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Digital Divide and Access to Justice
Vivian I. Neptune Rivera
SELA 2015 The digital divide has been defined as the unequal
access to new technologies and the lack of knowledge regarding its
use and potential when accessible.1 The limitations regarding
access to and the application of these technologies create a chasm
between citizens and countries. Closing the digital divide has been
a common objective of several worldwide organizations, private and
governmental, as they acknowledge that access to new technologies
will aid in the formation of new community and economic development
models.2 Several projects have succeeded using this model, while
others have not had the same fate as they have not understood the
underlying social and economic inequalities that cannot be solved
merely by providing access to technology.3 There is an aspect of
the digital divide that has been the subject of very little study.
It pertains the judicial processes by the State against individual
citizens when they are based on evidence that has been created,
stored, or voluntarily shared by citizens on the internet through
new information technologies, or the evidence that has been created
or stored in their private electronic equipments or those that
belong to their employers.4 Citizens leave a digital print that may
later be used 1 Mark Lloyd, The Digital Divide and Equal Access to
Justice, 24 Hastings Comm. & Ent. L.J. 505, 522-524 (2002). 2
Id. at 526-53 3 Julia R. Gordon, Legal Services and the Digital
Divide, 12 ALB. L. J. SCI. & TECH 809, 811 (2002). 4 I use the
term electronic evidence when the analysis focuses on the hardware
and digital evidence when concentrated on the evidence contained in
the equipment or
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against them by the State. The lack of knowledge about the
implications of that digital print, once it has been created,
exemplifies how certain sectors are more vulnerable due to their
lack of knowledge of the possible uses of these technologies
despite the fact that they have access to them. Most of the
evidence, substantive or illustrative, presented at this time
before the courts in the United States and Puerto Rico, is in
digital and electronic format.5 The State has the resources to
present cases against citizens using this evidence. The average
citizen does not have the economic resources nor the technological
knowledge to present a defense when the evidence is in these
formats. Inequality grows in detriment of the populations
individual liberties. I propose that the digital divide results in
unequal access to justice, as the average citizen lacks the
resources, the technology, or adequate tools to defend himself from
the accusations presented by the State based on electronic or
digital evidence. In the first part of this paper I will discuss
the digital divide and how the subject has been approached in
recent years as a problem of access and inequality. In the second
part I will discuss the production, storage and use of electronic
and digital evidence, and the challenges that this type of evidence
presents regarding the right to privacy, conservation issues,
authentication, and uses in judicial processes. hardware. See the
manual of the Organization of American States , Manual Handling
Digital Evidence and Computer Environments to p. 3, in
http://www.oas.org/juridico/english/cyb_pan_manual.pdf. 5 See,
Permanent Advisory Committee on Evidence Rules 2007, Puerto Rico
Supreme Court,
www.ramajudicial.pr/sistema/supremo/Informe_Reglas-de-Derecho-Probatorio-2007.pdf
p. 639 and Janet Walker, Gerry Watson, New Trends in Procedural
Law: New Techonologies and the Civil Litigation Process, 31
Hastings Int. & Comp. L. Rev. 251 (2008).
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Finally, I will present examples of cases in the Puerto Rico and
United States courts that illustrate how the lack of access to
technologies and of knowledge regarding how the State uses them,
deprives citizens of the possibility of mounting adequate defenses
and of having access to the judicial system, resulting in a
situation of inequality before the law.
I. The digital divide The concept of the digital divide is
difficult to define and presents many dimensions regarding its
effect on the general population. In its most common usage, it
refers to the lack of access to the Internet, but it is also deemed
to include the inequalities in access to a computer, Wi-Fi
connection and bandwidth.6 For the purposes of this reflection, I
will concentrate on the approaches that concentrate on the lack of
resources to acquire, possess or use technology for business or
personal transactions. There is consensus in that, when speaking
about the digital divide, it is not about whether a group has or
doesnt have access to the technologies. It is indispensable to
evaluate socioeconomic conditions, education and the knowledge and
skills to use that technology to understand the extent of the
digital divide.7 The discussion in some countries centered around
the lack of access to the internet, the lack of resources to
acquire hardware, and the lack of skills and knowledge regarding
the adequate use of these technologies. The discussion later 6 The
term digital divide is attributed to Larry Irving, former Assistant
Secretary for Communications and Information and Administrator of
the National Telecommunication and Information Administration
(NTIA) of the Federal Department of Commerce. See Addendum 1. 7
Marco Peres Useche, El Papel del Gobierno para Superar la Brecha
Digital, 9 REV. PROP. INMATERIAL 117, 120 (2006).
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evolved to the right to free access to Wi-Fi or the Web and, in
some countries, to bandwidth. Some of the factors that preclude
that low-income and minority individuals, as well as communities,
from fully participating in the technology era are: lack of
relevant content (much content dedicated to sales and commerce and
not to community needs); the need for literacy (when faced with a
considerable amount of available information, citizens need to tell
the important and trustworthy from the superfluous and
untrustworthy); lack of adequacy in bandwidth, as broadband is
necessary for its effective use, and eliminating fear of technology
usage.8 Analyzing access to technologies, applications, the
knowledge regarding the use for those applications, search engines,
and content access and comprehension is essential.9 Although most
countries have reported an increase in the use of technology,10
this can create the false impression that the divide has been
closed based exclusively on the access to equipment. However, the
intensive use of this technology entails other challenges, like
voluntary and involuntary divulgation of information for third
parties including the State, of which users are not aware.
Therefore, it is not about whether or not people possess the
hardware. The divide revolves around the intelligent use of that
equipment like for example, be able to gather useful information
and participate in governmental decision making, in a way that does
not compromise individual rights. Puerto Rico 8 Id. note 3 at 811.
