Mediaboss Marketing

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an implied license allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, thats within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; thats why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People dont implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily cant do that without a warrant.

Now consider this question: How does Jardines apply when properties have no trespassing signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardiness implied license test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isnt clear on which understanding of the implied license is correct.

In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of no trespassing signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Heres how the court summarizes the question, with paragraph breaks added and some citations omitted:

Given the Supreme Courts recognition that the knocker on the front door is treated as an invitation or license to attempt an entry, Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):

[T]he license granted to enter property to knock on a persons door is not unlimited. Rather, it extends unless and until the homeowner provides express orders to the contrary. In determining the scope of the implied license, and therefore whether a police officers approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.

The question before us in this case is whether posting No Trespassing signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendants signs turn the investigators entry onto his property into an intrusion subject to constitutional protections?

The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendants driveway was categorically barred?

The court concludes that under this test, a no trespassing sign ordinarily doesnt have much Fourth Amendment significance:

In short, a homeowner who posts a No Trespassing sign is simply making explicit what the law already recognizes: that persons entering onto another persons land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several No Trespassing signs. For this reason, we disagree with the dissent that a No Trespassing sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property. Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a trespass when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

Justice Lee dissented. From the dissent:

Mr. Christensen sufficiently revoked the publics implied license to enter his property by posting multiple No Trespassing and Private Property signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several No Trespassing signs near Mr. Christensens driveway, and she did not go to houses that had No Trespassing signs. . . .

Mr. Christensen did not just post one No Trespassing sign he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensens intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.

I dont have particular views as to which approach is right, but its an interesting question that may be headed up to the U.S. Supreme Court before too long.

I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.

As always, stay tuned.

See original here:
The Fourth Amendment and no trespassing signs - Washington Post

As mentioned in a priorblog post, the U.S. Customs and Border Protection (CBP) can conduct searches of individualsdepartingthe United States, a fact that many are not aware of. In fact, the rule that failure to declare monetary instruments in amounts of or over $10,000 can result in its seizure is applicable to departure and CBP has confiscated funds from individuals who did not make the proper declaration as recently as two months ago after conducting an ad hoc inspection in a departure lounge at Newark Liberty Airport.

Well, what if CBP confiscates an I-Phone from an individual about to depart the United States, at an airport, without a warrant, and the individual is convicted of criminal charges partially based upon information obtained from that I-Phone. That is the question raised inU.S. v. Hamza Kolsuzin the U.S. Court of Appeals for the Fourth Circuit.

We discussed in a priorblog posthow CBP relies on the Border Search Exception cited inCarroll v. United States 267 U.S. 132 (1925)concluding that it is reasonable to conduct such border searches without a warrant given national security interests. In addition, individuals have a lesser expectation of privacy when they seek entry into the United States at a port of entry.

However, the intrusive nature of confiscating a smartphone is quite different, and this issue is addressed with reference to searches in the interior of the United States inRiley v. California, 134 S.Ct. 2473 (2014). The Court indicated that smart phones are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human autonomy. The Court found that given how cell phones contained in many instances the digital sum total of ones papers and effects, police searches would be unreasonable unless a warrant had been obtained.

The Hamza Kolsuz case addresses the question whether an end run around the Fourth Amendment can be made when the confiscation takes place at a border, in this case, while the individual was seeking to depart the United States.

In the interim, CBP continues to conduct searches and under appropriate circumstances, confiscate or detains laptops and smart phones as they deem necessary.

In CBP Directive Number 3340-049 dated August 20, 2009 and reviewed August 2012, U.S. Customs and Border Protection outlines its policy with regard to handling sensitive information.

CBP indicates that it might confront materials that appear to be legal in nature or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. CBP takes the position that such materials may not necessarily be exempt from a Border search, but consultation with a senior officer may be necessary.

It addresses other sensitive information, such as medical records and work-related information carried by journalists, which should be handled in accordance with any applicable federal law and CBP policy.

It also addresses business or commercial information which may be sensitive or governed by the Trade Secrets Act, Privacy Act, and other laws.

At the end of the day, you will have little opportunity to discuss, debate or persuade while an inspection for admission to the United States is conducted, and you therefore may want to take necessary precautions as we described in our recentblog post.

