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With increasing frequency, law enforcement is using unconstitutional digital dragnet searches to attempt to identify unknown suspects in criminal cases. In Commonwealth v. Dunkins, currently pending before the Pennsylvania Supreme Court, EFF and the ACLU are challenging a new type of dragnet: law enforcements use of WiFi data to retrospectively track individuals precise physical location.

Phones, computers, and tablets connect to WiFi networksand in turn, the Internetthrough a physical access point. Since a single access point can only service a limited number of devices within a certain range, WiFi networks that have many users and cover larger geographic areas have multiple stationary access points. When a device owner moves through a WiFi network with multiple access points, their device seamlessly switches to the nearest available point. This means that an access point can serve as a proxy for a device owners physical location. As an access point records a unique identifier for each device that connects to it, along with the time the device connected, access point logs can reveal a devices precise location over time.

In Dunkins, police were investigating a robbery that occurred in the middle of the night in a dorm at Moravian College in eastern Pennsylvania. To identify a suspect, police obtained logs of every device that connected to the 80-90 access points in the dormabout one access point for every other dorm roomaround the time of the robbery. From there, police identified devices belonging to several dozen students. They then narrowed their list to include only non-residents. That produced a list of three devices: two appeared to belong to women and one appeared to belong to a man who later turned out to be Dunkins. Since police believed the suspect was a man, they focused their investigation on that device. They then obtained records of Dunkins phone for five hours on the night of the robbery, showing each WiFi access point on campus that his phone connected to during that time. Dunkins was ultimately charged with the crime.

We argued in our brief that searches like this violate the Fourth Amendment. The WiFi log data can reveal sensitive location information, so it is essentially identical to the cell phone location records that the Supreme Court ruled in Carpenter require a warrant. Just like cell phone records, the WiFi logs offered the police the ability to retrospectively track a persons movement, including inside constitutionally protected spaces like students dorm rooms. And just as the Carpenter court recognized that cell phones are essential for participation in modern life, accessing a college WiFi network is equally indispensable to college life.

Additionally, we argued that even if police had obtained a warrant, such a warrant would be invalid. The Fourth Amendment requires law enforcement to obtain a warrant based on probable cause before searching a particular target. But in this case, police only knew that a crime occurredthey did not have a suspect or even a target device identifier. Assessing virtually the same situation in the context of a geofence warrant, two federal judges recently ruled that the governments application to obtain location records from a certain place during a specific time period failed to satisfy the Fourth Amendments particularity and probable cause requirements.

The polices tactics in this case illustrate exactly why indiscriminate searches are a threat to a free society. In acquiring and analyzing the records from everyone in the dorm, the police not only violated the defendants rights but they also wrongly learned the location of every student who was in the dormitory in the middle of the night. In particular, police determined that two women wholly unconnected to the robbery were not in their own dorm rooms on the night of the crime. Thats exactly the type of dragnet surveillance that the Fourth Amendment defends against.

The outcome of this case could have far-reaching consequences. In Pennsylvania and across the nation, public WiFi networks are everywhere. And for poor people and people of color, free public WiFi is often a crucial lifeline. Those communities should not be at a greater risk of surveillance than people who have the means to set up their own private networks. We hope the court will realize whats at stake here and rule that these types of warrantless searches are illegal.

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EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF

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China's National People's Congress has approved theFourth Amendment to Chinese Patent Law on October 17, 2020. Theamended law will be effective from June 1, 2021. We also expectthat the Implementing Regulations of the Chinese Patent Law and thePatent Examination Guidelines will also be amended accordingly,before the effective date of the amended law. These regulations andrules will provide more explanation and details regarding theAmendment.

Although the approved version of the Fourth Amendment issomewhat different from the previous versions, we do not think itis necessary to discuss these differences. Rather, we will discusskeys changes in the approved version as compared to the currentlaw. We haveparaphrased and highlighted inblue the key changes below,followed by ourcomments in black.

Article 2.4 Partial designs will be allowed.

A much welcomed change. It will provide flexibility to allapplicants and much convenience to applicants from countries wherepartial designs are allowed.

Article 15.2 For service-inventions, the state encouragesemployers to implement ownership incentives and adopt means such asequities, options, and profit sharing, etc., to allow the inventorsto reasonably share the benefits of innovation.

