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The Fourth Amendment has protected our right to privacy since its ratification in 1791. Thetextof the amendment reads, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, but how well do these protections hold up in the digital age?

Today, most of us are typing emails on our laptops, not scribbling a letter with a quill and inkwell. Therefore, its important to ensure our sensitive, digital communications are well-protected. Clearly, the Fourth Amendment transcends time and technological change, but some sinister players are pretending otherwise.

Currently, under theElectronic Communications Privacy Act(ECPA), the United States federal government may seize any citizens private email communicationswithout a warrant, provided they are over 180 days old. By law, these older emails are not considered privy to a reasonable expectation of privacy under the ECPAsSection 2703(a).

Even worse, the ECPA was enacted in 1986, years before email usage was even widespread. However, the 180-day rule doesnt just apply to emailsevery Americans texts, GroupMe chats, and Facebook messages are fair game too.

Its time to modernize the Fourth Amendment to protect our online communications, and bipartisanThe Email Privacy Act, re-introduced by Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO), does just that. Namely, the Email Privacy Act would require all government agencies to acquire a warrant before accessing any online communications over 180 days oldjust like any other private documents.

In the era of cloud technology, communications could be stored on enormous server, conceivably forever. More and more, our sensitive financial, relational, and personal details exist online, making their security absolutely essential.

The ECPA is problematic in other areas as well. In December of 2013, federal law enforcement sought asearch warrantfor Microsoft customers email account as a component of a criminal narcotics investigation. Microsoft complied up until a point, but there was one big problemthe actual emails were stored overseas.

Microsoft refused to turn the emails over, and was held in civil contempt by the district court. Three years later, however, the Second Circuit Court of Appeals ruled against the federal government, expressing that companies cannot be compelled to release customer emails stored outside the United States.

We conclude that 2703 of the Stored Communications Act does not authorize courts to issue and enforce against USbased service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers, the courtruled.

TheInternational Communications Privacy Act (ICPA) is one potential solution to this issue, creating, a legal framework that clarifies the ability of law enforcement to obtain electronic communication of U.S. citizens, no matter where the person or the communications are located.

Additionally, the ICPA would allow law enforcement to obtain communications from foreign nationals, in consistency with international law. Sponsored by Senators Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV), the bipartisan legislation would remedy this complex problem.

The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking amuch-needed balance in todays data-driven economy, Senator Hatchstated. Clearly, Americans can no longer be complacent about their privacy protections. In a digital age of prying eyes, the consequences of privacy violations can be costly, and long-lasting.

On June 23rd, the Department of Justiceapplied to take the Microsoft case to the Supreme Court, but Congress shouldnt wait for the court to take action. Passing the ICPA and other meaningful reform is too important to wait, when innocent Americans are being caught in the crossfire.

One way or another, its time to give the Fourth Amendment a sorely needed update.

See the original post here:
The Fourth Amendment's Digital Update - The Daily Caller

The Fourth Amendment was established in a time when privacy expectations could be articulated through a simple maxim that every mans home is his castle. In the 21st century, however, our most private information is often guarded not by walls or with a key, but by the companies Microsoft, Verizon, and the like that provide us with access to the data cloud.

In a perfect world, the technologies of today would be met with the same principles that were laid out in the Fourth Amendment by our founders. Unfortunately, that is easier said than done. Technology has added lots of complications, and we are left trying to figure out what a reasonable search is in the age of the data cloud.

Much of the doctrine of the Fourth Amendment is based on definitions that are ill-equipped for dealing with challenges in the era of cloud computing. For instance, do emails, location information, and other data and documents stored in the cloud fall within the Fourth Amendments protection of The right of the people to be secure in their persons, houses, papers, and effects?

Moreover, lack of notice to the person whose property is being searched has become a big problem in the digital era. Traditional searches of one's home or car are, as a practical matter, difficult to keep secret from the propertys owner. In contrast, absent legal protections, it is easy for the government to search electronic data that is held by a third party without the owner of the data ever finding out about it, assuming the government has the cooperation of the third party.

That is just one of several ways in which the third-party doctrine, which holds that people who voluntarily convey information to a third-party such as a bank or a telephone company have no reasonable expectation of privacy in the information conveyed, results in a gaping hole in Fourth Amendment protections in this new age. When applied to the data cloud, this relatively narrow third-party exception granted to law enforcement becomes a broad license for the government to monitor virtually all the data we transmit in our day-to-day lives.