9 Id. note 7 at 122. 10 The Global Information Techonology Report
2015 www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf
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In Puerto Rico, according to the 2011 US Census, 45.6% or the
population lives in poverty. This percentage is higher than
Mississippis, considered to be the poorest state of the union, with
22.6% of the population regarded as poor. The lack of economic
resources makes access to justice more difficult, which results in
a profound inequality regarding opportunities, benefits and
services.11 There are 1,764,635 persons in Puerto Rico who, albeit
having an income, cannot avail themselves of legal representation
due to lack of resources and the high cost of legal counsel.12
Although Puerto Rico figures among the top nations in the world
when it comes to presence in social networks, it lags in home
Internet and computer penetration.13 This is known as a digital
paradox: Puerto Rico holds the 11th position on presence in social
networks, but drags in the 55th position regarding internet
penetration, and in 32nd place on the subject of home computer
ownership.14 The interconnectivity alluded in the 2015 World
Economic Forums report presents a dichotomy between countries that
have greater access to technological equipment and the web, and the
productive use of these technologies. The top places on information
technology are filled by nations such as Singapore, Finland and
Sweden, followed by the Netherlands, Norway, Switzerland, the
United States, the United Kingdom, Luxembourg, and Japan. Puerto
Rico occupies the 44th place.15 11
https://www.census.gov/prod/2012pubs/acsbr11-01.pdf 12 Id. 13 Id.
note 10. 14 Id. 15 Id.
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Within Latin America, Puerto Rico places behind Chile (38) and
Barbados (39). Uruguay (46), Costa Rica (49) and Panam (51) round
out the top five places in the regional classification.16 The
correlation between the level of wealth of the top nations on the
list and their placing regarding information technology is not mere
chance. Inequality perpetuates poverty, and we see it reflected on
access and knowledge of information technology. The 2005 Digital
Divide Report concluded that there is a relationship between the
development of information technologies and the income of their
citizens.17 It identifies poverty as the main cause of the digital
divide. In developed countries, it aims to address this problem
through access to the Internet. More than a technology problem, the
digital divide is an economic and political problem for others.18
The more governmental, commercial and social processes are
conducted via internet, the lack of access because of economic
resources, race, or physical, mental or sensory disability will
leave those who may not access it in a situation of profound
inequality.19 There is a commitment from a sector of the legal
profession to the effect that the new technologies not turn into
yet another layer of complexity and discrimination against clients
and individuals. This sector proposes an analysis of 16 Id. 17
http://www.unctad.org/en/docs/iteipc20065_en.pdf. 18 Id. note 7 at
125; Id. note 1 at 536: New Communications technologies can help
correct this, if they are properly used to focus and direct
political dialogue. The justice divide, just like the digital
divide, can be closed, but first we must understand that the divide
is neither cause by, nor can it be corrected by, the market or the
machine. We must understand that the digital divide, like the
justice divide, is a political divide. 19 Id. note 3.
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the intersection between the digital divide and legal services,
in order to join efforts that may guarantee equal access to these
technologies, thus stemming inequality.20 A 2014 poll made by
Estudios Tcnicos de Puerto Rico revealed that, out of 1,253,690
homes polled, 622,098 stated that they did not have access to the
internet, and 522, 587 did not own a home computer; out of the
712,103 who reported owning a computer, 152,015 do not have it
connected to the internet; the higher the level of education, the
greater the incidence of computer ownership; specifically, out of
those who said they owned a computer, 30.4% reported having less
than the equivalent of a high school education; 62% had completed
high school, an associate degree or some college studies; and 85.5%
had a college degree or higher.21 This same poll reflected that
76.7% of those polled on the Island access the Internet through
their cellular telephones, 53.9% through their computers, 14.5%
using tablets, and 6.6% via their work computers.22 There is a
correlation between the population with socioeconomic profile below
poverty that owns smartphones even if they do not own a home
computer.23 Access to the web from smartphones is greater than
access from personal computers. 58% of the population of Puerto
Rico 20 Id. note 3 at 811. The sense of inequality used in this
paper is about the difference principle developed by Rawls. In the
combination of the difference principle with the principle of fair
equality of opportunities, Rawls aims to provide an alternative to
both the system of natural liberty and the liberal principle of
equal opportunities. Rawls, Theory of Justices (1971 ) . 21 2014
Sales & Marketing Executives (SME) Digital & Mobile
Behavioral Study. 22 Id. 23 The market penetration, deals, no
credit check, offers, cash payment, and pre paid cellphone cards,
among others, enable a part of the population with limited
resources, to have access to smart phones using money from the
underground economy, whether legal or illegal, to purchase and use
them.
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aged 12 and older is connected to the Internet. This percentage
is the equivalent of 1,827,239 users. This is expected to increase
to 60% for 2015. The study also reveals that those with higher
education and income levels demonstrate a higher rate of connection
to the Internet. In the 2014 SME Digital & Mobile Behavioral
Study, the percentages of Internet connection by family income were
as follows: Below $14,999: 44.3%. (Below the 45.5% registered in
2013.); $15,000 - $30,000: 62.4%. (Below the 67.5% registered
2013.); $30,000 - $49,999: 94.1%. (Above the 93.3% registered
2013.); $50,000 - $74,999: 100%. (Above the 91.7% registered in
2013.); $75,000 or more: 100%. (Above the 88.9% registered in
2013.)24 Regarding the preferred connection methods in Puerto Rico,
the breakdown is as follows: Cellular telephone: 75.2%. (Above the
70.3% registered in 2013.); Personal computer: 54.2%. (Below the
62.9% registered in 2013.); Tablets: 14.5%. (Above the 12.0%
registered in 2013.); Computer at a place of work or study: 6.3%.
