By Peter H. Crossin, Esq.

This month, our country is commemorating the 20th Anniversary of the terrorist attacks on the World Trade Center, the Pentagon, and United Airlines flight 93 on September 11, 2001. In response to only the second attack on the U.S. homeland — resulting in the deaths of 2,977 innocent U.S. citizens — we saw life in America change overnight: The Department of Homeland Security and the Transportation Security Administration were created — gone were the days when we could arrive at the airport just minutes before a flight, breeze through a simple metal detector and get on a plane without even showing an ID. Protective concrete bollards sprouted almost immediately along big city streets in front of tall commercial buildings. In response to Americans’ newfound patriotism, Major League Baseball teams began to include performances of “God Bless America” during the seventh inning stretch, instead of singing the traditional “Take Me Out to the Ballgame.” And the George W. Bush administration legislated and passed the Patriot Act.

What is The Patriot Act?

The Patriot Act is legislation passed just weeks after September 11 terrorist attacks to improve U.S. law enforcement to detect and deter terrorism. The Patriot Act is a more than 300-page document passed by the U.S. Congress with bipartisan support and signed into law by President George W. Bush on October 26, 2001.

The Patriot Act: National Security and Individual Rights

The Patriot Act expanded the U.S. Government’s capability to surveil terrorist activities within the U.S. It allowed the government to, amongst other things, use surveillance and wiretapping to investigate terror-related activities without the prohibitions on personal privacy that existed before passage of the Act. The Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet. Interestingly, based on this expanded surveillance allowance, the government, between 2003 and 2005, reported criminal activity related to money laundering, immigration violations, and corporate fraud. The stated purpose of the Act seems to have been more beneficial against criminal activity completely unrelated to terrorist activity and more towards criminal activities by organized and white-collar crime participants.

California’s Right to Privacy

California’s recognition of a citizen’s right to privacy over personal affairs is enshrined in the California Constitution: Article 1, section 1. The state Constitution gives each citizen an “inalienable right” to pursue and obtain “privacy” in one’s personal affairs. The evolution of computer and mobile technology continues to raise questions on the preservation and disclosure of electrically stored information. California statutory and case law authority addresses the fundamental issues surrounding these constitutionally protected rights, particularly with regard to personal computer and cell phone information privacy concerns in litigation.

Computer Data Privacy

A forensic computer expert is capable of searching a computer hard drive to retrieve from it every email, every website, and every saved document a citizen has ever opened or sent on his or her computer. Over the course of the many years since 9/11, an entire industry of experts has emerged to assist attorneys and other investigators in analyzing computer hard drives and retrieving even erased and deleted materials. Discovery has now re-focused from paper documentary evidence to more on electronically stored information. Now, under California law, a request for “documents” is known to include data stored on any electronic device. In one California appellate decision, it was held that information stored on a home computer was “indisputably relevant” when the information bore on the facts and circumstances of the litigation. The court balanced the privacy concerns with the remedy of the parties entering into a protective order to protect against disclosure of relevant personal information. Thus, once litigation is contemplated, it is for the wise attorney and individual party to maintain in a safe locale all hard drives and not to attempt to erase any information from them. Failure to do so could result in severe “spoliation of evidence” sanctions.

Privacy rights must give way to the far more powerful right of access to possible relevant evidence. California law imposes a balancing test in order to determine the level of importance of the possible information to be gained against the rights, interests or policies in discovery. Often, this may be perceived to be invasive of personal privacy concerns. For example, demonstrating that the computer was used for any relevant communications will normally permit discovery allowing for full inspection of the computer’s data. The courts have held that once one uses the computer for such purposes, he no longer has a reasonable expectation of privacy as to its contents. Likewise, courts have reasoned that persons who use e-mail to communicate do not have a reasonable expectation of privacy in those communications. Therefore, caution must be employed by the attorney and party to preserve computer information that may be relevant to the subject litigation. Once receipt of a notice to preserve a computer’s hard drive and equipment is served, erasure or deletion of any computer information may be a violation of the Discovery Act and result in severe sanctions for spoliation.

Cell Phone Records

In defense of a personal injury lawsuit involving, for example, a plaintiff’s trip and fall incident, the plaintiff’s cell phone records may have paramount relevancy. Did the plaintiff’s cell phone inattentiveness contribute to the accident? Was the plaintiff talking on the phone, playing a game, texting? In a recent trip and fall case, the plaintiff’s use of her cell phone– texting 17 minutes prior to and immediately after incident — was evidence of negligence; she was “oblivious to what was happening in front of her” and immediately following the incident “she was preoccupied with her phone.” Such evidence would assist in demonstrating that the plaintiff was a negligent cause of her own injury. Such evidence would also be directly relevant to the accuracy/credibility of plaintiff in her perception of the incident and ability to recall events.

In such circumstances, the court must balance the party’s need for the information against the individual’s privacy right. However, the right to privacy is not absolute with respect to cell phone records. As one court stated “[i]t is well established that a reasonable expectation of privacy extends only to the content of telephone conversations, not to records that indicate that the conversations occurred.” (Emphasis added). The Ninth Circuit has determined that there is no expectation of privacy in call origination, length and time of call because no content information is involved.

Lesson to be Learned

For our clients and any person or entity that finds itself facing litigation, either before or at the time the litigation is commenced, it is important to put in place a plan for handling your electronically stored information to assure preservation of potentially case related relevant information.

Regardless of the derivation and progression of these privacy issues, it is worth remembering President Joe Biden’s words on reflection of the 9/11 event and the resilience of Americans: “We didn’t crumble after 9/11 . . . We’re America. America will never, ever stand down. We endure. We overcome. We own the finish line.”

Peter H. Crossin, Esq.

Peter H. Crossin, Esq. is Special Counsel at Bradley, Gmelich & Wellerstein LLP. Mr. Crossin is an experienced attorney in good standing with vast experience on both sides of the Plaintiff and Defense bars. He is admitted to all courts of the State of California and the U.S. District Court for the Central District of California. He has practiced extensively in the Superior Courts of the State and in the California Courts of Appeal. He has authored and argued over 20 appeals and writs and has exceptional writing and team leadership skills.

Mr. Crossin has held lead positions on the Plaintiffs’ Steering Committees for the California In Re Intraocular Lens and Latex Glove coordinated litigations and defendants in the In Re Welding Rod coordinated litigation. He has prosecuted and defended a myriad of cases involving toxic tort, catastrophic injury, warranty claims, product and premises liability (with a particular emphasis in premises third-party criminal act litigation), construction defect and contract disputes.