One would have to virtually opt out of our high-tech society to evade this license. That should not be a required trade-off for enjoying the protections of the Fourth Amendment, especially when the government has lawful alternatives for achieving its law enforcement needs.

Then again, if an entire class of technology needs to be exempt from a legal doctrine, there may be a problem with the doctrine itself. At the end of the day, it may be that the third-party doctrine has become irreconcilable with the Fourth Amendment and needs to be discarded. However, it is highly unlikely that the Supreme Court will go that far anytime soon.

The ECPA Modernization Act is a laudable effort to strengthen the warrant requirements for third-party data collection and guard the Constitutional right to due process when digital property is being searched. With the modernization act pending in the Senate andUnited States v. Carpenterpending in the Supreme Court, there is new hope that our institutions will succeed in applying the founders Fourth Amendment principles to the brave new high-tech world.

The views expressed by contributors are their own and are not the views of The Hill.

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Congress must act to protect data privacy before courts make surveillance even easier - The Hill (blog)

Mayor Rahm Emanuel's office said in a statement that the Trump administration's "latest unlawful misguided action undermines public safety and violates" the Constitution. He said the city is challenging the administration "to ensure that their misguided policies do not threaten the safety of our residents."

The legal action comes amid Trump administration threats to cut off funding for so-called sanctuary cities, including Chicago. The city, which emphasizes that Chicago and its Welcoming City ordinance are in compliance with the law, wants the court to render the federal stipulations unlawful.

"Chicago will not be blackmailed into changing our values, and we are and will remain a welcoming city," said Emanuel. "The federal government should be working with cities to provide necessary resources to improve public safety, not concocting new schemes to reduce our crime fighting resources."

The suit revolves around new conditions set for an important funding program: the FY2017 Edward Byrne Memorial Justice Assistance Grant, or JAG, which provided federal funding to support local law enforcement efforts, according to the statement.

Applications for the grants in fiscal year 2017 are due on September 5. The program is named for Edward Byrne, a New York City police officer who was killed in 1988. He had been protecting a Guyanese immigrant who reported illegal activity to police.

Chicago argues the new conditions placed on the grant program "effectively federalize local detention facilities and violate the Fourth Amendment."

The conditions include:

-- "Compliance with a federal statute that bars restrictions on federal-local sharing of immigration status information";

-- "Unlimited access to local police stations and law enforcement facilities by US Department of Homeland Security personnel to interrogate arrestees"; and,

-- "The requirement that cities provide DHS with at least a 48 hour notice prior to an arrestee's release, which would require detaining residents longer than is permissible under the Fourth Amendment of the United States Constitution."

The Constitution's Fourth Amendment protects against "unreasonable searches and seizures."

Chicago Corporation Counsel Ed Siskel said the attorney general's office doesn't have "the authority to add these requirements to a grant program created by Congress and cannot commandeer local law enforcement to carry out federal immigration law functions."

Chicago's Welcoming City ordinance "prioritizes effective local law enforcement and crime prevention over federal civil immigration issues."

"This ordinance promotes public safety by ensuring that no city resident, regardless of their status, is afraid to cooperate with law enforcement, report criminal activity to the police, serve as a witness in court, or seek help as a victim of crime," the news release said.

Police Superintendent Eddie Johnson said federal funding and agents have greatly helped Chicago fight crime.

"The federal government has been an effective partner in the crime fight, as funding and additional federal agents have greatly helped us to take guns off the streets and make our communities safer," said Johnson.

"Removing those resources, regardless of the reason, makes CPD's mission to protect all residents in Chicago that much more difficult."

The threats could result in the loss of billions of dollars in federal grants that pay for a range of programs for crime and domestic violence victims, drug treatment, missing and exploited children, forensic labs, services for disabled people, and boys' and girls' clubs.

In Chicago, $3.6 billion in federal funds are at stake, possibly jeopardizing money to pay for everything from feeding low-income pregnant women to repairing roads and bridges, according to a recent analysis by the Better Government Association, a nonpartisan state watchdog group.

In May, the city launched a campaign in response to President Donald Trump's threats to cut off funding for sanctuary cities. "One Chicago" was recently established in response to the growing needs of the city's refugee and immigrant populations.

The campaign slogan reads: "Three million residents, three million stories, one Chicago."

