This is the slide deck to accompany my presentation to the technology seminar of the Georgia Association of Criminal Defense Lawyers Technology Conference

1. TECHNOLOGY CASELAW UPDATE
When They Want Your Client's Cellphone and Its Contents

2. REMOTE FOLKS, TWEET
QUESTIONS TO:
@JSCOTTKEY
#KEYCASELAW

3. CONTACT ME
➤ Twitter:
➤ @jscottkey
➤ @millerandkeylaw
➤ Instagram:
➤ MillerAndKeyLaw
➤ Scott Key
➤ Email and Phone:
➤ 678.610.6624
➤ skey@millerandkeylaw.com

4. MY BLOG
georgiacriminalappellatelawblog.com

5. 3 TOPICS
➤ 4th Amendment and Cell
Phone Searches
➤ 5th Amendment and Order to
Decrypt and Unlock
➤ Subpoenas and Search
Warrants for Subscriber
Information

6. THEME: DON'T BE A DINOSAUR
(THE LAW MOVES SLOWER
THAN THE TECH)

7. WHY IS THIS IMPORTANT
➤ There's a Tech Component to
Every Criminal Case
➤ If you Don't Understand
Facebook, Twitter, Snapchat,
Instagram, Twitter, or the
Next 5 Things, You Will:
➤ Nuke Your Client's Appeal
➤ Miss Legal Issues
➤ Sound Dumb to the Jury

8. HOW WELL DO YOU NEED
TO KNOW IT
You need to know enough to teach it to the judges
and justices who don't get it
Pro-Tip -- Read Opinions of the Judges Who "Get"
It (GA: Dillard / TX: Justice Don Willett)

9. NEW V. STATE
327 GA. APP. 87 (2014)
Jury Question About Whether Deleted Contraband
Images Were in the Possession of the Guy in Possession of
the Computer
---
Read for the Rule and to Learn How to Write Briefs with
Tech Issues

10. 4TH AMEND. AND CELL
PHONES
What is a Cell Phone for 4th Amendment
Purpose?

12. RILEY V.
CALIFORNIA ,
134 S. CT.
2473 (2014)

13. GOVERNMENT PROPOSED TWO RULES TO DECIDE THE CASE
➤ Arizona v. Gant Methodology
➤ Warantless Search of Contents of Phone Permitted if there
is reason to believe that the phone contains evidence of the
crime of arrest
➤ Analogue Test
➤ Warrantless Search is Permissible if law enforcement could
have obtained the same information contained on the cell
phone from some pre-digital counterpart to the contents of
the phone
➤ These exceptions Would Swallow The Rule

15. Balancing Test:
1. Government's Interest in Immediate Search
* Officer Safety
* Risk of Erasure
Versus
2. Privacy Interests of the Individual
* Vast Data Can Be Stored On Phone
* Our Whole Lives Are There

16. TAKEAWAY FROM RILEY
➤ Searches of Contents of Cell
Phones Require a Warrant
unless There is Truly an
Exigent Circumstance
(Instructions to Stop a Ticking
Time Bomb)
➤ This Balance Will Almost
Always Tip Toward Privacy
➤ Try to Keep This Framework
in mind in other contexts.

17. ORDERS FOR PASSWORDS AND
DECRYPTION

18. U.S. V. DOE
(IN RE
GRAND JURY
SUBPOENA)
570 F.3d 1335 (11th Cir.
2012)

20. THE TRICK HERE
➤ The Question Does Not Turn
on the Privacy Interests in the
Contents of the Hard Drive or
Device
➤ The Question Turns on
Whether the Act of
Decryption or of Disclosing
the Password is "Testimony"

21. THE HOLDING
➤ Any Order to Decrypt Contents of a Hard Drive Is An Order
to Compel Testimony
➤ Immunity That Leaves Room for the Government to Derive
Use of that Testimony to Develop a Criminal Case Against the
Witness Does Not Protect Against Self-Incrimination for 5th
Amendment Purposes

22. SEC V. HUANG
➤ USDC for ED of Pennsylvania
➤ No 15-269 (2015)
➤ What if the Holder of the
Password is an individual
employee in possession of a
corporate phone?
➤ Remember the Analysis --
the Focus is the Act not the
Contents

23. THE TAKEAWAY
➤ Where the issue is court-ordered decryption or court ordered
production of a password, the issues is not 4th Amendment
But 5th amendment
➤ The Act of decryption or the providing of a password is
Testimony for 5th Amendment Purposes
➤ Full Immunity May Require Production
➤ And If the Contents are Particularly described, then the
foregone Conclusion may favor the gvt., but not yet

24. QUESTIONS AHEAD
➤ What if a bond condition is
"Provide law enforcement your
password, and you get a bond"
➤ Is this Jackson/Denno --
Miranda Self Incrimination?
➤ Is this speech with a hope of
benefit / Fear of Punishment

25. SUBSCRIBER INFO.
➤ U.S. v. Graham, 824 F. 3d 421
(4th Cir. 2016)
➤ U.S. V. Davis, 785 F.3d 498
(11th Cir. 2015)
➤ U.S. V. Carpenter (6th Cir.
2016)
➤ Every Circuit has followed the
3rd Party Doctine

26. CONCLUSION
➤ Cell Phone Searches Almost
Always Will Require a Warrant --
Riley
➤ A Person will Not be Required to
Decrypt a Hard Drive or Provide a
Passcode to his or her device
without a grant of full immunity
-- US v. Doe
➤ The Government May Freely get
Access to Cell Phone Location
Data and Without a Warrant --
Graham, Davis, Carpenter
➤ Stay Current on Tech and the Law
so That you Can be Creative
About it Going Forward