Drug Induced Homicide Defense Toolkit
connection records” through an administrative subpoena,236 and other non-content information through a court order.237 However, some states have implemented stricter protections for certain types of communications metadata.238 There is also the issue of encryption. Where information on a phone is encrypted in such a way that law enforcement cannot access it, even a court order will not make the information available. For this reason, the NDAA, the FBI, and others in law enforcement have been advocating for years in the hope Congress will amend the Communications Assistance for Law Enforcement Act of 1994 to require encryption technology to include backdoor access for law enforcement.239 2. Location tracking Second, data from an individual’s cell phone can be used to track their location over a (potentially long) period of time by way of commercial records indicating which cell
236
18 U.S.C. § 2703 (c). An administrative subpoena can also be used to obtain a range of basic subscriber information, including address and payment mechanism. 237
18 U.S.C. § 2703 (d).
238
See, e.g., People v. Sporleder, 666 P.2d 135 (Co. 1983). For a general discussion of state deviation from federal standards for law enforcement access to metadata, see Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. U. L. Rev. 374 (2006). 239
NDAA, The Opioid Epidemic: A State and Local Prosecutor Response at 7-9 (“Address the Obstacle of Smartphone Encryption”).
Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition
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