Excerpt from:
Chicago to sue over 'misguided' sanctuary city warning - CNN

Posted Fri, August 4th, 2017 1:39 pm by Orin Kerr

Orin Kerr is the Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, dont trigger the Fourth Amendment. Theres just no Fourth Amendment right to prevent people from talking about what they saw you do.

If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses. Customers use their services and hire the companies to place calls for them. The companies generate records of what they did for their customers. If the police find out a phone was used in the commission of a crime, they can go to the phone company and get its records about how the phone was used. The phone company can be forced to tell the government what it did for its users. Because theres no Fourth Amendment right to prevent people from telling the police about what they saw you do, getting those records does not trigger the customers Fourth Amendment rights.

The challenge for Timothy Carpenters lawyers is to get the Supreme Court to carve out an exception to the eyewitness rule. They need to persuade the court that sometimes the law shouldnt let people talk about what they saw you do without a warrant. The strategy will be to say that the eyewitness rule shouldnt apply because Carpenter had a reasonable expectation of privacy in his location. Because he had a reasonable expectation of privacy, theyll say, the government should need a warrant to find out what the phone company knows about him.

But this framing is based on a conceptual error. Properly understood, this case has nothing to do with reasonable expectations of privacy. To see why, we need to understand the origins of the reasonable-expectation-of-privacy test.

In 1967, when Katz v. United States was decided, two kinds of cases dominated Fourth Amendment law defining what is a search. The first kind of case identified the spaces that merited Fourth Amendment protection. Homes received protection, but open fields didnt. Katz was one of these cases, because it asked whether public phone booths were protected, like homes, or unprotected, like open fields.

The second kind of case considered when disclosure from inside a protected space eliminated privacy. The Supreme Court decided a long string of those cases in the decade before Katz. And it consistently adopted a simple rule: A person who knowingly exposed private information from a private space to outside observation waived Fourth Amendment protection. Hoffa v. United States, decided the year before Katz, is a helpful example. The Supreme Court held that James Hoffa had no Fourth Amendment rights in what he told his friend Edward Partin even though the conversation occurred inside the protected space of Hoffas hotel room.

This background is necessary because it explains Justice John Marshall Harlans two-part Katz test that the Supreme Court later adopted. Harlan explained the test as his understanding of the rule that has emerged from prior decisions, so he was simply trying to summarize what the cases had held. And Harlans summary nicely (if briefly) encapsulated the two lines of cases. First, a space had to be protected, which was the case if society was willing to recognize an expectation of privacy as reasonable there. Second, the person had to exhibit an actual expectation of privacy, an intention to keep the protected space to himself, by not exposing the space to the plain view of outsiders.

In other words, the Katz two-part test just restated the two requirements of then-existing Fourth Amendment doctrine. To establish Fourth Amendment protection, a person needed to have a place that society would recognize as justifying privacy and had to take steps to shield that space from outside observation.

Why does this history matter for Carpenter? It matters because this case, like all eyewitness cases, involves the second aspect of Fourth Amendment protection: the requirement that a person must shield his information from observation to get Fourth Amendment protection. Even assuming a cellphone users location should count as a protected space, the user has revealed his location to the phone company. Whether Carpenter had a reasonable expectation of privacy should be irrelevant. Carpenter shouldnt win because he didnt shield his location from his phone provider. Carpenters relationship with the phone company is like Hoffas relationship with Partin. Carpenter cant both share his information with the phone company and demand a warrant before the phone company gives that information to the government.

This point is hard to see because the Supreme Court veered off-course in the 1970s and 1980s with cases involving what it has called the third party doctrine. Those cases are normatively correct. But theyre in the wrong doctrinal box. As I detailed in a recent article, the court mistakenly moved the content of the subjective-expectation-of-privacy test over to the reasonable-expectation-of-privacy test and relabeled it the third-party doctrine. Students of the Fourth Amendment have been confused ever since. Isnt it sometimes reasonable, they ask, to expect privacy in information that a person knowingly disclosed? But thats not the right question. The right question is, should you have a right to stop others from telling the government about what they saw you do?

This understanding explains the maddening difficulty Carpenters side has articulating the limits of its argument. The Fourth Amendment calls for clear rules. The government needs to know what is a search and what isnt. But Carpenters side always struggles to explain when the Fourth Amendment should offer protection against government access to business records. If cell-site records are protected, how about credit-card records? Telephone records? Bank records? Should the amount of time covered by the governments request matter, and if so, how? Advocates for Fourth Amendment protection in cases like Carpenter generally decline to say where the lines should be.

