcoin system is designed to recognize coins in the system and accordingly release new coins at a particular decreasing rate.  In effect, destroying a significant number of coins will simply cause the system to recognize the loss and adapt accordingly.

C.  Option 3: Keep

Finally, the FBI could keep the Bitcoins indefinitely.  Such a gesture would signal to the market that the government is either planning on keeping the Bitcoins to manipulate the market, it plans on eventually seizing all Bitcoins in the system, or it is simply unsure of what it should do.  In either case, this option would leave the Bitcoin market unsettled as it waits to see what the FBI will do.

V.  Recommendation: “Sell”

The FBI should follow through with its earlier comment and liquidate the seized Bitcoins at the end of judicial proceedings.  This author has argued before that Bitcoin should not be treated as contraband per se, and, instead, federal and state governments should pursue viable regulation, particularly of the Bitcoin exchanges.[17]  The goal should be a stable currency used for purposes outside illegal behavior.  To encourage this, the FBI should publicly announce a structured cash-out of the Bitcoin, so as to disturb the market as little as possible.  It should also only deal with exchanges that are licensed as money service businesses and presently comply with FinCEN.  Destroying the Bitcoins wastes value and unnecessarily treats the coin as contraband.  Keeping the seized coins unsettles a nascent and niche market that the government should instead work to stabilize.  This proposal gives the FBI the opportunity to capture the value that it seized from the Silk Road bust, while also signaling to the market that the government seeks to create a stable and legal Bitcoin marketplace.

 


* Derek Dion is in the final year of a joint-degree JD/MBA program at University of Illinois. He thanks the Illinois Journal of Law, Technology & Policy for their willingness to publish a follow up Bitcoin piece.

[1] Andy Greenberg, End of the Silk Road: FBI Says It’s Busted the Web’s Biggest Anonymous Drug Black Market, Forbes (Oct. 2, 2013, 12:35 PM), http://www.forbes.com/sites/andygreenberg/2013/10/02/end-of-the-silk-road-fbi-busts-the-webs-biggest-anonymous-drug-black-market/.

[2] Alex Hern, FBI Struggles to Seize 600,000 Bitcoins from Alleged Silk Road Founder, Guardian (Oct. 7, 2013, 6:31 AM), http://www.theguardian.com/technology/2013/oct/07/fbi-bitcoin-silk-road-ross-ulbricht.

[3] SEC v. Shavers, No. 4:13-CV-416, 2013 WL 4028182, at *1 (E.D. Tex. Aug. 6, 2013).  The criminal case against the Dread Pirate Roberts is United States v. Ulbricht, 13-mg-023287 (S.D.N.Y. 2013), and the civil forfeiture case is United States v. Ulbricht, 13-cv-06919 (S.D.N.Y. 2013).

[4] I have written about Bitcoin more extensively in another article that addressed legal and regulatory challenges.  See generally Derek A. Dion, I’ll Gladly Trade You Two Bits on Tuesday for a Byte Today: Bitcoin, Regulating Fraud in the e-Conomy of Hacker-Cash, 2013 U. Ill. J.L. Tech. & Pol’y 165.

[5] Adam Gabbat & Dominic Rushe, Silk Road Shutdown: How Can the FBI Seize Bitcoins?, Guardian (Oct. 3, 2013, 9:40 AM), http://www.theguardian.com/technology/2013/oct/02/bitcoin-silk-road-how-to-seize.

[6] Kashmir Hill, The FBI’s Plan for the Millions Worth of Bitcoins Seized from Silk Road, Forbes (Oct. 4, 2013, 3:16 PM), http://www.forbes.com/sites/kashmirhill/2013/10/04/fbi-silk-road-bitcoin-seizure/.

[7] See 18 U.S.C. § 981 (2006) (civil); 18 U.S.C. § 982 (criminal).

[8] 40 U.S.C. § 1306(c).

[9] 21 U.S.C. § 863(c).

[10] 26 U.S.C. § 5872.

[11] 26 U.S.C. § 5688(a)(2).

[12] Bizarrely, Bitcoin has different prices on different exchanges, which would seem to lead to an easy arbitrage opportunity.  However, the differing prices may depend on the liquidity of the exchange.  Donald Marron, Do Bitcoins Violate a Fundamental Economic Law?, Christian Sci. Monitor (Sept. 3, 2013), http://www.csmonitor.com/Business/Donald-Marron/2013/0903/Do-bitcoins-violate-a-fundamental-economic-law.

