By Matthew Scott
First of two parts.
Two recent sweeping orders from an Illinois judge in the special investigation of former “Empire” actor Jussie Smollett could threaten the digital rights of all Americans, but few privacy advocates would discuss them with Digital Privacy News.
Cook County Circuit Court Judge Michael Toomin in December ordered Google to turn over a year’s worth of digital data and documents from the email accounts of Smollett and his manager, Frank Gatson.
The directives were part of special prosecutor Dan Webb’s probe into a faked hate crime Smollett allegedly orchestrated in Chicago last year to boost his career.
The charges were dropped in March 2019. Smollett, 37, has maintained his innocence.
Toomin’s warrants were exhaustive. They included deleted messages and drafts in the two’s accounts, documents in their Google Drive cloud accounts, and their Google Voice texts.
Other Google data ordered turned over included Smollett’s and Gatson’s call logs, contacts, images, photographs, search and web-browsing histories, and GPS location data.
Toomin mandated Google to provide the data from November 2018 to November 2019.
No Challenge by Lawyers
Legal experts told Digital Privacy News that Toomin’s orders were so vast because Webb must prove whether Smollett committed fraud in the purported racist and anti-gay attack on himself on Jan. 29, 2019.
Still, the decrees raised eyebrows among some privacy advocates.
“It used to be that a lot of these warrants wouldn’t come with any time limit,” said Mark Rumold, senior staff attorney for the Electronic Frontier Foundation (EFF) in San Francisco.
“[One] year doesn’t strike me as so unreasonable, but … the quantity of different types of accounts: That would give me pause.”
But other groups declined to discuss the judge’s actions.
“The IAPP will have to pass on this topic,” a spokesperson for the International Association of Privacy Professionals, said in an email.
Emails were not returned by these organizations: American Civil Liberties Union, Electronic Privacy Information Center and Center for Democracy and Technology.
The International Association of Chiefs of Police did not respond — and telephone calls and emails to Smollett’s attorneys also were not returned.
The lawyers, Tina Glandian and Mark Geragos, did not challenge Toomin’s orders.
In criminal cases, Google requires “a court order to compel disclosure of non-content records” or “a search warrant to compel disclosure of content of communications,” according to the policy.
Six New Charges
Originally charged with 16 counts of felony disorderly conduct after the purported assault, Smollett’s charges were dropped that March.
Gatson initially reported the attack to Chicago police in 911 calls, describing how he found Smollett after the incident allegedly beaten and with a noose around his neck.
Last August, Toomin appointed Webb, a former U.S. attorney, to review the allegations, based on “irregularities” that led to the initial charges being dropped.
Webb was granted the expansive warrants on Dec. 6 — and then filed six new, but very similar, counts of disorderly conduct against Smollett in February.
The Fourth Amendment gives law enforcement access to digital information if it can establish probable cause to believe that evidence of a crime can be found in the information being sought.
Companies handling digital information are under no legal obligation to inform users when their personal data is handed over to authorities under court order, though most companies do.
In some cases, a judicial gag order could bar them from making disclosures.
More Specifics Needed
Experts told Digital Privacy News that some of the reluctance to discuss the Smollett-Gatson warrants rests in their effectiveness in combating sophisticated crimes.
Criminals now have access to a broad range of digital platforms to commit and hide illicit behavior — and law enforcement has lobbied successfully for greater access to such information.
But authorities should be more thorough in the information they seek in their investigations, EFF’s Rumold said.
That way, the courts can “ensure that there is a close relationship between the person and the device and the crime that they are accused of committing, and the evidence that’s going to be obtained through a search,” he said.
Wednesday: Dangers of Unsent Emails
Matthew Scott is an editor and writer in New York.
Illustration: DPN/Cheyanne Salmon.
- www. chicago.suntimes.com/news/2020/2/23/21150009/jussie-smollett-chicagocourthatecrime-hoax
- www. usatoday.com/story/life/people/2019/06/05/empire-star-jussie-smollett-911-calls-released/1361536001/