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The federal government thinks it should be able to use one warrant to hack into an untold number of computers located anywhere in the world. But EFF and others continue to make the case that the Fourth Amendment prohibits this type of blanket warrant. And courts are starting to listen.

Last week, EFF pressed its case against these broad and unconstitutional warrants in arguments before a federal court of appeals in Boston, Massachusetts. As we spelled out in a brief filed earlier this year, these warrants fail to satisfy the Fourth Amendments basic safeguards.

The case, U.S. v. Levin, is one of hundreds of prosecutions resulting from the FBIs 2015 seizure and operation of a child pornography site Playpen. While running the site, the FBI used malwareor a Network Investigative Technique (NIT), as they euphemistically call itto infect computers used to visit the site and then identify those visitors. Based on a single warrant, the FBI ended up hacking into nearly 9,000 computers, located in at least 26 different states, and over 100 countries around the world.

But thats unconstitutional. One warrant cannot allow law enforcement to hack into thousands of computers wherever they are in the world. As law enforcement defended these blanket hacking warrants and pushed for federal rule changes to allow themand as Congress stood by and idly let this rule change go into effectweve been fighting in court to make sure that the Fourth Amendments protections dont disappear as law enforcement begins to rely on hacking more and more.

And there are signs that courts are beginning to recognize the threats to privacy these warrants pose. Earlier this year, a federal magistrate judge in Minnesota found [PDF] that the warrant the FBI relied on in the Playpen casethe same warrant we were arguing against in Levinviolated the Fourth Amendment.

In the February report, Magistrate Judge Franklin Noel described how the governments NIT fails the Fourth Amendments requirement that warrants describe a particular place to be searched, agreeing with arguments weve made to courts in other Playpen prosecutions. The warrant in this case fails to satisfy that requirement because, at the time the warrant was issued, it is not possible to identify, with an specificity, which computers, out of all of the computers on earth, might be searched pursuant to this warrant, Noel wrote.

He also explained how the warrant essentially flips the Fourth Amendments particularity requirement on its head, searching and then identifying specific computers instead of identifying specific computers and then searching them. Only with [information gathered through the use of malware] could the Government begin to describe with any particularity the computers to be searched; however, at that point, the computer had already been searched.

Its encouraging that courts are beginning to agree with arguments from us and others that these warrants far exceed the Fourth Amendments limits on government searches.

As the Playpen prosecutions begin to work their way up to the courts of appeals, the stakes become higher. The decisions these courts reach will likely shape the contours of our constitutional protections for years to come. Weve filed briefs in every appeal so far, and well continue to make the case that unfamiliar technology and unsavory crimes cant justify dispensing with the Fourth Amendments requirements altogether.

See the article here:
The Fight Against General Warrants to Hack Rages On - EFF

PostedMay 1, 2017 10:04 AM

UpdatedMay 1, 2017 11:29 AM

ByTimothy P. ONeill

Pretend you are taking the SAT exam. Here is a fill-in-blank question from the verbal section:

A man is walking alone on a sidewalk in a high-crime neighborhood. Two police officers are in a car approaching from the opposite direction. The car stops. One officer rolls down the window and begins to speak to the man: Come here, the officer _______.

Which word best completes the sentence?

A. commands

B. orders

C. asks

If you answered either A or B, you are still in the running for that college scholarship you are after.

If you answered C, you have probably just blown your chance for a perfect score on the verbal section. But you may have just secured yourself a seat on the Illinois Appellate Court. To understand why, take a look at People v. Ramsey Qurash, 2017 IL App (1st) 143412 (decided March 16, 2017).

The facts of the case match our SAT question above. Chicago police officer Stephen Gregory testified that after he said Come here, Qurash dropped a large white bottle into the snow. Gregory got out of the car, picked up the bottle and saw it contained a leafy substance that appeared to be marijuana. He arrested Qurash and found more contraband on his person. Qurash was charged with several drug offenses.

The majority opinion characterizes the issue in the case as [D]eceptively simple: [A]s a matter of law, do the words come here, uttered by a police officer to a citizen, result in a seizure. If it does result in a seizure, then the drugs must all be suppressed since Officer Gregory lacked either probable cause or reasonable suspicion at the moment he said those two words. The [1]st District decided the issue by characterizing Come here as a mere request that did not result in a seizure, and thus affirmed the conviction.

However, Justice David Ellis filed a dissent contending that no reasonable person would have interpreted Come here as a mere offer he could refuse. Qurash did not consent to an officers request; rather, he acquiesced to the officers command. And because the officer lacked any suspicion whatsoever when he issued that command, the seizure violated the Fourth Amendment and the conviction must be reversed.

Preliminarily, both the majority and the dissent agree that the trial courts holding that the officers words did not constitute a seizure was a question of fact deserving deferential review.

