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Congress should sunset any extension of the intelligence communitys dubious electronic surveillance authority to intercept, store, and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until December 31, 2017.

Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statutes effectiveness is doubtful; the governments compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.

All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond December 31, 2017.

Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.

The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the United States Court of Appeals decision in Microsoft Corp. v. United States.

The governments technical capabilities for intercepting, storing, and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to insure against a horse-and-buggy statute governing in an age of interstate highways.

Another sunset for 702 is also prudent because of the governments professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of United States citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.

The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the preemption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant. NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sakean illicit government objective.

The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017 FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised very serious constitutional questions. These chronic violations also argue against any permanent extension of section 702.

Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage, or other crime as a predicate for invading their communications privacy.

The United States Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Courts gives imprimatur. Caution is the order of the day when skating close to the Constitutions edge.

In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.

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Sunset any Extension of Electronic Surveillance Authority - HuffPost

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal WisBar All things considered, Blackman's consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment, Abrahamson wrote.

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal - WisBar

YAKIMA, Wash. A local case questioning whether Yakima County jail authorities are violating due process by enforcing federal immigration holds could affect jails nationwide, a Yakima attorney said Wednesday.

U.S. District Judge Salvador Mendoza granted a temporary restraining order Tuesday requiring the county jail to remove an immigration hold placed on an inmate so he could be released on bail pending trial for a local assault charge.

Mendozas order resulted from a lawsuit filed by the inmates attorney arguing that the hold placed on local inmates by federal Immigration and Custom Enforcement officers was enforced by the county jail without judicial review, a violation of civil rights under the Fourth Amendment. ICE officers typically fill out a document, called an administrative warrant, naming an inmate suspected of violating immigration laws and give it to jail officials who in turn place the local inmate on a federal hold.

The issue here is (ICE) is giving the form to Yakima County and Yakima County is doing something that is not under its authority, said Bernardo Rafael Cruz, an attorney with Columbia Legal Services in Yakima. Cruz is representing the inmate. This could have wider affects, and it could have wider policy implications across the country.

Calls to ICE spokeswoman Rose Riley in Seattle seeking comment were not immediately returned Thursday.

The temporary restraining order against the county is part of an ongoing lawsuit filed by Columbia Legal Services and the Immigrants Rights Project on behalf of Antonio Sanchez-Ochoa. The suit seeks to stop the county jail from complying with immigration holds without judicial review and award Sanchez-Ochoa damages to be determined at trial.

Although a local judge granted Sanchez-Ochoa a $50,000 bail option on the local charge, a bail bondsman wouldnt work with him because of an immigration hold placed on him at the jail, Cruz said.

Sanchez-Ochoa has been incarcerated since May 4.

Yakima County Prosecuting Attorney Joe Brusic said he and other prosecuting attorneys from across the state in an April meeting with U.S. district attorneys requested that ICE officers get warrants signed by a federal judge when seeking to place holds on local inmates. The prosecuting attorneys were told it wasnt necessary, Brusic said.

Thats what we would truly like, but ICE, theyre not going to do that anytime soon, he said.

This is starting to create a national ripple in the type of paperwork needed to present to local authorities for holds, Brusic added.

However, U.S. District attorneys also said they wouldnt protect counties honoring the administrative warrants from liability stemming from a potential lawsuit.

Theyre not going to help us out, at least thats what they said in April, and thats not right, he said. We were summarily frustrated with that response.

Even so, the county continued to work with ICE due to a good working relationship with the federal agency in the past and because the jail has federal contracts which generate income for the jail to house prisoners with immigration holds, Brusic said.

Its complicated on many levels.

Under the federal contract, the jail receives about $84 per inmate held for ICE.

On average, ICE brings about 120 federal inmates suspected of violating immigration laws to the jail each month. In addition, ICE officers review the jails bookings daily and place holds on other inmates who have been jailed locally for a variety of offenses. As many as 15 of those local inmates can be held each month at ICE officers requests.

Inmates already in federal custody when brought to the jail are not included in the lawsuit because federal law gives ICE officers authority to arrest and detain someone suspected of being in violation of immigration laws, said attorney Matt Adams with the Northwest Immigrant Rights Project in Seattle.

Typically, prosecution of local inmates at the jail must be completed before ICE takes custody of them, jail officials have said.

But placing a federal hold on those inmates while they are in local custody boils down to local authorities doing the work of federal authorities, Adams said.

What our case is about is clarifying that the Fourth Amendment prevents Yakima County from arresting people at the request of federal immigration authorities, he said.

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Local immigration case could have national impact - Yakima Herald-Republic

Another day, another video showing law-enforcement officers abusing their powers against a black manbut this time the case ends with the city of Aurora, Colo., agreeing to pay $110,000 to settle a claim brought by the American Civil Liberties Union of Colorado on behalf of Darsean Kelley, who was unlawfully stopped, detained and tased by Aurora police just as he informed them, I know my rights.