The reason for this reluctance, I think, is that there is no obvious line to draw for when you should have a right to stop others from telling the government what they know about you. Carving out an exception to the eyewitness rule creates a puzzle: There are no pre-existing principles that explain which eyewitnesses can be forced to talk to the government and which ones cant. Legislatures can just draw arbitrary lines. But courts have no traditional tools to use to decide when a warrant is needed to make an eyewitness speak.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Orin Kerr, Symposium: Carpenter and the eyewitness rule, SCOTUSblog (Aug. 4, 2017, 1:39 PM), http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/

Here is the original post:
Symposium: Carpenter and the eyewitness rule - SCOTUSblog (blog)

Alan Butler is senior counsel for the Electronic Privacy Information Center, which filed amici briefs in support of petitioner David Riley in Riley v. California and in support of respondent Antoine Jones in United States v. Jones.

The Supreme Courts Fourth Amendment opinions, especially those involving new surveillance technologies, are well stocked with metaphors and similes. Lower courts are faced with the challenge of applying abstract contours of constitutional law to techniques unimaginable when previous cases were decided. Usually courts reach for similes first this new technique is like the old technique considered in that famous case several decades ago in hopes of maintaining consistency. But, more recently, the Supreme Court has relied on new metaphors to explain how to adapt old doctrine to new facts. These doctrinal course corrections are necessary where the routine application of old rules to new facts produces absurd results. We will likely see a similar correction in Carpenter v. United States.

Multiple appellate courts, including the lower court in this case, have held that cellphone location records are not protected under the Fourth Amendment because they are similar to the logs of dialed numbers that were at issue in Smith v. Maryland. The Supreme Court granted certiorari in Carpenter, despite the lack of a circuit split, to address this important Fourth Amendment question. Now the court has an opportunity to set the record straight, and should avoid the conceptual pitfalls that have bedeviled lower courts over the last decade. The court should build upon its unanimous judgments in Jones and Riley to establish strong constitutional protection for location data.

The facts in Carpenter are similar to other recent location-data cases. Law-enforcement investigators obtained several months of the defendant Timothy Carpenters cellphone location records without a warrant. These records were obtained from Carpenters cellphone providers, and included a historical log showing which cellphone towers the target phones were connected to when they made or received calls during a six-month period. Unlike some other cellphone-tracking cases, this case does not involve real time location tracking or the use of GPS data.

The Supreme Court has made a point in its recent decisions in Jones and Riley to reject the wooden application of decades-old Fourth Amendment precedents to modern problems. In Riley, the court declined to apply the traditional search incident to arrest exception to permit the warrantless search of a cellphone in the defendants possession at the time of arrest. In a unanimous decision, the court dismissed the notion that a cellphone was materially indistinguishable from a cigarette pack or a wallet (That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.). Instead, the court found that the search of a cellphone is even more revealing than the search of a home.

In Jones, the Supreme Court considered whether the attachment and use of a GPS device to track the location of the defendants car was a search under the Fourth Amendment. The court had previously held in a pair of cases in the 1980s that the use of radio beepers to track the movement of a car on public roads over a month-long period was not a search. Some lower courts had found that a GPS tracker was like a beeper and that use of the device therefore would not trigger the Fourth Amendment. But the court unanimously rejected that conclusion, albeit under two distinct rationales. Four justices joined Justice Antonin Scalias majority opinion finding that the attachment of a GPS device was a physical trespass, akin to a constables concealing himself in the targets coach. Three justices joined Justice Samuel Alitos concurring opinion, which found that the tracking violated a reasonable expectation of privacy. Alito was skeptical of the usefulness of Scalias metaphor, because it would have required either a gigantic coach, a tiny constable, or both, but nevertheless agreed that prolonged location tracking triggered the Fourth Amendment.

In both Jones and Riley, the Supreme Court re-evaluated long held assumptions in light of new technological developments. The result in both cases was the unanimous conclusion that digital tracking and surveillance techniques trigger close Fourth Amendment scrutiny because they are more intrusive than their physical analogs. The collection of cellphone location data at issue in Carpenter v. United States is another example of changing technology that has enabled a level of intrusiveness that was impossible in an analog world. If officers can warrantlessly track every phone, then they can essentially deputize millions of tiny constables, hiding in our pockets and constantly recording our movements. Under the courts rationale in Jones, such extensive tracking is unreasonable, but lower courts have continued to apply analog cases to this new digital problem.

