California Highway Patrol Nude Photo Theft Scandal May Create Hundreds of Millions In Legal Liability

The Contra Costa Times is reporting that a California Highway Patrol officer has been "accused of stealing nude photos from a DUI suspect's phone" and "that he and his fellow officers have been trading such images for years."  This behavior is not only very troubling, it may violate multiple federal and state computer theft laws and may even trigger California's revenge porn statute. 

The Contra Costa Times further states, "[i]n the search warrant affidavit [for the matter], senior Contra Costa district attorney inspector Darryl Holcombe wrote that he found probable cause to show both CHP officers Harrington and Hazelwood and others engaged in a "scheme to unlawfully access the cell phone of female arrestees by intentionally gaining access to their cell phone and without their knowledge, stealing and retaining nude or partially clothed photographs of them."

This alleged behavior demonstrates why the Riley v. California case is so important.  In that matter, the U.S. Supreme Court held 9-0 that the police generally need a warrant before searching cell phones and electronic devices of those arrested.  All of the facts of this case have not yet been proven so it is difficult to determine exactly in what manner the victims had their phones searched and their personal images stolen and forwarded to others.

Johns Hopkins Hospital recently paid $190 million dollars to settle a matter where a doctor had taken thousands of nude photos of patients without their consent.  In that case, there was no evidence the photos had been shared.  However, in this case, court documents allege that images had been shared.  Therefore, the Johns Hopkins Hospital $190 million dollar settlement may be a benchmark for any potential settlement. 

In general, many organizations need to do a better job of training their employees about digital usage and legal matters.  Here, since those who are accused of wrong doing are police officers they should have known that their alleged behavior may violate multiple state and/or federal laws.  

Copyright 2014 by Shear Law, LLC.  All rights reserved. 

Service of Process Via Social Media and Authentication

In 2002, a U.S. court approved service of process via email. In 2008, an Australian court first allowed for service of process via Facebook and then earlier this week a UK High Court Judge approved service of process via Facebook. Therefore, service of process via electronic means is gaining acceptance around the world and it may only be a matter of time before a U.S. court will allow for service of process via social media.

Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”

Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.

Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.