Although the provision is only an "encouragement",rather than a requirement, we do not think that it is necessary orproper. We think that the employers should be left freely, withinthe boundary of law, to decide on how to reward and remunerate theinventors. We look forward to more details.

Article 20.1 In exercising the application or patent right, oneshould follow the principle of honesty and credibility, but shallnot abuse the right to harm public interest or other'slegitimate rights.

We think that the stated principle is appropriate, but lookforward to further interpretation and details.

20.2 Abusing patent right, excluding or restricting competition,if constituting monopolistic conduct, shall be treated according toAnti-Monopoly Law of China.

This provision corresponds with the Anti-Monopoly Law.

Article 24.1 (1) Newly added exception to novelty-defeatingdisclosures: Disclosures made within 6 months of application dateand for public interest purposes during national emergency orextraordinary situation.

We think that a typical example of the exception would be forsomeone to publish a research paper regarding treatment or vaccinefor the corona virus before filing the relevant patent application,but look forward to further interpretation and details.

Article 29 Applicant may claim priority to its own first-filedChinese design patent application within six (6) months of thefirst filing and for the same subject matter.

Applicant can already do so in invention and utility modelpatent applications.

Article 42.1 Design patent term will be extended to fifteen (15)years, from the current ten (10) years.

It is generally believed that this provision will help clear theway for China to join the Hague Agreement, which other majorcountries have all joined.

42.2 For patents granted after four (4) years since applicationdate and three (3) years since request for substantive examination,applicant may request for patent term extension on the basis ofunreasonable delays during prosecution of the patent, except fordelays caused by the applicant.

We look forward to further details.

42.3 In order to compensate for time used for new drugevaluation and approval, the term of a relevant patent for anapproved new drug in China may be extended by up to five (5) yearsupon request by patentee. However, after the new drug entersmarket, the total remaining term of the relevant patent may notexceed fourteen (14) years.

A much welcomed provision for the pharmaceutical industry. Welook forward to further details.

Articles 50 52 Provisions regarding Open PatentLicenses, setting out mechanisms and procedures whereby patentowners can publish, through the CNIPA, their intentions to licensetheir patents to any interested party. Annuities will be reduced orwaived during the license period.

The provisions will help to further commercialize Chinesepatents. We look forward to more details.

Article 66.2 In an infringement action involving a utility modelor design patent before court or administrative agency, all partiescan submit the Patentability Assessment Report on their own.Currently only the patentee and interested party can do so uponrequest by court.

The report will be more important when enforcing utility modelor design patents.

Article 70.1 CNIPA, at the request of patentee or interestedparty, may handle patent infringement disputes that havesignificant impact nationwide.

We think this is an inappropriate enlargement of the CNIPA'sauthority and jurisdiction, but look forward to more details.

70.2 Patent administrative authority of a local government, atthe request of patentee or interested party to handle patentinfringement disputes, may combine cases involving the same patentwithin its jurisdiction. The authority may also request a higherlevel local government authority to handle cases involving the samepatent across different jurisdictions.

This is further streamlining of the administrativeauthority's handling of patent disputes.

Article 71.1 Patentee's loss and infringer's gain aretreated equally as basis for determining damage amounts.

This provides more option/freedom to the patentee in provingdamage amounts.

71.1 In case of willful infringing act, if the circumstances aresevere, the court may set the amount of damages to be one (1) tofive (5) times of the determined amount.

While this may provide more deterrence, it could also beexcessive.

71.2 Statutory damage amount will be under RMB 5 million (aboutUS$715,000). Currently the amount is under RMB 1 million.

A much welcomed change as damage amounts in most cases are stilldetermined based on the statutory amount.

71.4 In order to determine the amount of damages, if theplaintiff has done everything within its ability and the relevantaccount books and materials are mainly under the infringer'scontrol, the court may order the infringer to provide such accountbooks and materials. If the infringer does not provide or providefalse account books or materials, the court may determine thedamage amount by considering the plaintiff's request andevidence.

This will make it easier for the patentee to prove the damageamount.

Article 74.1 Statute of limitation for filing infringementlawsuit is three (3) years (currently two years) from when patenteeknew or should have known the infringement action and theinfringer.

This is in line with China's civil procedure law.

Article 76.1 During administrative review and approval for adrug, the party seeking drug approval and the patentee of arelevant patent may initiate legal proceeding with the court todetermine whether the drug falls within the protection scope of thepatent. The drug regulatory agency, within a specified period oftime, may decide whether to suspend the drug review and approvalprocess based on an effective judgment by the court.