[13] Alex Hern, Bitcoin Price Plummets After Silk Road Closure, Guardian (Oct. 3, 2013, 11:41 AM), http://www.theguardian.com/technology/2013/oct/03/bitcoin-price-silk-road-ulbricht-value.

[14] Emily Spaven, Bitcoin Price Soars to Highest Level Since April Bubble, CoinDesk (Oct. 21, 2013, 5:53 PM), http://www.coindesk.com/bitcoin-price-soars-highest-level-since-april-bubble/.

[15] Dion, supra note 4, at 183–87.

[16] For example, Mt. Gox’s Dwolla account was seized by the Department of Homeland Security via court order from the District of Maryland for operating as a money-transmitting business without a license.  Vitalik Buterin, MtGox’s Dwolla Account Seized for Unlicensed Money Transmission, Bitcoin Mag. (May 16, 2013), http://bitcoinmagazine.com/4641/mtgoxs-dwolla-account-seized/.  Mt. Gox later received a money transmitter license from the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).  Vitalik Buterin, MtGox Gets FinCEN MSB License, Bitcoin Mag. (June 29, 2013), http://bitcoinmagazine.com/5560/mtgox-gets-fincen-msb-license/.

[17] For example, by requiring exchanges to record certain personal information of those who trade through them.

Digital Seizures: Why Wurie and Riley May Not Adequately Resolve Remote Destruction of Evidence

Digital Seizures: Why Wurie and Riley May Not Adequately Resolve Remote Destruction of Evidence

By Kevin Lammers*

I.  INTRODUCTION

Later this term, the Supreme Court will decide whether or not to grant certiorari in two cases involving the search of cell phones by law enforcement pursuant to the search-incident-to-arrest doctrine.[1]  The prevailing view amongst legal commentators is that the Court will grant certiorari in one of these cases to resolve whether, amongst other issues, these cell phone searches fall under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.[2]  Because the Supreme Court has never applied this exception to the remote destruction of evidence—such as deleting iPhone data from another device—these cases will require the Justices to engage in a delicate balancing act between an individual’s right to the privacy of their cell phone’s contents and the necessity of law enforcement to preserve digital evidence.  The following discussion will illuminate one possible solution to that balancing act.

II.  HOW CAN DIGITAL EVIDENCE BE DESTROYED REMOTELY?

The issues in Wurie and Riley are particularly difficult to resolve because the exigent circumstances doctrine was created at a time when remote destruction of evidence was not possible.  Cloud computing technology (and the Internet in general) has introduced the possibility that digital evidence (e-mails, documents, text messages) might be removed from a computer without the suspect having access to that physical computer.  Seizure of the item containing the evidence—traditionally viewed as a less intrusive method for preserving evidence[3]—does not resolve the possibility that a suspect might destroy digital evidence remotely.  This is particularly problematic since law enforcement officers are increasingly relying on digital evidence to build their cases and investigate possible suspects.[4]

A variety of methods currently exist for deleting digital data from computers, tablets, and smartphones.  For example, Apple has given iPhone users the ability to erase information from their device in the event that they lose it.[5]  However, the First Circuit in Wurie argued rather convincingly that concerns about remote wiping of cell phones are overstated.  The court identified three common procedures that undermine the use of remote destruction of evidence as justification for a search: (1) turn the phone off (or remove the battery); (2) place the phone in a Faraday enclosure (which blocks wifi signals); and (3) immediately copy the cell phone’s contents onto another device.[6]  These same three procedures were also referenced by the defendant in Riley.[7]  Due to the level of intrusiveness of these three procedures, they are better understood as digital seizures rather than searches.  While these less-intrusive procedures undercut the rationale for a full-blown search justified by destruction of evidence, they do not address the destruction of files stored remotely.

In the case of more complex digital evidence, Microsoft’s latest version of Office utilizes “SkyDrive” to allow users to store and retrieve documents remotely.[8]  This type of remote deletion operates differently from the remote “wiping” of iPhone data.  Since the files on SkyDrive are stored remotely, digitally seizing a device with access to them does not prevent their destruction.  For example, if a law enforcement officer were to remove the battery of an iPad (or place it in a Faraday enclosure) with access to SkyDrive files, the SkyDrive user would still be able to completely erase those files by accessing them from another device.  Thus, even with the ability to digitally seize the contents of a physical device, the government can still argue that these searches are justified to identify what, if any, digital evidence a user has stored remotely.

