1.

Reasonable Expectation of Privacy

The threshold question in determining whether a governmental
search was unreasonable is whether it infringed on an individuals
reasonable expectation of privacy. A reasonable expectation of privacy
requires: (1) the individual must have exhibited an actual, subjective
expectation of privacy and (2) the expectation must be one that society is
prepared to recognize as reasonable. In applying this analysis, it is
important to determine the nature of the specific activity at issue. In this
case, the nature of the activity specified is the governments acquisition
of Verizons records of Appellants historical CSLI.
a. Subjective Expectation of Privacy
A constitutional violation cannot occur unless the individual had a
subjective expectation of privacy. In determining whether the
individual had a subjective expectation of privacy, the Court will inquire
whether the individual [sought] to preserve [the information] as private.
Since Appellant did nothing to preserve the privacy of his CSLI, and in
fact knew that the information was not private, he did not exhibit a
subjective expectation of privacy. As such, his claim under Article 21
must fail because the government did not intrude on his reasonable
expectation of privacy.
When phone users realize they are conveying information to
others, they cannot have a legally recognized subjective expectation of
privacy. Holding that phone users have no subjective expectation of
privacy in the phone numbers they dial, since the phone users realize
they are conveying information to the phone company to use in
connecting their calls. Therefore, Appellant cannot have a reasonable
expectation of privacy in his CSLI, because he knew that he was
conveying the CSLI to his phone company to connect his calls. Every
user is aware of situations in which they have no bars are out of
service range, or might incur roaming charges. Thus, users know
they convey information about their movements to their cell service
provider. Moreover, cell phone users know that the phone company
creates records of this information for billing purposes. The knowledge
that the phone company obtains and records this information flies in the
face of a subjective expectation of privacy.
b. Objective Expectation of Privacy
Even if Appellant did harbor a subjective expectation of privacy in
Verizons records, his claim under Article 21 must still fail, because that
belief is not one that is objectively reasonable. The second prong is that
the individuals expectation of privacy must be one that society is
prepared to recognize as reasonable.
The sum of District Court precedent confirms that an expectation
of privacy in CLSI is not objectively reasonable. The Supreme Court
found that individuals have no privacy expectation in banks records of
their financial information. Taken together, this means that individuals
do not have a privacy expectation (1) in a business records, (2) in their
public location, and (3) in numbers dialed from their phone. This
precedent dictates that an individual cannot have an objectively
reasonable expectation of privacy in their cell service providers records
of their CSLI, since CSLI is a business records of the individuals
location, created by dialing on a phone. If the individual does not have
an objectively reasonable expectation of privacy in any of the three
standing alone, the individual cannot have a privacy expectation in the
three when combined.

1. Third Party Doctrine

 Moreover, even if this Court were to find that Appellant did have a
reasonable expectation of privacy in his historical CSLI, Appellants
claim must still fail, as he forfeited this protection by conveying his
CSLI to a third party. The Supreme Court has consistently held that a
person has no legitimate expectation of privacy in information he
voluntarily turns over to third parties. This is true even where the
information is revealed on the assumption that it will be used only for a
limited purpose and the confidence placed in the third party will not be
betrayed.
The Supreme Court has visited this third party doctrine in
several cases, finding that no violation occurred where the information
subject to the governments search was previously conveyed to a third
party. Finding that a person had no expectation of privacy in checks,
financial statements, and deposit slips, because these materials contained
only information that was voluntarily conveyed to the bank and exposed
to its employees; a person had no privacy expectation in the phone
numbers he dialed, since he had voluntarily conveyed and exposed
this numerical information to the phone company.
The application of the third party doctrine hinges on whether the
third party created the record of the information to memorialize its own
business transaction with the individual or whether it was simply
recording a transaction between two independent parties.
CSLI is properly viewed as a business record, and the third party
doctrine therefore applies, thus negating Appellants claim under Article
21. Holding that cell site information is clearly a business record
since the phone company records this information for its own business
purposes, including optimizing service and billing, and the government
does not require it to record or retain this information. When a person
conducts business, he often leaves a record.

