[T]he defense attorney for a woman alleged to have killed four people in central Vermont last month is challenging the state’s application for a warrant to search her cellphone.
Defense attorney David Sleigh disputed the state’s application to obtain a warrant to search Jody Herring’s cellphone in a status conference Tuesday. But the issue of access to electronic records extends beyond the court case.
Sleigh’s stand links to a larger question of the delineation between personal privacy and investigators’ access to cellphone records. As the issue plays out in federal courts across the country, the process of obtaining records from cell service providers and others is expected to come under legislative scrutiny in Vermont in the next session.
Responding to a request for a warrant by the state to search Herring’s cellphone as part of the investigation, Sleigh argued in a telephone status conference Tuesday that the request was too broad. It would allow investigators to go “willy-nilly” through Herring’s phone, he said.
As devices can contain everything from text messages to voicemails to photographs to Internet browsing histories, he said, unlimited state access to her phone would provide a broad amount of information not germane to the case.
“Anybody who has a cellphone these days realizes that there’s an enormous amount of one’s life (on one’s phone) that arguably is not relevant to the state’s interest in prosecuting this case,” Sleigh said.
Sleigh said that during the status conference, which was held by phone, the state backed off from its application for a warrant to search Herring’s mobile phone.
Assistant Attorney General John Treadwell, who is heading the prosecution of Herring, declined to speak about the status conference Wednesday.
“We’re not going to comment on the investigation at all,” he said.
For Sleigh, the government’s ability to access information on Herring’s phone links to a larger question of privacy and phone records. In the long run he expects that the notion of privacy and personal devices “is going to expand rather than contract,” he said.
The matter has been playing out in courtrooms across the country. A U.S. appeals court in Virginia ruled last month that the government must get a warrant in order to access an individual’s cellphone location records.
In an interview Wednesday, Allen Gilbert of the American Civil Liberties Union of Vermont emphasized the importance of respecting privacy of electronic records.
“Jody Herring has not been convicted of committing a crime yet,” Gilbert said. “She has all the rights that you or I would have in terms of the privacy of her records.”
Under the Fourth Amendment, which protects citizens against unlawful search and seizure, warrants are only permissible when they are suitably specific — the government cannot get an overly broad warrant and “go on a shopping spree,” Gilbert said.
Still, Gilbert said, there are questions about what information the government can access without a warrant. He pointed to inquests — a procedure under statute that state’s attorneys can use to access information without getting a warrant.
Investigators’ access to cellphone records is determined by a federal law from the 1980s called the Electronic Communications Privacy Act, or ECPA.
According to David Cahill, executive director of the State’s Attorneys and Sheriffs Association, investigators need to go through different processes depending on the sort of information they are looking to retrieve from a cellphone.
Under the law, investigators do not need a warrant to obtain a call log, which includes numbers dialed and the duration of calls, from cellphone providers; they can get the record with a type of subpoena that requires a signature from a judge.
For records that show the location of a cellphone, the state needs to obtain an order from a judge that is more difficult to get than a subpoena, but not as strict as a warrant.
To access more specific information, such as the content of a text message or a voicemail, the state needs to obtain a warrant.
Lawmakers are likely to take up the issue of exactly where the line falls regarding search and seizure of digital communications records in the upcoming session.
A bill introduced by Sens. Joe Benning, R-Caledonia, and Tim Ashe, D/P-Chittenden, during the 2015 session included language that would have restricted cellphone companies from releasing any identifying information about a customer to the state without a warrant.
That section and several others on privacy matters were stripped from the bill, which ultimately passed in a bare bones form that only addressed automated license plate readers.
But warrants and electronic information are on deck to come up in the second half of the biennium. The Senate Judiciary Committee will likely take up the issue when members convene in Montpelier next month.
Benning said Wednesday that he proposed the legislation in part to assess how the state is matching 21st century technologies to the values spelled out in the Fourth Amendment and the Vermont Constitution.
“Technology is constantly changing, but the changing technology should not eliminate that warrant requirement and we should not forget that that warrant requirement is there,” Benning said.
The ACLU is supportive of enacting a law in Vermont that would expand the need for warrants in collecting electronic data.
Cahill, of the state’s attorneys group, said he will advocate for the state to keep in place a multi-tiered approach to obtaining records of different levels.
However, Cahill said, Vermont’s current policies are lacking in some ways. Under current statute, Vermont law enforcement runs into difficulties when working with entities based out of state, and getting permission for a wiretap, which involves the highest standard, is not possible under state law.
“Are we missing out on some information because we have not enacted our own statutes?” Cahill said. “The answer is yes.”