This generally sets up a mechanism for settling patent disputesin drug regulatory review and approval process. But there are manydetails that will need to be clarified.

76.2 The parties may also request the CNIPA to make anadministrative decision regarding the patent dispute.

This is an enlargement of the CNIPA's jurisdiction. We lookforward to more details.

76.3 The Drug Regulatory Authority and the CNIPA will formulatespecific linkage methods regarding drug marketing approval andpatent dispute resolution during the approval period.

We look forward to more details.

As can be seen, the Fourth Amendment introduced a number ofmajor changes to the Chinese Patent Law. At the same time, theimplementation of these changes will largely depend oninterpretation and further details regarding the provisions. Welook forward to the corresponding Implementing Regulations by theState Council and the Patent Examination Guidelines by the CNIPA inthe coming months. We will keep you informed.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

See the article here:
Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China...

Nearly <https://www.pewinternet.org/fact-sheet/mobile/> every American<https://www.pewinternet.org/fact-sheet/mobile/> owns a cell phone that can track their every movement and store sensitive information. But this convenience doesnt mean Michiganders give up their expectation of privacy. On Nov. 3, voters have a chance to ensure that our right to privacy in digital matters is respected by law enforcement when they vote on Proposal 2.

This ballot proposal would require law enforcement to acquire a search warrant before accessing a persons electronic data and communications. This may seem like a commonsense protection of privacy. But, currently, law enforcement is able to access Michiganders data essentially at will.

This issue has been a big deal in Michigan for the better part of a decade. In 2011, as a result of suspected criminal activity in Detroit, the <https://www.aclu.org/legal-document/united-states-v-carpenter-supreme-court-decision> FBI acquired<https://www.aclu.org/legal-document/united-states-v-carpenter-supreme-court-decision> several months worth of Timothy Carpenters cellphone location records without a warrant. These records revealed over 13,000 locations Carpenter had visited, yet the FBI didnt even have to ask a judge to get that information.

Fortunately, the American Civil Liberties Union took on Carpenters case, which went all the way to the United States Supreme Court. In 2018, the court held that Fourth Amendment protections apply to cellphone location records and that law enforcement must obtain a search warrant before accessing this sensitive information.

But heres the problem: The Supreme Courts decision only applied to location data. It didnt apply to the rest of the data that people access every day financial documents, photos, calendar appointments, and more. Law enforcement can still access this information without a warrant. In fact, law enforcement could conceivably access enough information to put together a profile of virtually every citizen in the state. Location data may be protected, but so much other data that paints an even better picture of a person is still open to access and abuse.

One thing is certain: Americans dont like the status quo. Approximately <https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-about-privacy-security-and-surveillance/> 88% of Americans<https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-about-privacy-security-and-surveillance/> say it is important that there isnt anyone watching or listening to them without their permission. Unfortunately, the law hasnt caught up.

Other states have taken steps to solve this problem. It started in Missouri in 2014. After the passage of a bill in the state legislature, a remarkable 75%<https://time.com/3087608/missouri-electronic-privacy-amendment/> of voters added much broader data protections to the state constitution through a referendum.

Last year, Utah followed suit. Lawmakers introduced a bill stating that a government entity may not obtain, use, copy, or disclose any third-party data without first obtaining a warrant unless the owner has consented or a judicially recognized exception to a warrant exists. After unanimous support from the Utah Legislature, the bill became law.

Now Michigan has a chance to set the standard. In June 2019, Michigan state Sen. Jim Runestad introduced <http://www.legislature.mi.gov/(S(zoatowoaywtmbnhskxax21bk))/mileg.aspx?page=GetObject&objectname=2019-SJR-G> Senate Resolution G<http://www.legislature.mi.gov/(S(zoatowoaywtmbnhskxax21bk))/mileg.aspx?page=GetObject&objectname=2019-SJR-G>, which is similar to the protection enacted in Missouri. After a year in the Michigan Legislature, it passed and has become <https://ballotpedia.org/Michigan_Proposal_2,_Search_Warrant_for_Electronic_Data_Amendment_(2020)> Michigan Proposal 2: Search Warrant for Electronic Data Amendment<https://ballotpedia.org/Michigan_Proposal_2,_Search_Warrant_for_Electronic_Data_Amendment_(2020)>.

