Richard Goldberg Speaks with Legaltech News About Geofencing & Law Enforcement

New York, N.Y. (December 13, 2019) – Data Privacy & Cybersecurity Partner Richard W. Goldberg spoke with Legaltech news last month about the legal questions surrounding the use of geofencing by law enforcement agencies for their article “Courts Are Getting Geofenced In by Location Data Quandaries.” Geofencing is the location data provided by cell phones and other connected devices, which is often used by authorities in investigations. However, this tactic raises certain Fourth Amendment issues that have not yet been addressed by the courts.

“There’s no solution to this yet,” said Mr. Goldberg, who previously worked as a cybercrime prosecutor for the U.S. Department of Justice.

As the article notes, the procedure for obtaining a warrant for geofencing data varies from jurisdiction to jurisdiction. On top of that, companies are not always eager to comply with such a warrant, considering the potential backlash from consumers in this current environment of heightened sensitivity to privacy matters.

Mr. Goldberg also discussed the Supreme Court precedent set in the 1979 case Smith v. Maryland, which held that obtaining a pen register – which records all numbers dialed on a phone line – without a warrant did not constitute an unlawful search per the Fourth Amendment because the “numerical information” was voluntarily conveyed by the phone company, which controlled the information. As Mr. Goldberg explained, this case established that information passed on to institutions by customers for business purposes is obtainable by the government without a warrant.

Mr. Goldberg noted that if the Supreme Court were to change this holding, “they would change the way all government investigations are done.  It would essentially make it really difficult to gather bank records. Really simple things—the records that businesses keep.”

Furthermore, since the speed of technological development often outpaces that of the law, Mr. Goldberg added that “[the Supreme Court] is very reluctant to set up rules that say, ‘OK, the government can do this, it can’t do that.’ Because they know technology will make that opinion look stupid.”

Mr. Goldberg is a partner in Lewis Brisbois’ Philadelphia and New York offices, and a vice chair of its Data Privacy & Cybersecurity Practice. While working as a cybercrime prosecutor, he also served as Chief of many different sections of the U.S. Attorney’s Office in Philadelphia, including Economic Crimes, and as Chief of Trials, supervising the trials of all criminal cases charged by one of the country’s largest federal prosecution offices. 

Read the full Legaltech news article here (subscription may be required).

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