Identifying and Challenging Digital Surveillance

In order to protect the rights of clients (and themselves) in the digital age, criminal defense attorneys must be aware of new and evolving methods of surveillance, including the use of so-called whisper stops, Stingrays, cell-tower “dumps,” geofencing warrants, and online genealogical data. Many of these techniques are shrouded in remarkable secrecy and their use by law enforcement is frequently not disclosed in discovery as a matter of course. Relatedly, a body of law has been developing surrounding the use of compelled decryption of telephones—for instance, asking a suspect their cell phone password may implicate Miranda concerns, whereas using a suspect’s fingerprint to unlock the phone may not. These concerns are relatively new, and defenders must make strategic adjustments to how discovery is conducted, how suppression is litigated, and how to meet such digital evidence.

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