Source: Illinois Bar Journal

Lawsuit challenges warrantless cellphone tracking

A Chicago lawyer is using the city and other defendants for gathering cellphone information in a way that violates individual privacy and should require a warrant.

Stingrays aren’t found solely at the sea. “Stingray” is also the nickname for cell site simulators. These devices mimic cell towers, collecting data from phones. Collected data can include text messages, browser history, phone call content, and an individual’s location.

Illinois attorney and National Lawyers Guild volunteer legal observer Jerry Boyle has filled a lawsuit against the City of Chicago and other defendants arguing that using cell site simulators violates individual privacy and should require a warrant. Boyle’s lawsuit claims that his cellphone information was intercepted at a Black Lives Matter protest on Martin Luther King Jr. Day in 2015. The lawsuit seeks class certification for others whose cellphone information was also intercepted by the Chicago Police Department (CPD).

According to the January 12, 2017 complaint, found at http://bit.ly/2ikKctI, cell site simulators can also track a phone users cumulative movements, revealing location data over time. Boyle alleges that CPD engaged in secretive and widespread use of cell site simulators.

The compliant further alleges that CPD refused to disclose information about its use of site simulators until forced to do so via Freedom of Information Act lawsuits. That information revealed that CPD spent over a half million dollars on site simulator technology between 2005 and 2010. The complaint also alleges that CPD maintains no written policies, practices or standards governing the use of site simulators. These site simulators are allegedly used without any warrants, or if so, only via board “trap and trace” orders, which are not based on individualized probable cause.

Chicago attorney Melinda Power says that Boyle’s lawsuit is, to her knowledge, the first of its kind filed in Illinois. While the case raises questions of law that are untested in Illinois, she believes that the use of site simulators at public demonstrations is a “clear violation of the First Amendment and the Fourth Amendment.”

For their part, law enforcement officials say stingrays are important crime-fighting tools. “It’s how we find killers,” FBI Director James Comey said back in 2015. It’s how we find kidnappers. It’s how we find drug dealers. “It’s how we find missing children. It’s how we find pedophiles.” See http://usat.ly/1LtSLdI.

But groups around the country have sued both state and federal law enforcement agencies recently seeking information related to the use of site simulators and seeking damages for their use. In May 2016, the New York Civil Liberties Union sued the New York Police Department alleging that its practice of using site simulators violated individual privacy rights. (Read a New York Post article about the case at http://nyp.st/1RbOsjS).

Targeting Protestors

The Electronic Information Privacy Center sued the FBI to compel the release of documents related to federal law enforcement’s use of the devices (for more, see http://bit.ly/1GgYEET). Power, who is an attorney at West Town Community Law Office, says the use of site simulator should be the basis for invalidating an arrest or dismissing charges brought based on information obtained from site simulators to identify the organizers of protests. That information can later be used as a pretext to target leadership from those groups, she says.

Boyle’s compliant alleges that CPD uses the data obtained from cell site simulators as the “moving force behind the violations of class members’ constitutional rights.” First, it alleges that by failing to have policies and procedures in place for the use of site simulators, CPD directly encourages the violation of the First and Fourth Amendment rights of the class members.

Second it alleges that this conduct is part of a “decade-long history of targeting individuals and organizations for illegal surveillance because of their political activities.” Further, the complaint specifically alleges that CPD began tracking demonstrators in August 2016, in the wake of protests aimed at the protests born out of the shooting of Michael Brown in Ferguson, MO.

Power says that site simulators are more likely to be used at rallies where CPD expects or thinks violence will happen. For example, she says that while she doubts that the January 21, 2017 Women’s March was targeted, she believes that Black Lives Matter protests and rallies opposing President Trump’s policies are more likely candidates for such surveillance.

According to the ACLU, 22 states and the District of Columbia use the tracking technology (http://bit.ly/1OxKmWG). This creates a large potential for abuse. As the ACLU notes, local and state law enforcement have tried to conceal their use of the devices.

