In previous posts, we have discussed the role of social media and how what you post, share, or send via Snapchat and other social media platforms can significantly impact your criminal trial. However, in the digital era, there are so many more digital platforms landing people in trouble and making criminal defense a little more difficult. The waters get a little murky when we discuss the legalities of digital use in criminal prosecution, simply because many of the platforms are new and the laws haven’t always been clear. In today’s post, we want to take some time to discuss some of the ways your digital fingerprint may impact you and how it may lead to negative legal action.
Before we jump right in, there are a few things we want to touch upon related to digital communication and technology. It should be noted that words that are spoken are open to interpretation and may be legally dismissed as hearsay or a misunderstanding. However, written and typed communication shared over digital means are listed in black and white, able to be read by the masses, and more difficult to dispute. It should also be noted that everything that is generated or shared on digital technology is time-stamped and everything that uses cell towers and internet are also location specified. And, anything that you put on the internet is accessible forever, whether it is later “deleted” or not. For more information, read our previous post here.
Search and Seizure of Tech Devices
The Fourth Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This does apply to the search, seizure, and use of digital technology including phones, computers, and digital cameras. What does this mean for you? It means that as long as your devices are on your person, in your home, or in your personal belongings, law enforcement officers will have to have a search warrant that specifically states there is probable cause and they have the authority to search and seize specific technology. However, it is important to understand that public devices, including surveillance cameras and computers owned by public or private entities that are used by the public, are subject to the owners of the devices and they are free to share the information or wait for a search warrant. Additionally, any digital information can be shared by a receiver without a search warrant. For more information about your rights and digital technology, review these online resources:
Warrantless Searches of Electronic Devices at U.S. Borders: Securing The Nation or Violating Digital Liberty?
Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations
Telephone Technology Versus the Fourth Amendment
Revenge Porn May Result In Criminal Conviction
There is no law that prohibits two consenting adults from recording their sexual encounters, photographing themselves or each other in provocative or sexual positions, or sharing these things with others. However, all parties in the images and videos must have consented to the recording or photographing and must consent to where and how it is shared or distributed. Revenge porn has become a legal hot topic and the subject of many legal reviews and law updates. Sharing revenge porn — posting a private image for the intention of harassment — is a criminal offense in the state of Colorado. Sharing media, including photos, videos, or any other medium that shows the private parts or intimate acts (with or without nudity), without the consent of everyone shown, may be considered revenge porn and subject to prosecution. To learn more, read these online legal resources:
Concerning Measure to Clarify the Scope of Revenge Porn Criminal Offenses
Revenge Porn Laws in Colorado
Sexting
Sexting is a perfectly legal act and a very common practice. Sexting includes sexually explicit messages, images, and videos sent via text, email, or instant messenger platforms. When both adults consent, you are free to sext to your heart’s content. However, it all becomes very murky when consent, age, and sharing are involved. First things first, sending unwarranted genital pictures are illegal. If one party requests an explicit image, it is okay. If you ask if you can send an explicit picture and the response is “yes,” then it is okay. However, there has to be established consent prior to sending a sexually explicit picture, or it may be considered sexual harassment, a criminal offense.
Ages of the parties involved in the sexting follow similar legal guidelines as physical sexual contact. Recently, Colorado updated sexting laws to accommodate the increase in teen sexting. However, the laws are very clear. Two consenting adults over the age of 18 can exchange explicit content freely. However, adults who send or receive explicit messages to or from a minor can face serious criminal charges that include, but are not limited to, possessing child pornography and sexual exploitation of a child. 2017 updated laws make more room for minors to engage in sexting with other minors. However, it is important to understand that as an adult, if any of the teen sexting content is shared or saved on your device, you may still face criminal charges. It is also important to know that whether it is an adult or a teen, if any of the explicit content is shared with anyone outside the conversation, this may be considered revenge porn, a violation of consent, and subject to other criminal charges.
Key takeaways:
- Obtain explicit consent before sexting.
- Sext with people within legal age groups.
- Do not share sexts or explicit content.
For more information about Colorado sext laws, review these online resources.
Teen Sexting in Colorado
Guidance on new Legislation Regarding “Sexting”
GPS Tracking and Video Surveillance
Cellphone tracking and video surveillance have become more prevalent and useful in criminal prosecution. As technology improves, digital devices become more reliable. Video surveillance is a prosecutor’s gift because oftentimes, it does not require a warrant and video owners have the choice to surrender video footage to law enforcement. While video surveillance is not authorized on private property, unless it is established by the property owner, more and more homes and businesses are arming their property with closed-circuit video surveillance equipment. We discussed the use of footage in a previous post, which you can read here, but the key takeaway is that no movement ever really goes undetected.
GPS tracking occurs all the time. The app on your smartphones and even the cell towers they use provide valuable location detection for law enforcement. Again, to have your phone, phone records, or information made visible to law enforcement, they must have the proper search warrants. However, if you made calls or sent messages to someone else, that location feedback may be used. Additionally, if someone else’s digital technology is with you, that information is subject to their permission of use or search warrants against them. If you are attempting to track someone else using a GPS tracking device or their smartphone location, you may find yourself facing criminal stalking and harassment charges without ever violating a restraining order.
For more information about the use of GPS tracking or video surveillance may result in criminal charges or damage your criminal defense, read these online resources.
Rules For Cellphone Tracking by Police in Colorado Unclear
At the Law Offices of Murphy and Price, LLP in Colorado Springs, we are dedicated to defending the legal rights of our clients and building a solid criminal defense case. The digital era does blur the legal line a little more, but our legal team is experienced and knowledgeable in Colorado laws and courts and can help you. Before you talk to anyone else, especially law enforcement, give us a call to schedule your complimentary consultation and let us begin building your defense.