(Below the 13.1% registered in 2013.); Mp3 (iPod): 5.0%. (Above the
3.6% registered in 2013.); Videogame consoles: 3.8%. (Below the
5.8% registered in 2013.); Family or friends computer: 2.2%. (Above
the 1.8% registered in 2013.); Handheld electronic games: 2.0%.
(Slightly below the 2.4% registered in 2013.)25 The study conducted
by the Sales and Marketing Executives Association of Puerto Rico
also provides additional data regarding the patterns and tendencies
of Internet use on the island. For example, 98% of Internet users
have a broadband connection, which is the equivalent of 1,790,695
persons. 85.4% of the population 24 Id. note 21. 25 Id.
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aged 12 years and older has a cellular telephone, or the
equivalent to 2,690,453 persons. Of that 85.4%, 61.1% has a smart
phone, and 81.7% of this group uses the cell phone to access the
Internet. This is an increase from the 74.7% registered in 2013.
60% of those polled claim to have a personal computer at home.26
The increase in population having a smart phone or accessing the
Internet from a personal computer: does it mean that the digital
divide has been broached? I propose a broader definition of digital
divide that addresses the knowledge of technology and of the
implications regarding its use. This definition is not limited to
whether or not a particular citizen has a computer or access to the
Internet. I add to this analysis its potential correct use for
social and economic development as an engine that propels change
and lessens inequalities. I also add to this approach the
information that is shared, knowingly and unknowingly, each time an
individual has access to technological hardware and to the Web.
This is the greater concern from an inequality standpoint, as
people without knowledge about their individual rights and
liberties renounce voluntarily or involuntarily to them, vis a vis
those who master, know and practice the pertinent precautions when
using technological hardware and the Web. By doing so, I propose
that the digital divide is no longer limited to the ownership of
technological equipment. The concept has evolved to include the
lack of users knowledge regarding the potential for development
that these new technologies propose, as well as regarding the
privacy they reject and expose when 26 Id.
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using these technologies without full knowledge of the digital
print they create and of the legal consequences of access to it by
third parties and by the State. The governments of developing
nations seek consensus regarding technological changes so that
citizens and businesses can develop and access information that
might generate wealth and wellbeing.27 The social divide stemming
from the use of information technologies has been identified as a
priority to be addressed by those nations aiming for digital
inclusion. In the Global Information Technology Report 2014,
Rewards and Risks of Big Data, Cisco CEO John Chambers stated: I
believe we are currently experiencing the biggest fundamental
change the world has seen since the initial development of the
Internet as people, processes, data and things become increasingly
connected. We call this the Internet of Everything (IoE), and it is
having a profound impact on individuals, businesses, communities
and countries.28 It is within the context of that Internet for
Everything that studying the impact of the inadequate use of the
Internet and the renouncing of civil liberties, like the ones
derived from privacy, becomes necessary. Reflection and analysis
regarding the implications of lack of knowledge on the adequate
uses of technology brought about by inequality in access to justice
and information is imperative.
II. Creation, storage and use of electronic and digital
evidence: privacy, conservation issues, authentication and use in
judicial processes.
27 Id. note 7. 28 The Global Information Technology Report,
2014, Rewards and Risks of Big Data. World Economic Forum, p. Vii.
We will use the term internet of everything.
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Individuals with little access to educational tools and legal
knowledge of individual rights use technological equipment unaware
of the evidence they are generating. The right to privacy,
constitutionally consigned in the United States and Puerto Rico, is
voluntarily forfeited by those who do not know the implications of
the reckless use of technologies without having adequate
information. The repeated use of technology can create a digital
print. The use by the State of that print against its citizens is
increasingly frequent and easy. Social media Millions of people use
Facebook as a platform to exchange personal or business
information, as well as to share pictures, videos and data. They
place private information on Facebook about their families,
personal relationships, and more. Very few people use the available
security options, even though Facebook clearly states in its policy
that the expectation of privacy is minimal. There is no such thing
as a private network because, when one person friends another, he
or she may have access to information placed on that persons wall
by a third party. The same happens with uploaded photographs when
users agree to allow members of the Facebook community to tag,
share or like, causing those photographs to appear on their walls.
In family law cases in Puerto Rico as well as in other countries,
Facebook pages are used as circumstantial evidence of purchasing
power to establish the right to child support, custody, and
subjects related to the causes for the divorce.29 In the 29 See,
Clayton Russell B., The Third Wheel: The Impact of Twitter Use on
Relationship Infidelity and Divorce, en Cyberpsychology, Behavior
and Social Networking, July 2014, Vol. 17, No. 7: 425-430.
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criminal area, it is common practice that undercover agents use
these networks to launch operatives against child pornography and
child abuse.30 Information that is voluntarily uploaded can, and
is, used by the State in those cases, or it can be accessed through
a third party who provides or shares that information.31 Twitter
The information placed on Twitter is stored by the United States
Library of Congress in order to collect universal information about
contemporary human knowledge.32 This historic registry, dominated
by exchanges that are at times insulting, or by individuals
referred to as trolls, or behind anonymous identities, make up the
digital print of each user. This print cannot be erased and remains
preserved for posterity. Emails Sending emails exposes their
content to be intercepted by a third party while en route and after
it being received and read. Everything we delete remains registered
in our hardware and in servers via each files metadata.33 The
option to delete does not eliminate the metadatas content.34
Deleted emails are more difficult,
30http://www.elnuevodia.com/noticias/seguridad/nota/granoperativocontrapornografiainfantilenpuertorico-2031728/
31
http://www.primerahora.com/noticias/policia-tribunales/nota/alacazadepedofiloseninternetintedepredadores-213194/.