Justice Samuel Alito once wrote, It would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.

Rather than punt this issue to the slow-moving courts, its imperative that state legislatures continue discussing, as well as passing these updated protections for the electronic communications and data of various individuals.

Jarrett Skorup is director of marketing and communications at the Mackinac Center for Public Policy, a free-market research and educational institute in Midland, MI. Connor Boyack is president of Libertas Institute, a free-market think tank in Utah.

Continued here:
Column: Michigan can bring privacy into the 21st century - The Oakland Press

For all the scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett and her writings on abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in 34 such cases and signed on to other opinions in her three years on the 7th Circuit Court of Appeals, a relatively thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and robust regard for the Fourth Amendments restrictions on police searches. She is occasionally willing to strip officers of their qualified immunity from lawsuits. But she can also adopt extremely narrow interpretations language in the Constitution, statutes, and court precedents to uphold questionable convictions and heavy sentences.

In the area of criminal justice and related civil suits, she has issued only five dissents. Four of them were to the detriment of inmates and defendants, and one argued that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimonya fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after 26 years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of the Chicago-based 7th Circuit. Most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and precedents. Some appeals that reached the 7th Circuit seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience.

She has ruled several times against qualified immunity, which precludes civil lawsuits against police officers and other government employees unless their actions would be clearly understood by a reasonable official to violate established constitutional or legal norms. The doctrine, which was invented by the Supreme Court, has created a Catch-22: If the use of force, even deadly force in certain situations, has not been deemed a violation in the past, then it cannot be argued that a reasonable officer would regard it as such now. Hence, police officers as individuals can rarely be sued successfully, even as large judgements and settlements have led to payouts by local governments to victims families in New York City, Chicago, and elsewhere.

Barrett has not addressed the concept itself but has applied it for and against officers depending on the cases specific issues. On the one hand, she dissented from a majority opinion in McCottrell v. White, allowing two inmates to sue guards who wounded them by firing shotguns inside a prison cafeteria. On the other hand, in Rainsberger v. Benner, she cast aside qualified immunity, for an Indianapolis homicide detective who lied in an affidavit to get an arrest warrant; the charges were dropped, and the defendant sued. She also joined opinions rejecting immunity for a prison guard in Wisconsin (Howard v. Koeller)who retaliated against a jailhouse lawyer by falsely labeling him a snitch and guards in an Illinois jail (Broadfield v. McGrath) who were sued for using excessive force against a suicidal prisoner. She ordered a new trial in another prisoners unsuccessful lawsuit (Walker v. Price) against guards he claimed had beaten him because the court had denied his repeated requests to help him find a lawyer. She wrote sympathetically of the inmates unsuccessful struggle to represent himself before the jury by video link, given his IQ of 76 and a grade-school level of comprehension.

She has both upheld and overturned tough sentences, usually with close readings of the law and the federal sentencing guidelines. But she also used fussy grammatical nitpicking about the present-perfect tense to dissent from United States v. Uriarte, a 12-3 opinion of the entire 7th Circuit. The case applied the First Step Act, a new reduced-sentencing law, to a convict awaiting a revised sentence after his first was overturned.

In light of calls by Democrats to recuse herself from any election case that might reach the Supreme Court, its worth noting that Barrett ordered a reduced sentence because Judge Colin S. Bruce, a former federal prosecutor, had failed to recuse himself after having chummy, private conversations about other cases with prosecutors from his old office. (United States v. Atwood)

She also rejected a prison sentence that was lengthened based on an unproven assumptionthat a man convicted of stealing guns had sold them to people he supposedly knew were prohibited from having firearms. Nothing in the record suggests that he knew the buyers legal status, she wrote for a unanimous three-judge panel. The court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. (United States v. Moody)

A man with both drugs and guns in his house was unduly given an enhanced sentence, she found in United States v. Briggs, for possessing a firearm in connection with another felony offense, as the federal sentencing guidelines provide. But because the district court made essentially no factual findings connecting the guns and the drug possession, she wrote for a unanimous court, the case was sent back down for resentencing.

Barretts several opinions and comments on the constitutional right to be secure against government searches offer the possibility that she might be willing to rescue the Fourth Amendment from near oblivion. Largely because of the war on drugs, the proliferation of warrantless searches of vehicles and frisks of pedestrians led Federal District Judge Paul L. Friedman to tell me a decade ago: I dont think that theres much left of the Fourth Amendment in criminal law. Since 9/11, digital surveillance rationalized by anti-terrorism policies has swept the country as well.