The ACLU of Colorado announced the settlement on its website, noting that the city of Aurora says the settlement is not an admission of guilt.

Through constructive, respectful dialogue, the ACLU of Colorado and the city of Aurora, through the city attorneys office, were able to work together to resolve this case promptly and without expensive and time-consuming litigation, ACLU of Colorado Legal Director Mark Silverstein said. The ACLU commends the city of Aurora for its willingness to come to the table in good faith to find a resolution that is fair to Mr. Kelley and beneficial for taxpayers of the city.

The settlement stems from a Feb. 19, 2016, incident in which Aurora police officers were responding to a call about a potential crime at an apartment complex. Although they had no description of a suspect and no reason to believe that Kelley, or his cousin who was with him, was involved in any criminal activity, they stopped them anyway as they were walking down a nearby street.

According to the ACLU, the officers refused to tell Kelley why he was being stopped. After he asked them several times if he was being detained, the officers told him that he was, and yelled orders at him as he asked, For what?

Kelley complied with the officers orders anyway and held his hands up with his fingers outstretched to show that he was not a threat. At one point he pointed to his chest and said, I know my rights. It was then that one of the officers shot him in the back with a Taser, causing him to lose all muscular control in his body, fall backward and strike his head on the pavement.

Kelley was arrested and charged with disorderly conduct, spending three days in jail before he could be bailed out. He was successfully defended in the criminal case by ACLU lawyers, who filed a motion arguing that the unlawful street detention violated his Fourth Amendment rights.

The incident was captured by police bodycam video and shared by the ACLU on social media in September 2016. Kelley can be seen clearly complying with officers and not posing a threat before he is tased.

Even with that evidence, the Aurora Police Department Internal Affairs Bureau, as well as the citys Independent Review Board, determined that the use of force against Kelley was reasonable, appropriate and within policy. In addition, the IRB found that the incident did not warrant further investigation.

That the Aurora Police Department reviewed this incident and gave it a departmental stamp of approval shows the department is incapable of policing itself, ACLU Staff Attorney Rebecca T. Wallace, who led the settlement negotiation for ACLU of Colorado, said. If what happened to Darsean Kelley is business as usual for the Aurora Police Departmentas their own review board foundthen Aurora taxpayers can expect to continue to foot the bill while black and brown men suffer at the hands of police.

Read more at the ACLU of Colorado.

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Unlawful Detention and Tasing Claim on Behalf of Black Man Ends With $110000 Settlement - The Root

Police militarization and excessive force have become increasingly pressing issues in American society. Fortunately, the Denver-based U.S. Court of Appeals for the Tenth Circuit Justice Neil Gorsuchs old stomping ground held yesterday that innocent victims of improper police procedures during dynamic drug raids have some protections. Even if the court didnt fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward.

In 2011, Robert Harte and his two children visited a garden store to buy tomatoes for his 13-year old sons school project. Little did they know that Sergeant James Wingo of the Missouri State Highway Patrol was watching the store and recording the license plate numbers of the visitors, assuming that they were there to buy marijuana despite little evidence for that assumption. The Johnson County Sheriffs Office then examined the Hartes trash on two occasions, finding about an ounce of saturated plant material. Because they evidently couldnt tell the difference between tea and marijuana, they field-tested the substance, which tested positive for marijuana.

In an inspiring display, the police launched a military-style raid the Hartes home. At 7:30 in the morning, they pounded on the Hartes door, forced Mr. Harte to the ground when he answered, and searched their home for three hours. As it became increasingly clear that there was no marijuana in the house, the police started to search for any kind of criminal activity, a far greater sweep than what a warrant to search for marijuana and drug paraphernalia allows. Heaping further indignities on the family, the officers also left canine units in the house longer than necessary to give them extra training. The police apparently wanted to turn lemons into lemonade by retroactively turning an early-morning drug raid that didnt find any drugs, lest we forget into a training exercise.

After the district court granted summary judgment for the police, the Hartes appealed and Cato filed an amicus brief. We arguedthat the police violated an important Fourth Amendment rule that goes back to the roots of English common law by failing to knock and announce their presence in anything but a literal sense. They also exceeded the scope of their warrant to look for any criminal activity instead of just drugs. We urged the Tenth Circuit to reverse the district court, clarify the Fourth Amendment standard for assessing police raids, and remand for further proceedings.

The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that what the deputies learned early on in the search dissipated any probable cause to continue searching.

Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure and also let them continue with their state-law claims soHarte v. Board of Commissionersrepresents a positive development in the jurisprudence surrounding dynamic police raids.

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When Police Misread Tea Leaves They Violate the Fourth Amendment - Cato Institute (blog)