32
http://www.nytimes.com/2010/04/15/technology/15twitter.html?_r=0.
Historians and scholars of sociology have expressed their joy about
this decision: This is an entirely new addition to the historical
record, the second-by-second history of ordinary people, said Fred
R. Shapiro, associate librarian and lecturer at the Yale Law
School. 33 Vase, Vivian I. Neptune Rivera, Los retos de la
evidencia electrnica, 76 Rev. Jur. UPR337, 344 (2007). 34 Id. a la
pg. 339.
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although not impossible, to retrieve.35 There is also the chain
of custody and the audit trail, which allow the recreation of an
emails transit from its origin to its final destination.36 In
addition, an unauthorized third party may supplant a senders
identity by using a technique known as spoofing.37 In doing so, and
depending on the technology in question, the impostor assumes the
senders identity. It must be pointed out that equipment without
security systems or protection are more vulnerable to this mode of
intervention. Security Encryption services have gained popularity
as the most secure way to transmit information. Through the use of
public and private keys, information shared on the Web may be
protected. Only the person with the correct key, or code, may
access and decipher the information. If the information is
intercepted, a third party without the key will not be able to
access it.38 However, this technology is not available to everyone,
with economic and educational factors as determining variables.
Electronic documents
35 Recent cases of disclosure of emails allegedly deleted by
their authors feature Iaki Urdagarns, which demonstrates the
vulnerability of the alleged security measures that technological
equipment provide. Sending an email is the equivalent of sharing a
message in a public forum, as the risk of it being intercepted and
published without authorization is immense.
http://www.elperiodico.com/es/noticias/sociedad/huella-imborrable-1392784
36 See also, Vivian I. Neptune Rivera, Las redes sociales y los
mensajes de texto: Autenticacin bajo las nuevas reglas de evidencia
de Puerto Rico, 44 Rev. Jur. UIPR 285, 289. (2010); and La
evidencia electrnica y la autenticacin de correos electrnicos, 105
Alfa Redi: Revista de Derecho Informtico (2007). 37
Echterms.com/definition/spoofing 38 Vivian I. Neptune Rivera, La
evidencia electrnica y la autenticacin de correos electrnicos, 105
Alfa Redi: Revista de Derecho Informtico, pgs. 5-6. (2007).
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It is imperative to underline that documents that are created in
a digital format are not erased or eliminates, but rather only
transformed. When we send a document to the trash bin, as well as
when we delete emails or files, we merely hide those files so that
we may write over them.39 But the overwritten file may be
recovered. This also applies to photographs, text messages, emails
and visits to Web pages, among others. Text messages In many
scenarios, text messages have taken the place of emails. The high
volume of messages exchanged daily has pushed service providers to
institute policies for the rapid erasing of these messages. This
does not preclude that an erased text message may be recovered,
although doing this requires more resources and effort. Many
citizens who use their cellular telephones to send text messages do
not know that providers archive the totality of those messages
content and, although a person might erase it from his or her
individual telephone, the erased text may still be recovered.40
Digital print renouncing the right to privacy The digital print
cannot be erased. Smart phones store countless amounts of data,
photographs and information that we share with our providers
server, and that may be easily hacked into. Also, when accessing
unfamiliar Wi-Fi networks such
39 Id. note 33 at 344. 40 See, State v. Taylor, 178 N.C. App 395
(2006). In a murder trial, the Nextel Communications technician
testified that Nextel kept all of its clients text messages,
authenticated them and got them admitted into evidence to identify
the accused as the perpetrator of the crime.
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as those provided for free at airports, we exchange data that
may be easily intercepted. Are citizens aware of this reality?
Concerned citizens have started movements such as the Right to
being forgotten, sparked from litigation between the Spanish Agency
for the Protection of Data and Google.41 Erasing, blocking or
keeping out of the Internet any mention or uploaded information,
with or without authorization that may undermine the right to
privacy or individual rights is the reason behind this movement.
30-year-old information about a person that has been posted on the
Internet, with or without authorization: is it relevant? Should it
mark that persons life? These concerns are among those generated by
this increasingly accepted movement, particularly in European
countries. The judicial sentences and victories obtained from these
struggles suggest an achievement in the conservation of the right
to privacy. The employment context Potential and current employers
consult the networks with increasing frequency to check on the
digital fingerprint of possible candidates for employment and of
current employees. There is jurisprudence from Puerto Rico, the
United States and Europe regarding the firing of employees as a
result of images or
41 The European Unions Court of Justice recognized in its
sentence from May 13, 2014, in the case between Google Spain, S.L.,
Google Inc. and the Spanish Agency for the Protection of Data
(AEPD), Mario Costeja Gonzlez, the right of citizens to have search
engines erase from their lists information that may expose certain
citizens rights. At the same time, the Audiencia Nacional de Espaa
recognized the right to be forgotten in four separate sentences
against Google in cases presented by private citizens who requested
the erasing of links to information that affected their private
lives.
http://www.abc.es/gestordocumental/uploads/Internacional/sentenciagoogle.pdf.
http://politica.elpais.com/politica/2015/01/23/actualidad/1422015745_590889.html.