The amendment requires a warrant from a judge, backed by probable cause that evidence of a specific crime will be found in a particular place. But the courts have devised so many exceptions in allowing warrantless searches in so many situations that the right of the people to be secure in their persons, houses, papers, and effects, in the amendments words, has been severely undermined.

At her confirmation hearing, Barrett gave this significant response to Republican Senator Ben Sasses question about how the Fourth Amendment would deal with cell phones and other technology that didnt exist when the Bill of Rights was ratified in 1791:

No, the Fourth Amendment, so the Constitution, one reason why its the longest-lasting written constitution in the world is because its written at a level of generality thats specific enough to protect rights, but general enough to be lasting so that when youre talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it, as the Court did in Carpenter versus the United States, to cell phones [requiring a warrant to get phone location records]. So, the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesnt catalog the instances in which an unreasonable search or seizure could take place. So, you take that principle, and then you apply it to modern technology like cell phones. Or what if technological advances enable someone with Superman x-ray vision to simply see in your house, so theres no need to knock on the door and go in? Well, I think that could still be analyzed under the Fourth Amendment.

Although Barrett calls herself an originalist akin to her mentor, the late Antonin Scalia, for whom she clerked, her answer did not sound very different from what a liberal judge supporting a living constitution would offer. The proof always lies in how the principle is applied to the specifics of a case. But her respect for the Constitutions level of generality, enough to be lasting, suggests that she might not join the most conservative justices who dissented in Carpenter.

Writing for unanimous panels, she overturned two convictions that relied on unconstitutionally seized evidence. In one, United States v. Terry, she ruled that a woman in a bathrobe who answered the door to federal agents did not have authority to consent to a search of a male suspects apartment. The agents had arrested the man, did not have a warrant, and did not ask the woman who she was until well into the search. (She was the mother of his son but did not live there.) They found four cell phones and a drug-dealing ledger. Barrett wrote, A bathrobe alone does not clothe someone with apparent authority over a residence, even at 10:00 in the morning.

In another, United States v. Watson, she threw out a judgment based on a guilty plea because the police, acting on a 911 call from a 14-year-old boy on a borrowed phone, lacked reasonable suspicion to block a car matching his description of boys playing with guns. A passenger with a felony conviction was found to have a gun. Barrett called the 911 call not sufficiently reliable and concluded that his sighting of guns did not describe a likely emergency or crimehe reported gun possession, which is lawful.

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, soin the criminal justice arena, at leastshe has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views. But once shes on the Supreme Court and freer to chart her course, then what?

View original post here:
The Criminal Justice of Amy Coney Barrett - Washington Monthly

Judge Jane Magnus-Stinson dismissed IMPD from the lawsuit, citing that city agencies are protected from certain laws

INDIANAPOLIS A judge has dismissed IMPD from a wrongful death lawsuit in the shooting death of Dreasjon Reed.

The lawsuit alleges four IMPD officers, the city of Indianapolis and IMPD used "excessive force" in violating Reed's Fourth Amendment rights.

The four officers listed are IMPD Chief Randal Taylor, IMPD Deputy Chief Kendale Adams, IMPD Officer De'Joure Marquise Mercer, and IMPD Officer Steven Scott.

IMPD claims Reed was running from police, shot at an officer, and the officer returned fire, killing Reed. The incident was caught on a live video on Facebook that Reed was filming at the time.

Reed's mother, Demetree Wynn, filed the federal lawsuit in June.

On Tuesday, Oct. 27, Judge Jane Magnus-Stinson dismissed IMPD from the lawsuit, citing that city agencies are protected from certain laws.

"Defendants argue that the IMPD is not a suable entity, and therefore all claims against it must be dismissed. [Filing No. 16 at 3.] Specifically, Defendants assert that although municipal corporations have the capacity to sue and be sued under Indiana law, their individual departments and agencies do not, and courts have consistently recognized that the IMPD is not suable except in the context of lawsuits for access to public records, which is not the case here."

Here are the claims that have been dismissed from the lawsuit:

Following the court's decision, here is what remains in the wrongful death lawsuit:

Continued here:
IMPD dismissed from Dreasjon Reed lawsuit - WTHR