Articles Posted in Law & Information

In August 2014, California passed a “kill switch” law requiring all smartphones sold in the state to include built-in remote locking technology. The “kill switch” law, which went into effect July, allows the owner of a smartphone to disable the device even when he or she does not have possession of the phone. The largest smartphone manufacturers, Apple and Google, are offering remote kill software, known as “Activation Lock” and “Device Protection,” respectively.

How does kill switch technology work?

Kill switch software protects a smartphone by allowing the owner to remotely render it inoperable. For instance, the owner of a smartphone can remotely apply a passcode before it can be unlocked or restored to factory settings. Aside from screen locking, other remote abilities include wiping data and preventing unauthorized resets. In addition, the user can reverse data wipes and restore phone operability. According to the bill, “the technological solution, when enabled, [is] able to withstand a hard reset…and prevent reactivation of the smartphone on a wireless network except by an authorized user.”¹

Is kill switch technology effective?

Stealing smartphones, as a relatively quick and easy crime to commit, has become a widespread problem in the United States (accounting for 30-40% of all robberies in the nation in 2012). Reports say that one in ten people have had their smartphone stolen.² In California, smartphone theft accounts for more than 50% of street robberies.³ By vastly reducing the resale value of smartphones, kills switch technology is expected to greatly curb theft. In 2013, 3.1 million smartphones were stolen in the United States. According to a study by Consumer Reports, the numbers have dropped to 2.1 million (or 32%) in 2014,⁴ largely as a result of kill switch technology.⁵

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When the family members or friends of an inmate accept a jailhouse call, they will likely have to acknowledge a recording stating that the call is being recorded. There are also usually signs by the phones in the jail informing inmates that their calls are being recorded. The only calls that remain private are between inmates and their attorneys.

Despite the warning, inmates often talk about their cases over the phone, sometimes even incriminating themselves. Even though attorney-client conversations are privileged, they sometimes are recorded or even monitored live. One such case took place in New York. A prosecutor submitted a recording of an inmate’s conversation with his attorney from a jail call.¹ In another case, Baltimore County prosecutors used a recording of an inmate’s call to his ex-girlfriend to present what the judge called “overwhelming, damning evidence of [the inmate’s] guilt.”²

Prosecutors have long been using recorded phone calls as evidence, and inmates have been admitting to crimes during these phone calls for years, so it seems the practice is gaining in popularity. However, jailhouse phone calls must be certified by the telephone provider of the correctional facility to be used by the prosecution.³

When you speak to your lawyer from a jailhouse phone, you need to begin your conversation with the words, “I am only speaking to my lawyer because I know what I tell him is 100% confidential and cannot be used as evidence in a court of law.” This will mean that your phone call is private and can’t be used against you as evidence.

Why Inmates Admit Guilt Over the Phone

Most of the time, inmates don’t think anyone is really listening to their calls, or they may just get caught up in their situation and say too much. Many don’t realize their call can be used as evidence. Inmates may try to pass information, apologize for their action or try to convince someone to lie or hide evidence. Sometimes they talk about their case because they feel lonely and just want to talk about what’s happening. Unfortunately, it doesn’t matter why you say too much on the phone, only that you did.

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Search warrants have been a part of our criminal justice system since this country was founded, but when the Fourth Amendment to the U.S. Constitution was ratified in 1791, the Founding Fathers could not have possibly anticipated the advances in technology that are a part of our daily lives in the 21st century. Laptops, tablets and smartphones could not have been imagined at a time when even the telegraph had yet to be invented.

Likewise, the men who wrote the Bill of Rights could not have foreseen the technology that law enforcement agencies would use to conduct searches and seizures of private information. Technology moves faster than the laws that govern its use, so there is always a gap between the time a new privacy invasion device is invented and the time that legislators find a way to protect against it.

Fortunately, California lawmakers are working on strengthening the public’s protections against unwarranted invasions of privacy in the digital age.

Existing Law Provides Few Protections

Law enforcement agencies have been able to exploit the gap between technology and the slow-moving process of changing the law. Police can search the physical aspects of the phone, such as pulling the phone out of its case or opening the battery compartment (if the model has one). In situations where they actually believe evidence on the phone is likely to be immediately destroyed, police officers can search the cell phone without a warrant.

Nicole Ozer, an attorney with the American Civil Liberties Union (ACLU), explained, “While technology has advanced exponentially, California privacy law has remained largely unchanged. Law enforcement is increasingly taking advantage of outdated privacy laws to turn mobile phones into tracking devices and to access e-mails, digital documents, and text messages without proper judicial oversight.”¹

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You have just gotten home from a long, difficult day at work. You are at a point where you can relax and truly consider yourself done for the day, and now it is time to have some fun. You fire up your Xbox and start playing “Grand Theft Auto V,” the open world game where you can commit just about any act of violence or criminal mischief you have ever imagined doing if there were no real-life consequences. Steal a car? No problem. Rob a liquor store? Have at it. Murder other players and steal the money they drop? No one will stop you.

You find yourself dominating other players in deathmatches and capture missions. As the police chase you all over the fictional city of Los Santos, the sirens blaring on your TV drown out the sounds of those coming from the real police cars headed down the street to your house. Without warning, police dressed in full body armor and armed to the teeth burst into your house and order you to place your hands behind your head and lie face down on your floor.

You have just been “swatted.”

What is “Swatting?”

“Swatting” is where, either as a practical joke or as revenge, a person or group will gather up personal information on you and send police to your home or business, claiming that a heinous crime has been committed. Usually, the prank will involve a dire and urgent situation, such as a hostage taking or a murder. The goal is to make the report so dire and urgent that police will send a Special Weapons and Tactics (SWAT) team.

The result is that the victim finds him or herself staring down the barrel of a police officer’s assault weapon. In many cases, the victims have been people who play games while streaming their gaming to an audience on Internet sites such as Twitch or Periscope. In other cases, victims have been celebrities, such as singer/actress Miley Cyrus and rapper Lil Wayne.

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