Lower courts have struggled for more than a decade to determine what Fourth Amendment and statutory protections apply to cellphone location data. In particular, courts have grappled with intersecting provisions in the Electronic Communications Privacy Act (the Stored Communications Act and Pen Register Statute) and with technological developments that have continually increased the precision of location-tracking methods. Three general trends have emerged from these cases. First, some courts have drawn a distinction between historical and prospective location data, finding that warrants are only required for prospective (or real time) tracking. Second, courts have focused on the precision of the location-tracking method in order to measure the degree of intrusiveness or the privacy interest at stake. Finally, courts have relied on the holding in Smith and the content/non-content distinction to find that location data are not protected by the Fourth Amendment.

None of the concepts used by lower courts real time vs. historical, precise vs. imprecise, and content vs. non-content provides a principled basis for crafting a Fourth Amendment rule. The Supreme Court would be wise to avoid these distinctions because they all present major pitfalls.

First, while some courts have assumed that real-time location tracking is inherently more intrusive than collecting historical data, the opposite is actually true. Historical data is more frequently used in criminal cases because it is inherently more revealing historical tracking can reveal patterns, associations, behaviors and other personal details that cannot be so easily derived from records in real time. It is the duration and extent of the tracking, not its temporal relationship to an investigation, that matters. Alito reached a similar conclusion in his concurring opinion in Jones, noting that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

Second, attempts to distinguish cases based on the precision of the location-tracking methods at issue have been inconsistent and arbitrary. The government has argued that collection of cellphone-tower data should not trigger Fourth Amendment scrutiny because the data do not reveal the users precise location. Many courts have assumed that cell-tower data are necessarily less precise than GPS data (the type of data at issue in Jones). But that assumption is wrong in many cases (tower data can be more precise than GPS data in urban areas) and is inherently short-sighted. The precision of location-tracking methods has only increased over time and will continue to do so as the density of cellphone towers increases and data analysis methods evolve. Indeed, federal law requires all cellphone providers to develop the capability to locate 911 callers precisely in an emergency.

Third, the traditional distinction between content and non-content (or metadata) does not map well onto location data because it does not provide a useful analytical framework for evaluating the privacy interests at stake. The Supreme Court protected the contents of the phone call in Katz v. United States even though those contents had been disclosed to another person (the recipient of the call). The fact that cellphone location records are held by a third party does not mean they are not entitled to protection. Indeed, Justice Potter Stewart recognized in his dissenting opinion in Smith that even the mere numbers dialed can reveal private facts, and thus are not without content. But the data generated by modern communications bear no resemblance to the minimal billing data generated by the analog telephone system in 1979.

Lower courts refusal to protect cellphone location data is especially troubling when, as here, Congress has already established higher privacy standards for location data in some contexts. When Congress enacted the Communications Assistance for Law Enforcement Act in 1994 at the behest of the FBI, it prohibited law enforcement from obtaining location data with a pen register (the same type of device at issue in Smith). But rather than view this statutory protection as an indication that individuals have a reasonable expectation of privacy in their location information, courts have held that cellphone-tower data are similar to the call records at issue in Smith and thus are not protected.

A better way to resolve the issue in this case is to re-evaluate Smith in light of the changes in our communications systems since 1979. Justice Sonia Sotomayor alluded to the need to do so in her concurring opinion in Jones, positing that the rule adopted in Smith is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Even Alitos concurring opinion in Jones implicitly recognized that long-term tracking was fundamentally different from the short-term, analog tracking methods in the 1980s beeper cases. If the Supreme Court rejects the conclusion that all personal data held by modern service providers are unprotected, and that the world has fundamentally changed since Smith was decided, then lower courts and Congress can finally begin to adopt appropriate digital-privacy rules.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Alan Butler, Symposium: Millions of tiny constables Time to set the record straight on the Fourth Amendment and location-data privacy, SCOTUSblog (Aug. 3, 2017, 10:50 AM), http://www.scotusblog.com/2017/08/symposium-millions-tiny-constables-time-set-record-straight-fourth-amendment-location-data-privacy/

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Symposium: Millions of tiny constables Time to set the record ... - SCOTUSblog (blog)