I am not so sure. True, the trial courts finding that the officer said Come here is a question of historical fact that deserves deferential review. And whether or not a defendant has voluntarily consented to an officers request for a search or seizure is an issue reviewed deferentially in Illinois. People v. West, 2017 ILL. App. (3d) 130802.

But the issue of whether a seizure has occurred is a question of law that merits de novo review. In fact, as noted above, the majority even began its analysis by describing the issue in the case as a matter of law. (Slip, 5) A seizure occurs when a reasonable person would believe he is not free to leave. U.S. v Mendenhall, 446 U.S. 544 (1980) (opinion of Stewart, J.).

Deciding how a reasonable person would react to Come here is an objective test resulting in a finding of law that merits de novo review.

Yet even under a deferential standard, I believe the dissent is correct that a seizure occurred when the officer said Come here and that the trial court was clearly erroneous in holding otherwise.

It is worth quoting Ellis at length: Those two words, alone, are not a request. Nor could they plausibly be construed as a question (Come here?) To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, Come here, any reasonable person would believe that he was required to comply with that directive that he was not free to leave.

The dissent does something else worth noting. It exhibits an awareness that an appellate court decision is not a one-off; it does not exist in a vacuum. An appellate decision in a common-law system must of necessity be Janus-faced: It must decide the case that has already occurred in the past with the realization that its decision will have impact on people in the future.

This leads Ellis to say I fear that the majoritys holding will have the unintended effect of encouraging individuals not to comply with a police officers request, or order, to come here. Under the majoritys reasoning, the best way for citizens to protect their [F]ourth [A]mendment rights is to ignore the police in that context because if they complied even though not required to do so, they would be consenting to police questioning without any [F]ourth [A]mendment protections at all.

And Ellis goes on to note the dilemma the court has created for a pedestrian in the future. For if she refuses to comply and simply continues walking and if the officer continues to say Come here a person could find herself accused of resisting or obstructing a lawful order of the police. Ellis cites People v Synnott for the proposition that merely refusing a police officers lawful order to move can constitute interference with the officer in the discharge of his or her duty. 349 Ill. App. 3d 223, 229 (2004).

Elliss dissent makes this case worth a second look. For, as he notes, Come here is not a question. Come here is not a request. Come here is an order.

Read more here:
Fourth Amendment trouble brewing - Chicago Daily Law Bulletin

As John Elwood noted recently at SCOTUSblog, the Supreme Court has relisted a set of pending cert petitions on whether the Fourth Amendment protects historical cell-site data. The relisting means that the justices didnt turn down the petitions at the usual time. They are holding the petitions, deferring a decision on whether to grant them. Thats usually a sign of some interest at the court. How much interest there is, we dont yet know.

I have mixed views on whether the court should take these cases. On one hand, theres no split. Every circuit court and state supreme court to rule on the issue has ruled that the Fourth Amendment does not protect historical cell-site data. The cert petitions claim a circuit split with the U.S. Court of Appeals for the 3rd Circuit, but I dont think thats right. The 3rd Circuit merely speculated about the possibility of Fourth Amendment protection in the course of making a statutory ruling.

A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions. It might help the justices in a future Supreme Court decision to have the benefit of circuit court rulings trying to answer those questions.

On the other hand, theres a plausible argument that the court should take the cases now without a split. That argument can draw on several different points. First, whether the Fourth Amendment protects historical cell site data is a hugely important question. The Supreme Court should step in and rule on it an some point. Second, while there is no split, there are certainly lots of opinions on the other side. Most obviously, there were 4th Circuit and 11th Circuit panel decisions, both later overturned en banc, that could provide the food for thought on the other side (even if rather unusual food for thought) that a split would ordinarily help provide.

Third, this issue is coming up so often, in almost every state and circuit, that a split is likely to emerge eventually. Fourth, the technology seems relatively stable, permitting the justices to weigh the need for equilibrium-adjustment. And fifth, the Davis good faith exception would apply down the road where a circuit has already ruled, which may counsel toward granting cert sooner to ensure that there are real stakes in the litigation when the Supreme Court decides it.

Of course, as a Fourth Amendment nerd I think it would be great if the court took these cases. The more Fourth Amendment cases on the docket, the better! As for whether they will, stay tuned as always.

Original post:
Will the Supreme Court agree to hear the Fourth Amendment cell-site cases? (And should they?) - Washington Post

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court added a second test for what government action counts as a Fourth Amendment search. Since the 1970s, the Supreme Court had held that the government commits a search when it violates a persons reasonable expectation of privacy. Jones added that the government also commits a search when it trespasses on to a persons persons, houses, papers, and effects. As I explained in an article responding to Jones, it is hardly clear what kind of trespass test Jones adopts. Although Jones purports to restore a preexisting trespass test, no trespass test existed that the court could restore. As a result, the significance of Jones hinges on just what kind of trespass test courts interpret Jones to have adopted.