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comments posted on social media.42 This illustrates the
potential use by third parties of information posted on the Web,
which an individual uploads voluntarily trusting in a
pseudo-intimacy thinking that the exchange is private. It simply is
not. It becomes clear that using the Internet or technological
equipment such as smart phones, generate information in metadata
format, which may be used, intercepted or simply shared by third
parties with serious consequences in the private, personal,
commercial, and employment arenas. Inequality in the access to
knowledge of the rights to privacy in these devices and systems
constitute the new digital divide. III. United States and Puerto
Rico cases regarding the use of electronic evidence by the State,
and the right to privacy as an access to justice issue. Technology
does not incorporate inequalities, inequality exists in a
communitys living conditions.43 This phrase illustrates the
inherent risk that social and economic inequality has on
technological inequality. That which is voluntarily shared in the
Internet can be used by the State against its citizens. By the same
token, a search warrant may offer access to the content of cellular
telephones, internet accounts, servers, and computers, in cases
where information has been involuntarily uploaded or shared and is
inaccessible. Are citizens aware of this situation? Our answer is
no, which creates a situation in which the inequalities 42 Fabin
Valero Moldes, La actividad en las redes sociales como causa de
despido, publicado en El Derecho,
http://www.elderecho.com/laboral/actividad-redes-sociales-causa-despido_11_570430002.html.
43 Id. note 7 at 117.
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between those who have knowledge and scholarship and those who
dont become even greater. Federal Cases from the United States In
its 2014 case Riley v. California44, which is the leading case
regarding the search of electronic data in cases where a cellular
telephone is seized incidental to an arrest, the United States
Supreme Court stated: [.] [A] cell phone search would typically
expose to the government far more than the most exhaustive search
of a house: A phone not only contains in digital form many
sensitive records previously found in the home; it also contains a
broad array of private information never found in a home in any
formunless the phone is.45 [A]pplying the Gant standard to cell
phones would in effect give police officers unbridled discretion to
rummage at will among a persons private effects. 556 U.S., at en
345, 129 S.Ct. 1710. , [] Our holding, of course, is not that the
information on a cell phone is immune from search; it is instead
that a warrant is generally required before such a search, even
when a cell phone is seized incident to arrest. Our cases have
historically recognized that the warrant requirement is an
important working part of our machinery of government, not merely
an inconvenience to be somehow weighed against the claims of police
efficiency. Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971).46 The Supreme Court concluded that,
although the search incidental to an arrest does not apply to
mobile telephones, other exceptions can justify the search of a
cellular telephone without obtaining a warrant. One of those
exceptions is known as exigent circumstances, and it underlines
that cellular telephones currently
44 Riley v. California, 134 S.Ct. 2473 (2014). 45 134 S.Ct.
2473, Id. at 2490-2491. 46 134 S.Ct. 2473, 2493.
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contain very revealing information regarding the private and
intimate life of citizens. The Court added: The fact that
technology now allows an individual to carry such information in
his hand does not make the information any less worthy of the
protection for which the Founders fought. Our answer to the
question of what police must do before searching a cell phone
seized incident to an arrest is accordingly simpleget a warrant.47
In U.S. v. Stile48 the State obtained a warrant to search the home
of the accused, who was suspected of committing a robbery. During
the course of the search, a second order was obtained for a more
specific search of items found within the home, including the
content of data stored in computers and cellular telephones. The
controversy emerged because police officials searched the texts
messages inside the telephone before obtaining the second order.
These messages placed him at the scene of the robbery. Stile filed
a motion to suppress evidence, citing Riley. The Court concluded
that, although the Riley warrant requirement applied, the
suppression would not be granted because the State obtained the
second order, and the result would have been the same (the
gathering of evidence and the filing of charges). In U.S. v.
Saboonchi,49 the charge was that Saboonchi violated the Iranian
Transactions and Sanctions Regulations espoused under the
International Emergency Economic Powers Act. Saboonchi has
previously filed for a suppression of evidence obtained as the
result of the search of his cellular telephones and of a 47 134 S.
Ct. 2494-95. 48 2014 U.S. Dist. LEXIS 144241. 49 2014 U.S. Dist.
LEXIS 102261.
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flash drive, which were carried out without an order. These
searches were conducted under the authority of the border search
doctrine, after having been seized at the border between the United
States and Canada. The motion to suppress was denied. Once the
Riley decision was published, Saboonchi filed for a reconsideration
of the motion to suppress as per that case. The motion was once
again denied, as Riley does not contemplate a border search
exception. U.S. v. Clark50 dealt with the seizure of Clarks
telephone incidental to his arrest. Immediately after the seizure,
a police officer searched through the call registry and through
some text messages without having obtained an order. During his
interrogation at the police precinct, the officer and the accused
went over part of his telephones content, including messages,
tweets, calls and photographs, still without having a valid
warrant. It was at the very end that the accused was asked to sign
an authorization to download the full content of his telephone,
which Clark signed. Clark moved to suppress the evidence obtained
from his telephone because of the lack of a warrant. The officer
argued that, although she understood that an order was necessary,
this requirement only applied to certain types of data, and not to
the call registry, messages and other information that may be
easily accessed without specialized equipment. The Court denied the
motion to suppress for two reasons: 1) because the officer believed
in good faith that the warrant was only for certain types of
searches, and 2) that deference must be given to State Courts in
the evaluation of the evidence (the officers investigation and her
perceptions were part
50 2014 U.S. Dist. LEXIS 86807.
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of the evidence submitted). The court recognized Rileys
validity, but concluded that these two reasons present a reasonable
exception. The case In re The Search of Premises Known as: A Nextel
Cellular Tel. with Belonging to & Seized from,51 dealt with a
request for a warrant to search a cellular telephone. The telephone
in question was seized incidental to a drug arrest, where 15 pounds
of methamphetamine were also seized from the arrested persons
vehicle. The State requested the warrant in order to conduct a full
forensic search of the telephone. The warrant was denied under
Riley because it was too vague, and because it did not specify the
particular protocol of what and how the search would be conducted.