III.  WHERE WURIE AND RILEY FALL SHORT

Both the First Circuit in Wurie and the defendant in Riley have thus far neglected to address the problems posed by remote storage of digital evidence.  Since both cases involve the search of cell phones rather than personal computers or tablets, it is likely that the parties to those cases failed to consider destruction of digital evidence beyond remote wiping of data.  However, cell phones contain the same level of access to data on SkyDrive and Google Drive as traditional computers.  Because of this, the government’s argument that a warrantless search is necessary to prevent destruction of such data holds up against the three types of digital seizures referenced by the First Circuit and the defendant in Riley.  Since the remote storage of digital evidence is largely going unnoticed by the parties to these cases, there is a legitimate chance that the Supreme Court could create a rule for these types of searches that is not readily applicable to data on SkyDrive and Google Drive.  This problem illuminates why the Supreme Court should fashion a rule for digital searches and seizures that accounts for the possibility of destruction of evidence in any form or fashion, whether remote or local.

Such a result is foreshadowed by the Western District of Washington’s discussion of remotely-stored data in In re Edward Cunnius.[9]  It warned that digital devices are best viewed as “portals” under the Fourth Amendment, containing not only local files, but also all information stored remotely or “on the internet.”[10]  The Supreme Court should note that the types of seizures contemplated by the parties in Wurie and Riley fail to capture data retained within the portal of a digital device.  Similarly, the Ninth Circuit theorized about the possible implications of cloud computing on Fourth Amendment doctrine, albeit in dicta:

In the “cloud,” a user’s data, including the same kind of highly sensitive data one would have in “papers” at home, is held on remote servers rather than on the device itself.  The digital device is a conduit to retrieving information from the cloud, akin to the key to a safe deposit box.  Notably, although the virtual “safe deposit box” does not itself cross the border, it may appear as a seamless part of the digital device when presented at the border.  With access to the cloud through forensic examination, a traveler’s cache is just a click away from the government.[11]

Because the petition in Riley and the First Circuit’s opinion in Wurie fail to address this technology as applied to digital seizures, there is a significant chance that the Supreme Court will not reach the issue—an issue with a potentially dramatic impact on the Fourth Amendment’s application to digital devices.

IV.  A POSSIBLE EMERGENCE OF DIGITAL SEIZURE LAW

With an opportunity to consider remote destruction of digital evidence, the Supreme Court should take care to craft a rule that will be applicable to the next generation of digital instruments.  One commentator has suggested that the best solution is to fashion an objective test for courts to apply to exigent computer searches:

[An officer must testify to] specific and articulable facts, known to the officer at the time of the search, demonstrating that the specific cell phone was at risk of remote deletion of potential evidence.  Additionally, the officer must further testify that there were no preventative measures available to him at the time of the search which could secure any evidence potentially stored on the cell phone.[12]

As an example of a generally-applicable solution, the above test hints at the possibility that courts will likely become well-acquainted with not only the three types of digital seizures discussed by the Wurie Court, but other forms of digital seizure designed to halt the destruction of remotely-stored data.

Using the example of SkyDrive, Microsoft may be able to access files or halt the destruction of files stored on a user’s SkyDrive.  In fact, its Windows Live Services Agreement hints at this possibility, albeit with reference to traditional legal devices such as subpoenas.[13]  Without a court order, there could still be a requirement—under 18 U.S.C. § 2703—that Microsoft (or Google) actually preserve a user’s content suspected of having evidentiary value: “A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.”[14]  The authority to order a third-party to preserve digital content is particularly important because, according to one source, the recovery of deleted content on browser-based e-mail systems (such as Gmail) is a complex task at best.[15]  While this might be unnecessary when police have probable cause to believe a device contains digital evidence (where a telephonic warrant might suffice), there are circumstances where a temporary seizure could be justified based on something less than probable cause.[16]  Halting the destruction of digital information is not necessarily even a “seizure” of that data, which may be why 18 U.S.C. § 2703(f) has never been subjected to a Fourth Amendment challenge.  The user still has access to content seized pursuant to § 2703, but no ability to edit or delete it.  Arguably, halting the destruction of potential digitized evidence implicates no privacy concerns under existing Fourth Amendment jurisprudence.[17]