An August 2016 complaint filed with the Federal Communications Commission alleges that the use of Stingray devices un-lawfully interferes with cellular communications, particularly within communities of people of color (see http://bit.ly/2cvCVFn). The ACLU’s stance is that the use of site simulators should be curbed via strict oversight and transparency rules. 

Source: ILlinois Bar Journal

Residential property owners can be liable for injuries sustained on icy sidewalks if ice resulted from negligent maintenance.

MURPHY-HYLTON VS. LIBERMAN MANGEMENT SERVICES INC.

The Snow and Ice Removal Act (745 ILCS 75/0.01 et seq.) does not immunize property owners from claims of liability for injuries allegedly caused by icy sidewalks due to an otherwise negligent failure to maintain the premises or premise defects. However, the Act does extend immunity to residential property owners from liability for injuries allegedly caused by icy sidewalks due to negligent snow and ice removal efforts.

Plaintiff slipped on an icy sidewalk outsider her condominium and sustained personal injuries. She brought a negligence suit against the condominium association and the condominium management company alleging that the negligent maintenance of the premises created an unnatural accumulation of ice, causing her to fall.

Plaintiff alleged that defendants were negligent by failing to properly direct the drainage of water and melted snow, failing to repair defective sidewalks, and failing to repair downspouts to prevent an unnatural accumulation of ice on the sidewalk. Additionally, plaintiff alleged that defendants failed to comply with various local building construction and maintenance codes.

Plaintiff's complaint did not contain any allegations of negligence relating to snow or ice removal efforts. Because plaintiff's theory of negligence pertained to construction and maintenance of the premises - and not snow removal efforts - the Illinois Supreme Court held the Snow and Ice Removal Act does not provide an affirmative defense. Landowners owe a duty of reasonable care to prevent unnatural accumulations of ice and snow on their premises where they have actual or constructive knowledge of the dangerous condition. 

Source: ILlinois Bar Journal

A corporation is not liable if a member hotel reveals a guest identity and room number without the guest's consent. 

Andrews v. Marriott International, Inc., 2016 IL App (1st) 122731

The Illinois Appellate Court held that a corporation was not liable where it did not undertake a privacy standard to refrain from identifying hotel guests or their room numbers to others without the guest's consent.

In 2008, the plaintiff, Erin Andrews, stayed at the Blackwell Inn., it disclosed the details of Andrews' hotel arrangements to Barrett without the knowledge or consent of Andrews. Blackwell Inn then assigned Barrett to the room next to Andrews. Barrett retrofitted the peephole on Andrews' hotel room door, recorded Andrews in her hotel room, and posted the videos on the internet. 

Defendant Preferred is a corporation that provides marketing and online reservation services to Blackwell Inn. Plaintiff alleged that Preferred is liable for Blackwell's staff disclosing her hotel stay and room number; first under a theory of joint venture relationship liability, or second, because Preferred voluntarily assumed a duty of care to Plaintiff. The Court did not find Preferred liable under either theory.

First, Plaintiff argued Preferred's control over the operations and policies of Blackwell and the sharing of reservation fees established joint venture liability. However, the court found that Preferred and Blackwell were separate entities contracting for a particular service that yielded individual profits, and that none of the elements of joint venture liability were satisfied. 

Second, Plaintiff argued that Preferred voluntarily undertook to protect her privacy by requiring that Blackwell comply with its "Standards of Excellence." While the "Standards of Excellence" included two standards involving guest privacy, voluntary undertakings are to be strictly construed, and the standards did not prohibit disclosure of a guest's identity and room number, or placing a guest next to another upon request. The court found that there is no evidence to conclude that Preferred voluntarily undertook a duty to protect Plaintiff's privacy. 

Source: ILlinois Bar Journal

The Unified Code of Corrections was amended to ensure mental illness will be weighed in favor of withholding or minimizing a prison sentence. Mental illness will be taken into account if the defendant suffers from a serious mental illness but does not establish the defense of insanity. If the mental illness substantially affected the defendant’s ability to understands the nature of his or her acts or to conform conduct to the law, it will be weighed favorably in sentencing.