The individuals vulnerability before the States power presents a
large enough imbalance so as to proceed with caution when
requesting permission to search of the data stored in a telephone,
where the owners life is also stored there too. The State must
provide precise parameters if it wishes to rummage through a
telephones data, especially when dealing with smart phones. Another
example is People v. Weissman, 52 where a court official caught
Weissman taking pictures with his telephones camera during a
criminal trial. Weissman was there as a spectator. The officer
asked Weissman to show him the photographs in his telephone,
confirming that he had taken pictures during trial in violation of
the Courts rules. Three charges of criminal contempt were filed
against Weissman. Weissman moved to suppress the photographs under
Riley because, when the officer asked him to show the photographs,
he had not obtained a warrant. The court granted the motion to
suppress. 51 2014 U.S. Dist. LEXIS 88215. 52 2014 N.Y. Misc. LEXIS
3831.
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Finally, in Commonwealth v. Stem,53 Stem was arrested because of
a domestic violence incident. His cellular telephone was seized
incidental to the arrest. Handcuffed and already in police custody,
the arresting officer searched his telephone, where he found
multiple photographs related to child pornography. These
photographs were the basis for the later filing of 17 charges of
child pornography against Stem. The accused moved to suppress the
evidence (the photographs), because they were obtained without an
order. Citing Riley, the lower court granted the motion to
suppress, even though the photographs were the basis of the
charges. The Court of Appeals sustained, and ordered the
suppression of the photographs and of its fruits. Cases from Puerto
Rico In Puerto Rico, in Pueblo v. Lpez Coln,54 Lpez was accused of
homicide and violation to the Weapons Law. While investigating the
scene of the crime, after having arrested Lpez, the agents realized
that there were security cameras pointed at the scene of the crime.
It turns out that these cameras were installed in Lpezs home.
Without knowing that that was his home, the agents asked the
resident and wife of the accused, Mrs. Coln, for access to the
camera recordings, to see if they contained any valuable
information. Mrs. Coln not only gave them access to the video, but
also let them take the DVR. In addition, Coln alerted them to the
presence of Lpezs cellular telephone, stating that perhaps it might
contain information relevant to the investigation. Coln informed
them that she was the
53 96 A.3d 407 (2014). 54 KLCE201400971.
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22
owner of the telephones service account and voluntarily
surrendered the device when the agents asked for it. Lpez filed a
motion to suppress evidence regarding his telephones data, stating
that it was seized without a warrant. He also argued that his wife
did not have the authority to comply with the officers requests
regarding his telephone. The lower court denied the motion,
explaining that Coln had the authority because she was the
titleholder of the service account. It added that Coln surrendered
the device voluntarily and without being subject to intimidation or
coercion from the State. Lpez first requested a reconsideration,
which was denied by the lower court, before filing a certiorari.
The Court of Appeals discussed the balance of interests between the
reasonable expectation of privacy and the compelling interests of
the State. It also went over the principle of reasonability and
what constitutes express and tacit consent. It concluded that the
motion to suppress could not proceed, since Coln, as the
titleholder of the service account, had the authority to surrender
Lpezs telephone. In addition, such surrender was voluntary, which
validates the consent. The fact that Lpez was the only user for
that device does not annul Colns authority to dispose of it.
Regarding Riley, mentioned in footnote #4, the Court of Appeals
stated that it did not apply in this case. It explains that, in
Riley, the telephones seizure was incidental to the arrest of the
accused, he was the devices owner, and did not consent to the
States intervention. Here, the seizure was not incidental to the
arrest and the owner surrendered it voluntarily.
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In the area of civil litigation in Puerto Rico, in Weber
Carrillo v. ELA,55 Puerto Rico Supreme Court dealt with a
controversy where the State investigated the identity of a person
who was called by one of its agents from his official telephone
right before and during a police operative. Upon identifying one
number as belonging to reporter Carlos Weber, the State requested
that Cingular, then a cellular services provider, provide the bill
and the call history belonging to that telephone. Mr. Weber later
learned that Cingular had indeed provided the requested information
and sued for violation to his civil liberties and torts, among
other claims. The Puerto Rico Supreme Court resolved that the State
may not obtain a citizens call registry without previous
notification or obtaining a court order to that effect, even in
cases where the person whose logs are requested is not the target
of a government investigation. An individual has a reasonable
expectation of privacy over his or her call registry, particularly
when that information is in the hands of a third party. The Court
added: The right to privacy enjoys the highest hierarchy in our
constitutional order and applies ex proprio vigore. The Puerto Rico
Constitution protects people against abusive attacks against their
personal lives and precludes unreasonable searches and seizures of
an the home, papers and personal effects of its citizens. [] [I]t
is imperative that we protect the privacy of a citizen who is not a
suspect, when faced with the possibility that a third party that
possesses his or her information might divulge it to any government
agency that requests it.56 55 2014 TSPR 46. 56 2014 TSPR 46, pages
3-4. Original quote: El derecho a la intimidad goza de la ms alta
jerarqua en nuestro ordenamiento constitucional y aplica ex proprio
vigore. La
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24
The Court emphasized that, in order to evaluate whether there
has been a violation of federal Fourth Amendment rights or of those
rights consigned in sections 8 and 10 and in article 11 of the
Puerto Rico Constitution, it is necessary to determine if that
person had a reasonable expectation of privacy over the place or
the article to be searched, and if such an expectation is
reasonable in light of the prevailing social criteria at the time.