The litigation in the Hamza case may eventually bring some clarity as CBP will be pressed and challenged as to this very sensitive issue.

The Knight First Amendment Institute of Columbia University went to court to enforce a request under the Freedom of Information Act, to provide statistics and policy records with reference to how many electronic devices CBP had been searched or confiscated at the border.

Finding the right balance between privacy rights and the security needs of the nation will continue at our ports of entry to be an elusive goal.

2017 Proskauer Rose LLP.

Visit link:
Immigration Fact and Fiction: What is Left of Fourth Amendment ... - The National Law Review

Ars Technica

Mysterious group posts more alleged NSA hacking tools; Russia link suspected News & Observer One document appeared to show that NSA spyware had been placed on servers in South Korea, Russia, Japan, China, Mexico, Taiwan, Spain, Venezuela and Thailand, among other countries. The dump included details of how the NSA purportedly had ... In slap at Trump, Shadow Brokers release NSA EquationGroup filesArs Technica 'NSA malware' released by Shadow Brokers hacker groupBBC News Shadow Brokers slam Trump, expose additional NSA cyber toolsSC Magazine Forbes -TechCrunch -InfoWorld -Medium all 55 news articles »

Go here to read the rest:
Mysterious group posts more alleged NSA hacking tools; Russia link suspected - News & Observer

U.S. Cyber Command (CYBERCOM) is the U.S. armed forces command charged with offensive and defensive cyber operations. Since 2010, it has coexisted with NSA as two organizations under one director. It is simultaneously embedded within U.S. Strategic Command (STRATCOM), a functional (i.e., non-geographic) command with broader responsibility for detecting and deterring strategic attacks against the United States. Both arrangements are likely coming to an end in the near future.

In a move set up by the 2017 National Defense Authorization Act (NDAA), CYBERCOM will be elevated from a sub-unified command under STRATCOM to a fully independent unified combatant command. The 2017 NDAA also maintains a more hotly contested opportunity for CYBERCOM to be split from the NSA as early as October 2018.

Below is a brief primer on those two impending issues.

The Debate over Splitting CYBERCOM from NSA

Defense Secretary Jim Mattiss deputy principal cyber advisor, Maj. Gen. Burke Ed Wilson, recently said that he is 99 percent sure well elevate [CYBERCOM to a full combatant command] and do it fairly quickly.

Cutting the umbilical cord from NSA may be a longer process, but momentum seems strong within the new administration. In the 2017 NDAA, Congress mandated that CYBERCOM must reach full operational capacity (FOC) before the dual-hat leadership arrangement can be terminated. FOC is achieved when a command has the institutional capability and expertise to independently carry out any mission within its ambit of responsibility. CYBERCOM reached initial operational capabilitya threshold level of capability to accomplish mission objectiveslast October and is on track to reach FOC by the end of fiscal year 2018. Once the Secretary of Defense and the Chairman of the Joint Chiefs of Staff determine that the separation will not pose risks to the military effectiveness of CYBERCOM, the president may decide to initiate the split.

CYBERCOM was created as a sub-unified command within U.S. Strategic Command in 2009, absorbing the Joint Task Force for Global Network Operations and the Joint Functional Component Command for Network Warfare. Its mission has both defensive and offensive components. Per a Department of Defense fact sheet:

USCYBERCOM plans, coordinates, integrates, synchronizes, and conducts activities to: direct the operations and defense of specified Department of Defense information networks and; prepare to, and when directed, conduct full-spectrum military cyberspace operations in order to enable actions in all domains, ensure US/Allied freedom of action in cyberspace and deny the same to our adversaries.

The decision to locate CYBERCOM at the NSA headquarters in Fort Meade was a logical choice at the commands inception. NSA ensured that CYBERCOM had the necessary resources, infrastructure, and expertise with signals intelligence to develop its own capabilities. Though CYBERCOMs mission is distinct from that of NSA, many of the tools needed to conduct cyber operations are virtually the same as those necessary for cyber surveillance and espionage. As former NSA Director General Michael Hayden puts it, in the cyber domain the technical and operational aspects of defense, espionage, and cyberattack are frankly indistinguishable. Moreover, similar skillsets are required for NSA and CYBERCOM activities, and personnel with the appropriate levels of expertise are reportedly in short supply.

