Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently. These issues have no relationship to each other, but can both be highly relevant to criminal cases.
The first involves a your man who was living alone in a South American country. He was extremely poor and his family was basically gone. Having absolutely no personal resources for even necessities, he became involved with a local gang. To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout. Significantly, he really did not want any part of the gang lifestyle. He eventually fled his home country and sought asylum in the United States. He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.
Part of the admission process here involved meeting with a mental health therapist whose position was government-related. The therapist took notes of their meetings, which included discussions of his gang-related activities. Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States. The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country.It is nothing short of astonishing that notes of meetings between a patient and their therapist could be revealed, particularly without the consent of the parties involved in the discussions. Putting aside his gang involvement, which appeared tangential and forced at best, the use of those records in immigration proceedings without notice or consent represented a gross violation of his privacy rights, and will do nothing more than chill the patient-therapist relationship for those undergoing psychological evaluations and counseling under similar circumstances. It always seemed basic to me that records such as those at issue here should be released only after full and informed consent. Incidents like this suggest that this long-standing practice may be falling by the wayside. (Incidentally, the therapist was so angered by what happened that they resigned.)
The other issue involves data stored on personal electronic devices. Right now, if such data is encrypted, the tech companies cannot be compelled to pierce the encryption so that the data can be revealed. New legislation on Capital Hill may change that. The Trump Administration through the Department of Justice, and Senator Lindsey Graham, are pushing a bill that would, among other things, require tech companies to comply with a warrant to break into a particular phone or other device so as to obtain encrypted data. This debate went away for a time, but has now been revived.
The arguments on both sides are not new. From the view of law enforcement, dangerous people store all kinds of data on their devices that could be used in connection with criminal investigations. Subject to appropriate procedures, law enforcement should have access to this data so as to further investigations and prosecutions. Privacy advocates argue, among other things, that anything created by the tech companies to allow the encryption of be pierced could also be used by malicious hackers. Clearly, law enforcement has the right to investigate (and then turn the material uncovered over by way of pre-trial discovery). But if this legislation is passed, it must at a minimum be accompanied by strong procedural protections that protect privacy rights, and allow for aggressive motion practice by defense attorneys when the procedural protections have been ignored.
Given the frequency with which things like material on Facebook and text messages turn up in discovery in criminal cases, every criminal defense attorney must monitor this legislation. The legislation is still taking shape, and its parameters are currently unclear. Even though it is at the Federal level, it could eventually influence action by State legislatures as well.
James S. Friedman, Esq., is a criminal defense attorney in New Brunswick, New Jersey. Mr. Friedman represents defendants with criminal charges in all State and Federal courts throughout New Jersey and New York City. If you have charges in one of these courts, call him to discuss your case, learn about your options, and plan your defense.