V.  CONCLUSION

As the nine Supreme Court Justices (most likely) debate whether or not Wurie’s or Riley’s Fourth Amendment rights were violated, they should keep in mind that new and emerging technologies provide just as many solutions as they do Fourth Amendment problems.  Section 2703 is just one example of how exigent searches of electronic devices might be better handled by law enforcement’s reliance on similar technologies to address specific technological exigencies.  The three digital seizure methods suggested by the Wurie Court disguise a larger problem that remotely-stored and remotely-wiped evidence presents.

 


* J.D. Candidate, University of Illinois College of Law, expected 2014.  B.A. Psychology and Drama, University of Arkansas, 2010.  I thank the Recent Developments Editor at the Journal of Law, Technology and Policy, Angie Nizio, for her advice and attention to this piece.

[1] United States v. Wurie, No. 11-1792, 2013 WL 2129119 (1st Cir. 2013); California v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. 2013).

[2] See, e.g., Dana Liebelson, Will the Supreme Court Stop Cops from Reading Your Text Messages?, Mother Jones (Sept. 17, 2013, 3:00 AM), http://www.motherjones.com/politics/2013/09/police-cell-phone-search-warrant-supreme-court (quoting Alan Butler: “It’s very likely that the Supreme Court will grant certiorari and review the issue (either in Riley or Wurie). If the Court does not take one case, it will likely take the other.”).

[3] Segura v. United States, 468 U.S. 796, 806 (1984) (“Recognizing the generally less intrusive nature of a seizure, the Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been held impermissible.” (citations omitted)).

[4] See Declan McCullagh, Cops to Congress: We Need Logs of Americans’ Text Messages, CNET (Dec. 3, 2012, 9:00 AM), http://news.cnet.com/8301-13578_3-57556704-38/cops-to-congress-we-need-logs-of-americans-text-messages/ (“As the popularity of text messages has exploded in recent years, so has their use in criminal investigations and civil lawsuits.”).

[5] iCloud: Erase Your Device, Apple Support (Sept. 18, 2013), http://support.apple.com/kb/PH2701.

[6] Wurie, 2013 WL 2129119, at *9.

[7] Petition for Writ of Certiorari at 22–23, Riley, 2013 WL 475242, (No. 13-132).

[8] SkyDrive, Microsoft, http://windows.microsoft.com/en-us/skydrive/download (last visited Oct. 7, 2013); see also File Deletion and Recovery Policy, Google Drive, https://support.google.com/drive/answer/2405957?hl=en (last visited Oct. 7, 2013) (“Anything permanently deleted from Google Drive can’t be recovered.”).

[9] In re Edward Cunnius, 770 F. Supp. 2d 1138, 1144–45 (W.D. Wash. 2011).

[10] Id. at 1145 (“All data on the internet is both separate and one.”).

[11] United States v. Cotterman, 709 F.3d 952, 965 (2013).

[12] Mireille Dee, Note, Getting Back to the Fourth Amendment: Warrantless Cell Phone Searches, 56 N.Y.L. Sch. L. Rev. 1129, 1162 (2011–12).

[13] See Microsoft Services Agreement, Windows Live (Aug. 27, 2012), http://windows.microsoft.com/en-us/windows-live/microsoft-services-agreement (describing, in Sections 5.2 and 5.3, how the user consents to Microsoft accessing and preserving their content).

[14] 18 U.S.C. § 2703(f)(1) (2006).

[15] See Sandy Boucher & Barry Kuang, Email Evidence – Now You See It, Now You Don’t!, Forensic Focus, http://www.forensicfocus.com/email-evidence-now-you-see-it (last visited Oct. 7, 2013) (“In a recent case, we were able to recover some very recent emails from a system using Windows Live Hotmail but older messages were gone and even those recovered from unallocated space were fragmented and hard to use.”).

[16] See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may temporarily detain a person and his or her belongings based on reasonable suspicion).

[17] See Warden v. Hayden, 387 U.S. 294, 305–06 (1967) (“And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity: stolen goods; instrumentalities; and contraband[.]” (citations omitted)).