Despite significant technological overlap, NSA and CYBERCOM largely operate under different legal authorities. NSAs authority to conduct espionage, including cyber surveillance, comes from Title 50 of the U.S. code, while CYBERCOM would typically take offensive action pursuant to Title 10 authorities. General Hayden explains: NSA does not have the authority to destroy someone elses information, to change someone elses information, to harm someone elses network, or to take control of someone elses computers in order to create physical destruction, as these actions constitute a warmaking Title 10 function. However, NSA personnel may conduct intelligence gathering to support a Title 10 military operation, and existing law does not preclude CYBERCOM from conducting a Title 50 operation. Dual-hatting personnel between the two organizations, as has become common practice, further muddies the unclear line between Title 10 and Title 50 authorizations. Though this close coordination has benefits, there are concerns about mission distortion. A presidential panel convened by President Obama to evaluate the NSA after the Snowden leaks reported a pressing need to clarify the distinction between the combat and intelligence collection missions, and recommended appointing separate heads to remedy this line-blurring problem.

Supporters of the split also point to other potential advantages. The creation of a fully independent command dedicated to cyber operations denotes a level of seriousness and dedication to the development of U.S. cyber capabilities appropriate for an era in which cyber offense and defense are critical to U.S. national security interests. For some in the government, the slow pace at which CYBERCOM has developed effective offensive tools has been a source of frustration, particularly as the military tackles threats like ISIS. Some predict that an independent CYBERCOM would be better positioned to aggressively, and sometimes more openly, pursue its mission, particularly for situations in which military and intelligence goals may be unaligned. For example, it might be of strategic benefit that a Title 10 action be attributable to the United States, whereas for intelligence purposes, avoiding detection for the same action is essential. In addition, a commander dedicated solely to cyber military operations may be able to advocate more effectively for resources and personnel than would be possible in a dual-hatted role, and CYBERCOM has struggled with resource constraints under current joint leadership. The separation could also allow CYBERCOM-dedicated personnel to specialize and develop advanced cyber capabilities. Finally, there is the simple fact that leading either of these organizations alone is a more than fulltime job and it is untenable to expect a single person to accomplish both simultaneously.

Others, however, have argued that the benefits of shared infrastructure and dual-hatting NSA and CYBERCOM employees outweigh any gains from separation. Even assuming CYBERCOM reaches FOC by October 2018, there are questions about the additional resources, financing, and capabilities that would need to come online such that CYBERCOM could be weaned off of its reliance on NSA. Some key players, including Senator John McCain, argue that it would be foolish to separate organizations that must be closely coordinated to ensure success. The NSA has the advantage of over 50 years of experience with signals intelligence, which will continue to be the foundation for seven-year-old CYBERCOMs operations even after the separation. Furthermore, it takes far longer than the typical three-year military billet to develop the expertise needed to conduct cyber operations. In addition, dividing responsibility between two wholly separate cyber-focused entities increases the risk that they will work at cross-purposes.

Steps Towards a Unified, Separate CYBERCOM

Notwithstanding these concerns, separating NSA from CYBERCOM has become more a question of when rather than if. As mentioned above, the 2017 NDAA establishes that CYBERCOM will be elevated to a unified combatant command. Taken together, these changes may increase the risk of disruption to CYBERCOMs mission effectiveness. As such, military leaders can learn from the formation and dismantling of past functional combatant commands as they plan for both elevating and separating CYBERCOM from STRATCOM and NSA.

One such functional unified combatant command is U.S. Special Operations Command (SOCOM), which Congress created in 1987. SOCOM is tasked with synchronizing and carrying out Special Operations (e.g., hostage rescues, counterinsurgency actions) in support of missions in global combatant commands. It was created after Congressional and DoD investigations determined that a clearer organizational focus and chain of commandas well as dedicated fundingwere needed for special operations in low-intensity conflicts.

Frank Cilluffo of George Washington University has recommended that CYBERCOM adopt a collaborative operations style similar to that employed by Joint Strategic Operations Command (JSOC)a subunified division of SOCOM responsible for quick, high-profile strikes like the mission to capture or kill Osama bin-Laden. Like JSOC, CYBERCOM would draw on intelligence assets (i.e., from NSA) to quickly harmonize and implement cyber operations. Ideally, this model of collaborative operations would preserve the important relationship that has developed between NSA and CYBERCOM while allowing each to pursue a distinct mission set.