In this case, the fact that the entity that held the information
was a third party that was not the target of an investigation
weighed heavily, provoking the granting of judicial protection
against the States intervention. The Court recognized that the
telephone has become an essential tool to carry out personal
transactions. The Court categorically rejected that, by providing
information for billing purposes related to calls made, telephone
company clients cease to have a reasonable expectation of privacy
opposable to State requirements.57 The words exchanged during a
telephone conversation are not the only source of information
related to the content of our calls. Who we call, when we call, how
frequently we call, and for how long we speak is the equivalent,
undoubtedly, of content. We have no doubt that there is a
subjective expectation of privacy over the call registry that a
person makes, and that society deems that expectation to be
reasonable. [] Constitucin de Puerto Rico protege a las personas
contra ataques abusivos a su vida personal y prohbe los registros,
allanamientos e incautaciones irrazonables sobre la persona, la
casa, los papeles y los efectos de los ciudadanos y las ciudadanas.
[] [S]urge la necesidad imperante de proteger la intimidad del
ciudadano que no es sospechoso ante la posibilidad de que el
tercero que posee informacin suya la divulgue a la agencia de
gobierno que se la solicite. 57 2014 TSPR 46, page 9.
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[A] person has a reasonable expectation of privacy over his or
her call registry. Therefore, the NIE should have notified
plaintiff about the registry, or obtained a court order to obtain
such information. 58 The Court concluded that the State had the
right to investigate the identity of the person called by one of
its agents from his official telephone just before and during the
operative, as it was an entirely reasonable request, but it also
concluded that the request for the surrender of the bill and the
call registry of that cellular telephone was not reasonable. The
bills illustrating how Mr. Weber used his telephone during the
month of February were not reasonably relevant to the specific
matter under investigation. These cases show that judicial forums
have recognized the impact that the use of technology has had in
the lives of citizens. In that context they have extended the right
to privacy and the protection against searches without a warrant to
cellular telephones and complementary equipment such as memory
back-ups, placing the burden of proof upon the State to obtain a
warrant. However, that order provides access to information stored
by that equipment, sometimes unknowingly, which the state may
retrieve to be later used against a citizen. The less knowledge
citizens have about the information stored within their hardwares
and its accessibility via forensic processes, the more vulnerable
their individual rights will 58 2014 TSPR 46, pps. 10, 11. Original
quote: Lo hablado durante una conversacin telefnica no es la nica
fuente de informacin relacionada al contenido de nuestras llamadas.
A quin llamamos, cundo los llamamos, con qu frecuencia los llamamos
y por cunto tiempo hablamos con ellos equivale, sin duda, a
contenido. No nos cabe duda que hay una expectativa subjetiva de
intimidad sobre el registro de las llamadas que hace una persona y
que la sociedad entiende que tal expectativa es razonable. [] [U]na
persona tiene una expectativa razonable de intimidad sobre el
registro de llamadas de su telfono, por lo cual el NIE debi haberle
notificado al demandante sobre el registro u obtener una orden
judicial que le autorizara a requerir dicha informacin.
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26
be in case that the State decides to act against them. Lack of
knowledge about the full implications of using smart phones, social
media and computers, regarding the data they generate which cannot
simply be completely eliminated, creates inequality between
citizens and disrupts access to justice.
IV. Conclusion The advantages of using technology and of the
interconnectivity between individuals, communities and nations are
multiple and varied. On the subject of access to justice, it
becomes evident that technology needs to help overcome inequalities
in such access, by making available to citizens content such as:
that a potential litigant may easily find legal information
regarding his or her rights, apply electronically for judicial
assistance, speak to a public defender from a tablet or personal
computer, find and fulfill the necessary forms to submit in court,
have access to the courts and to their electronic files in order to
present a reply to a lawsuit and check his or her cases progress,
and use the internet to reach another lawyer at a larger city,
should the case become complicated.59 However, all the positive
potential for the use of new technologies and the Internet to
achieve access to justice is lessened by the risks to the citizens
right to privacy. The lack of knowledge about the implications of
accessing the operating system in a smart phone, PC, tablet or of
accessing a Wi-Fi network in an airport or shopping center, places
those who ignore their consumer rights or their right to privacy at
a disadvantage. In the frenzy generated by the exchange of
information, 59 James Cabral, Using Technology to Enhance Access to
Justice, 26 HARV. J.L. & TECH. 241 (2012).
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27
data, and photographs in social media and the Internet, users
forfeit their right to privacy guaranteed by the Puerto Rico and
United States Constitutions. It no longer is about talking about
how many homes have computers and whether or not they are connected
to the Internet. Nor about continuing to increase the dizzying
increase in ownership and use of smart phones. The reality is that
each day more persons connect to the Web, purchase smart hardware,
and store information in the cloud or in local memory back-ups.
From that standpoint, it is time to recognize that the digital
divide goes beyond the mere ownership of these hardwares and of
access to the Web. The social chasm provoked by the inequality in
cultural, economic and educational backgrounds place a sector of
the population in a vulnerable position. Access to justice is
limited by the digital divide when vulnerable sectors, unknowing of
their rights, continually create digital evidence which may be used
against them in the future. Not knowing the impact of that digital
print aggravates the digital divide. It is imperative to articulate
a proposal towards closing the digital divide discussed here, which
incorporates the concept of access to justice and the full
knowledge of rights opposable before the State as indispensable
steps to eradicate inequality.
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Addendum 1 In the tests made regarding the Internet, broadband
and interconnectivity, the 1999 reports entitled Falling Through
the Net showed that, while Americans are connected to digital
equipments, there existed a digital divide between certain
demographic groups and regions.60 The report states: In examining
the "least connected," households earning lower incomes, those with
lower education levels, those located in the South, and those under
the age of 25 have consistently had lower computer ownership rates.