B. Requiring accused to produce a Copy of Encrypted Data

Did Not Violate Privilege against Self-Incrimination under
Article 20(3)
 Appellant argues that requiring him to produce an unencrypted
copy of the computers hard drive violated his privilege against self-
incrimination because it required him to give law enforcement
incriminating information to which they would not otherwise have
access. the District Court did not have error in requiring Appellant to
decrypt the computers hard drive because the contents of the hard drive
were not testimonial and Appellants control of the laptop and the
existence of incriminating records on the laptop were a foregone
conclusion.
.First, the contents of the computers hard drive were not
testimonial, and thus not constitutionally privileged, because the
contents were voluntarily compiled. If the party asserting privilege has
voluntarily compiled the document, no compulsion is present and the
contents of the document are not privileged..Moreover, the district
courts order, which required Appellant to produce a decrypted version
of the hard drive, did not require Appellant to restate, repeat, or affirm
the truth of the contents of the documents sought.
Appellant argues that the very act of production implies certain
incriminating facts, namely, that he had ownership and control over the
incriminating documents and that he knew of their presence. By
producing documents in compliance with a subpoena, the witness would
admit that the papers existed, were in his possession or control, and were
authentic. However, this theory does not prevent production because the
defendants possession and control of the computer was already known
a foregone conclusionas was the existence of incriminating
documents on the computer hard drive.
The computer was seized during a police raid of the
methamphetamine laboratory. lightman testified that Appellant
repeatedly used the computer and would look back at it to retrieve
information about the drug operations, to monitor the influx of
chemicals from suppliers, and to monitor the laboratories outputs. Since
the existence and content of the documents were a foregone
conclusion, the Supreme Court held that production of the documents
could be compelled without violating the Article 20(3).
 Moreover, the court-ordered production of a decrypted copy of the
computers hard drive was not a fishing expedition, because the hard
drive was known to contain the information the government sought.
Here, however, the government seeks no such broad, burdensome
discovery in the hopes of uncovering new, incriminating evidence.
Rather, the government is seeking access to a hard drive when it knows,
by virtue of testimony by a co-conspirator in addition to circumstantial
evidence, that the hard drive contains extensive documentation about the
scope and operation of the moving methamphetamine laboratories.
Appellant mistakenly reads the foregone conclusion doctrine to
mean that so long as the government is not aware of all the incriminating
content on the hard drive, the contents and possession of incriminating
information are not a foregone conclusion. First, in this case, the
government knew more than that the drives might have incriminating
informationthe government had testimony to that effect. Second, it
was enough for the government to know that the defendant possessed
and controlled incriminating documents, and that the governments
request was tailored to the production of the documents that they knew
existed.
In line with this precedent, the district court was correct to hold
that the Article 20(3) does not prevent compelled decryption when it is
clear that the defendant owns and controls a computer that contains
incriminating evidence.
I. The Cell Site Location Data That Was Gathered Without a
Warrant Should Have Been Suppressed
A. Reasonable Expectation of Privacy
Though the majority correctly noted that the key to Fourth
Amendment analysis is to determine nature of the specific activity at
issue, it incorrectly applied the law. At issue is not whether the
Appellant has a reasonable expectation of privacy in Verizons historical
CSLI records, but whether he has a reasonable expectation of privacy in
the sum of his movements, as tracked by his cell phones connection to
nearby towers. Individuals may have a reasonable expectation of privacy
in the sum of their public movements even though the government has
the ability to collect aggregated GPS data.
The Supreme Court case establishing the law regarding a persons
reasonable expectation of privacy, individuals have a reasonable
expectation of privacy in their private telephone calls. Holding bears
even greater significance today, due to the sheer universality of phone
use. According to one poll, nearly three-quarters of smart phone users
report being within five feet of their phones most of the time, with 12%
admitting that they even use their phones in the shower. This reality
demands that the Court carefully consider the effects of its holding. The
Court should not take lightly the privacy interest cell phones users have,
as this decision will have far-reaching effectsinto the pockets of nearly
every Amostrian today.
The Supreme Court has considered and issued a warning regarding
the issue presented in this case. The historic location information created
by cellular phones can reconstruct someones specific movements
down to the minute, not only around town but also within a particular
building). Particular attention should be given to location monitoring
that generates a precise, comprehensive record of a persons public
movements. The time has come when the Court must decide the issue
not presented in that case: whether the government should be allowed to
use historic cell phone location information to track the minute-by-
minute movements of an individual. So there is a clear violation of
Article 21 of the Constitution.
Third Party Doctrine
.
The third party doctrine is not a full-on exception to the
legitimate-expectation of privacy inquiry. Rather, the third party
doctrine merely aids the court . . . in deciding whether certain privacy
expectations are reasonable by societal standards. Indeed, the Supreme
Court in held that an individual can expose information to the public and
retain his/her reasonable expectation of privacy in the information.
people have a reasonable expectation of privacy in their private
telephone conversations, despite using a public telephone booth and a
telephone companys routing connection of the call.
The determination as to whether an individual can retain a privacy
expectation in information, despite conveyance to a third party, turns on
how the information was conveyed and what information was conveyed.
1. Voluntariness
A person must disclose information voluntarily to a third party in
order to lose their privacy interest in the information, Mere disclosure is
not enough. If a person does not voluntarily convey the information,
then they can still retain their privacy interest in it.
Cell phone users maintain their privacy interest in their CSLI
because they do not voluntarily convey it to their service providers
finding that, though users convey their CSLI to third parties, they do not
always do so voluntarily through active participation. Voluntary
conveyance necessarily includes some amount of active participation by
the individual conveying the information. This active participation is
not always present in the creation of CSLI, which is automatically
generated when a call or message is made or received by a cell phone,
even when the user does not answer that communication. This lack of
active participation distinguishes CSLI from the existing district court
applying the third party doctrine to voluntary conveyances The claim
that users voluntarily choose to carry and use a cell phone holds little
weight, since it is idle to speak of assuming risks in contexts where,
This cannot be the rightful outcome.
2. Content Information
In going to the second inquiry, an individual can retain their
privacy interest in information conveyed to third parties depending on
the type of information conveyed. Courts do not find a privacy
expectation in third parties business records of addressing or routing
information. However, courts find that content information, though
conveyed through a third party business, can retain its privacy interest.
CSLI cannot be classified as addressing or routing information,
since it does more than route a callit tracks a users location. In fact,
it does so quite precisely. This level of detail creates the type of
sensitive content information that courts find to be protected. The
content inquiry cannot begin and end with a single data point of CSLI.
The government collects this information with respect to days and
months at a time. The amalgamation of CSLI provides a comprehensive
map of an individuals movements for that period of time.
The intimacy of the content information conveyed through
historical CSLI is compounded where, as in this case, it reveals
Appellants movements to, from, and inside his personal residence. It is
undisputed that Appellants CSLI conveyed his movements from his
home to various other locations for more than a year. As such, historical
CSLI deserves protection under Article20 (3).