Even if a collaborative model, similar to JSOC, is adopted, the potential for redundant responsibilitieswhich has led to the downfall of past COCOMswould still loom large. U.S. Strategic Command, for example, has a broad set of capacities, including tailored nuclear, space, cyberspace, global strike, joint electronic warfare, missile defense, and intelligence capabilities. While formal responsibility for cyberspace may be removed, preventing overlap between these two commands will likely be difficult. If not adequately deconflicted, one could imagine CYBERCOM being reintegrated into STRATCOM just as U.S. Space Command was rolled into STRATCOM in 2002 to facilitate integrated command for C4ISR (command, control, communications, computers, intelligence, surveillance, and reconnaissance). Does a C3ISR model make sense for STRATCOM? After all, cyber, just like military space capacities, is fundamental to U.S. command and control.

Expansive mandates, unsupported by commanders of existing COCOMs, have also proved fatal to functional combatant commands. U.S. Strike Command, later U.S Readiness Command, was tasked with providing a reserve of general purpose forces, training reserve forces, developing joint doctrine, and planning for contingency operations. It was then expanded to include planning for operations in the Middle East, sub-Saharan Africa, and Southern Asia. Criticized for becoming a world-wide General Purpose Forces Command, it was disbanded in 1986 to allow for a more narrowly-tailored commandSOCOM. This bears out a central lesson that General Duane Cassidy, the first commander of U.S. Transportation Command (TransCom), derived from TransComs success: it is essential to have (1) buy-in from leadership of the other combatant commands and (2) support from civilian leadership.

Though the debate over CYBERCOMs independence and institutional design will no doubt continue, a complete separation now seems inevitable. While CYBERCOMs shift away from reliance on NSA will be necessarily gradual, General Hayden estimates the transition could be achieved in as little as nine months. This means that a fully independent CYBERCOMwith all its potential benefits and liabilitiescould be just a few years away.

Follow this link:
To Split or Not to Split: The Future of CYBERCOM's relationship with NSA - Lawfare (blog)

The US National Security Agency (NSA) has been spying on Pakistans mobile networks, whistleblowing organisation WikiLeaks has tweeted. Hundreds of NSA cyber weapons variants publicly released including code showing hacking of Pakistan mobile system, @wikileaks tweeted.

According to a report in Express Tribune on Monday, the hacker group Shadow Brokers released a new cache of information detailing how the NSA accessed private and public networks in other countries. A researcher on Twitter who identifies himself as x0rz decrypted the files and uploaded them on Github, a web-based repository and internet hosting service.

The researcher confirmed that the archives include evidence of NSA operators access inside the GSM network of Mobilink one of the Pakistans most popular mobile services provider, the report noted. The hacker group had previously released data suggesting the US agency may have been monitoring hundreds of IP addresses in Pakistan. The encrypted files were being decrypted by security researchers around the world.

Shadow Brokers had initially wanted to auction its data cache in exchange for Bitcoin but as no buyer turned up, they released the data online. This is not the first time that reports have surfaced claiming that the US NSA is snooping on other countries. According to a Daily Mail report in 2014, WikiLeaks disclosed documents that suggested the Bharatiya Janata Party (BJP) was among six political parties from around the world the NSA was authorised to conduct surveillance on for gathering foreign intelligence. The authorisation was given by a secret American court, it said.

The leak was planned months ahead of Prime Minister Narendra Modis visit to the US, the report claimed. Another report in the Washington Post that also came in 2014 said the US has long had broad no-spying arrangements with four countries Britain, Canada, Australia and New Zealand in a group known collectively as the Five Eyes.

But a classified 2010 legal certification approved by the Foreign Intelligence Surveillance Court and included among a set of documents leaked by former NSA contractor Edward Snowden lists 193 countries [including India], that would be of valid interest for US intelligence, the Post said.

Publish date: April 12, 2017 11:45 am| Modified date: April 12, 2017 11:41 am

Tags: Github, Mobile networks, National Security Agency, NSA, Pakistan, Shadow Brokers, spying, Surveillance, United States, WikiLeaks

Read the original:
WikiLeaks reveals that NSA has been spying on Pakistan's mobile networks - Tech2 (blog)