In particular, households earning low incomes and living in rural
areas have repeatedly reported the lowest penetration rates. Rural
black households have also remained the least likely group to own a
PC (2.7% in 1984, 17.9% in 1998), followed by Hispanics living in
central cities (3.1% in 1984, 21.4% in 1998). Variables in Computer
Penetration. Income continues to strongly influence computer
ownership rates. In 1984, households earning $75,000 and higher
were far more likely -- by twenty percentage points -- to own a PC,
than households earning less than $5,000. Since 1984, the gap in
PC-ownership rates has continued to widen. Nearly 80% of households
earning above $75,000 owned a PC in 1998 -- sixty-four percentage
points above (or five times more than) those at the lowest income
level. Low-income households in rural areas have remained the least
likely to own a computer. Race/Origin also remains closely
correlated with computer ownership. In 1984, White households owned
nearly twice the number of PCs as Black and Hispanic households.
"Other non Hispanic households" trailed White households, on the
other hand, by only 0.4 percentage points. Between 1984 and 1998,
White households' penetration rates increased approximately
fivefold, and all other race/ethnic groups experienced
approximately a sixfold increase. Because of their similar growth
rates, White households continued to own computers at a rate
roughly twice that of Black and Hispanic households in 1998.
Beginning in 1989, however, "other non Hispanic" households began
to exceed all groups in PC ownership. Location has also influenced
the rate of PC ownership among race/ethnic groups. Black and "other
non Hispanic" households in rural areas have remained far less
likely than those in urban areas or center cities to own a
computer, while Hispanic households in central cities have lagged
behind those in rural and urban areas. 60 US. Dept of Co., Falling
through the Net: Defining the Digital Divide.
http://www.ntia.doc.gov/legacy/ntiahome/fttn99/contents.htm.
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Education remains closely correlated with computer ownership.
Indeed, between 1984 and 1998, the gap between households with an
elementary education and those with a college degree or higher has
increased significantly. In 1984, the gap between these two groups
was approximately fifteen percentage points; in 1998, the gap rose
to approximately sixty-one percentage points. Household type also
plays a significant role. Married couples w/children have remained
the most connected group, particularly in urban areas. Non-family
households have remained the least connected group, especially
those in rural areas. One significant change is the rapid increase
(more than eight-fold) in computer ownership among "family
households without children." In 1984, that was the second least
connected group; in 1998, it was the second most connected group.
Also significant is the widening disparity between male and
female-headed households. In 1984, there was little difference
between the two (6.7% for female-headed versus 6.9% for
male-headed). In 1989, however, PC penetration rates among
male-headed households began to soar, creating a significant gap
with female-headed households (31.7% for female-headed versus 35.0%
for male-headed). This gap has only begun to narrow in recent
years. Age is becoming less determinative of computer ownership. In
1984, the 35-44 year old group was significantly ahead of other age
groups. In 1998, it was only marginally ahead of the 45-54 year old
group and slightly ahead of the 25-34 year group. Most
significantly, seniors appear to be catching up, due to a ten-fold
increase in PC ownership between 1984 and 1998. In 1984, there were
approximately six times as many with PCs in the 35-44 year category
as in the 55+ category (15.5% compared to 2.5%); in 1998, that
ratio dropped to a little more than double (54.9% versus 25.8%).
Households under 25 are also gaining ground: in 1984, the 35-44
year group was three times as likely to own a PC as those under 25,
but was about 1.7 times as likely in 1998. Those households under
25 living in rural areas are still the least likely, however, to
own a PC. Region. The West has remained significantly ahead of
other regions in computer ownership from 1984 to 1998.
Significantly, the Northeast was the second highest connected
region in 1984 (8.5%); but in 1997, the Midwest took second place
(42.9%. Meantime, the South (particularly the rural areas) has
lagged far behind other areas in PC penetration rates. Those
Americans enjoying the greatest connectivity today are typically
high-income households. Holding income constant, other
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30
highly connected groups include Whites or Asians, middle-aged,
highly-educated, employed, and/or married couples with children,
most often found in urban areas and the West. Conversely, the least
connected generally are low-income, Black, Hispanic, or Native
American,(3) senior in age, not employed, single-parent (especially
female-headed) households, those with little education, and those
residing in central cities or especially rural areas. These
profiles generally prevailed during 1989-97 albeit some changes
occurred (e.g., the South fell into last place among regions).
Income. From 1989 through 1997, modem ownership increased for all
income levels. Penetration rose tenfold in income brackets below
$20,000 and increased at a decreasing rate in the higher income
brackets, registering growth of 4.2 times at the $75,000 and over
bracket. Despite greater growth rates by the lower income
households, the percentage point gap between lowest and highest
penetration (for the $5,000-9,999 group versus the wealthiest
households) grew from 13.4 percentage points in 1989 to 56.5
percentage points in 1997. During this period, rural areas have
generally experienced greater growth than central city and
especially urban areas, but generally still trail the other two.
Race/origin. During 1989-97, household modem penetration rose in
every category of race/origin. White non-Hispanic, Black
non-Hispanic, "Other non Hispanic," and Hispanic each grew
eightfold or more. Because White and "Other non Hispanic"
households started from a higher proportion, the digital gap has
widened considerably compared to Blacks and Hispanics. For example,
the frontrunner "Other non Hispanic" group (e.g., American Indians,
Aleuts, Eskimos, Asians, Pacific Islanders) outdistanced Blacks and
Hispanics by more than 22 percentage points in 1997, compared to
2.0 and 2.22 in 1989. That pattern generally holds whether rural,
urban, or central city, although White households have the highest
penetration in rural areas (24.6%). Education. During the
eight-year period (from 1989 to 1997), the digital gap mushroomed
to more than a fivefold increase (from a 8.6 to a 46.3 percent
point difference) between those households of the lowest and the
highest educational levels. This result can be explained largely in
terms of the very low penetration rates exhibited by the
less-educated households in 1989. This pattern generally holds in
rural, urban, or central city areas, with the largest disparity in
rural environs.