If the government wishes to conduct this type of surveillance

legitimately under Article 21, it must get a warrant. Cell phone users
have a legitimate privacy interest in their historical CSLI. As such,
when the government obtains this information without a warrant, it
conducts an unreasonable search in violation of the Article 21.
 I. Forcing Appellant to Produce Incriminating Records
Violated the Fifth Amendment
Forcing a defendant to decrypt and turn over documents proving
his involvement in a criminal enterprise does not violate hisprivilege
against self-incrimination. I respectfully dissent from such a holding,
since it contravenes both the meaning and spirit of the Fifth Amendment.
First, it is clear that ordering a defendant to decrypt computer files
is a testimonial compulsion, since by decrypting and producing
documents on a computer a defendant is forced to implicitly . . .
acknowledge that he has ownership and control of the computers and
their contents.
Second, the District Court misapplies, the foregone conclusion
doctrine, which was only meant to permit compulsions that would
otherwise be testimonial when the defendant adds little or nothing to
the sum total of the Governments information by conceding that he in
fact has the requested documents.It is not enough that the defendant is
suspected of possessing incriminating records, the government must
know with reasonable particularity what documents the defendant
possesses.
Here, the government suspected, but did not know, that Appellant
controlled the computer seized in the raid of the methamphetamine
laboratory. Moreover, the government suspected that the computer
contained incriminating information, but the government did not know
how much information there was nor in what form that information was
stored. Rather, the government requested that the entire hard drive be
decrypted so that they could search its files with the hope of finding
additional incriminating evidence. It was therefore error for the District
Court to hold that the existence of the incriminating documents was a
foregone conclusion. However, is a far cry from this case, in which all
the prosecution had was the word of a co-conspiratorwho was offered
less jail time in return for incriminating the defendant. Moreover, all the
co-conspirator could claim was that he saw Appellant with a computer
and that Appellant looked at his computer when accessing records. Even
if the co-conspirator is to be believed, the co-conspirator did not even
see the documents, or know what they looked like, or how many of them
there were, or even that they conclusively existed.
Likewise, the broad court order in this caseis requiring Appellant
to produce decrypted versions of all contents on the computer, including
all records, logs, or documents relating to and used in the
methamphetamine schemeendorses the prosecutors fishing
expedition for incriminating documents. Any responsive answer
Appellant could provide would necessarily be incriminating.
Given the circumstances, the court held that the facts that would
be conveyed by the defendant through his act of decryptionhis
ownership and control of the computers and their contents, knowledge of
the fact of encryption, and knowledge of the encryption keyalready
are known to the government and, thus, are a foregone conclusion.
Here, the defendant has not taunted law enforcement by claiming
that he knows how to decrypt the computer seized in the raid of the
methamphetamine laboratory, nor has he established that the computer
has records of the multiple labs operations
The government merely knew that the encrypted drives were
capable of storing vast amounts of data, some of which may be
incriminating, and that was not enough to render the contents of a hard
drive a foregone conclusion.
It is error for District Court to read the foregone conclusion
cases so broadlyin doing so, the District Court reduces the privilege
under Article 20(3) to a presumption of innocence. Under the District
Courts decision, once anyone testifies that the defendant is in
possession of incriminating information, he may be forced to decrypt
and turn over all incriminating materials related to that accusation.
Thus, the defendant is effectively forced to admit guilt and knowledge of
guilt. Thus requiring such incriminating evidence is a clear violation of
Article 20(3).