In light of that uncertainty, I was fascinated by a new decision, Schmidt v. Stassi, from the Eastern District of Louisiana last week. Michael Schmidt is a suspect in the 1997 murder of Eugenie Boisfontaine. You may have heard of the case, as the investigation is the subject of the Discovery Channel TV show Killing Fields. Investigators wanted to get a DNA sample from Schmidt, so they followed his car. When Schmidt drove to a local strip mall, parked and went inside a store, an agent used a cotton swab to wipe the exterior door handle on Schmidts Hummer to collect a DNA sample. Schmidt sued the officers, claiming that swabbing his car door handle was an unlawful Fourth Amendment search.

In the new decision, Judge Lance M. Africk holds that collecting the DNA from the door handle using the cotton swab was a Fourth Amendment search because it trespassed on to the car. From the opinion:

Here, the search involved the physical touching of Schmidts Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:

Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels? If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?

Joneswhich addressed a trespass against a carsettles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers trespassorily inserted the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobileunlike an open fieldis protected by the Fourth Amendment: an automobile is an effect as that term is used in the Fourth Amendment. Jones, 565 U.S. at 404.4

But was this a trespass to chattles? That is a trickier issue. As Justice Alitos Jones concurrence explained, the elements of the tort have changed since the founding. At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels. 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, today there must be some actual damage to the chattel before the action can be maintained. Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.

The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.

The officers argued that Schmidt had abandoned his DNA by leaving it out in public for anyone to collect, analogizing the DNA to the trash left by the side of the road in California v. Greenwood. The court reasoned that Greenwood is inapplicable because the facts here involved a trespass:

[W]hatever the constitutionality of searching Schmidts curbside garbage for his abandoned DNA (a question on which the Court expresses no opinion), the officers argument that they may trespass to acquire abandoned property is not viable post-Jardines. See 133 S. Ct. at 1417 (That the officers learned what they learned only by physically intruding on [defendants] property to gather evidence is enough to establish that a search occurred.).

The Court concludes that the undisputed facts of this case establish that the officers committed a trespass to chattels when they swabbed Schmidts Hummer. Under Jones that trespass also constituted a Fourth Amendment search. Thus, Schmidt is entitled to partial summary judgment in that the swabbing constituted a search under the Fourth Amendment.

The opinion then stresses that given the present procedural posturethe parties addressed only the threshold issue of whether the swabbing was a Fourth Amendment searchthe Court expresses no opinion on whether the search was reasonable. Instead, Africk concludes that qualified immunity applies either way because the law is unsettled:

[T]he law is simply too unsettled after Jones for the Court to conclude that it is beyond debate, Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), that the officers performed a Fourth Amendment search. Neither Jones nor Jardines is precise as to the body of property law this Court is supposed to follow when applying Joness trespass test. That unanswered question at the time of the swabbing would permit a reasonable officer to conclude that the swabbing did not constitute a Fourth Amendment search.

For example, a reasonable officer could have concludedjust as the Supreme Court has in the Fifth Amendment contextthat Jones-triggering trespasses are determined by reference to existing rules or understandings that stem from an independent source such as state law. Georgia v. Randolph, 547 U.S. 103, 144 (2006) (Scalia, J., dissenting). A reasonable officer could then pivot from that understanding of the Fourth Amendment, and conclude that because the brief, harmless, nearly imperceptible touching would not constitute an actionable trespass under certain understandings of modern tort law, see 565 U.S. at 419 & n.2 (Alito, J., concurring), it did not constitute a Jones-triggering trespass. Therefore qualified immunity is proper: an officer should not be denied qualified immunity simply because he or she looked to what an actionable trespass was as opposed to the more technical definition of a trespass.

Notably, the idea here is that collecting the DNA was a search because it interfered with Schmidts rights in the car, not in the DNA itself. Thats different from the reasonable-expectation-of-privacy cases on collecting DNA, which generally focus on the potential privacy invasion in the testing of the DNA sample to reveal sensitive information.

For related issues, see the petition for certiorari I filed in Arzola v. Massachusetts in 2015, together with the states brief in opposition and our reply brief. The Supreme Court denied the petition in Arzola, but I think its a useful starting point to see how the trespass framework may change Fourth Amendment rights in the context of DNA collection and analysis.

Continued here:
Swabbing a car door handle in a public lot to collect DNA is a Fourth Amendment trespass search - Washington Post

LISTEN TO TLRS LATEST PODCAST:

by Micah J. Fleck

Yes, you read that right. A new type of undergarment that still shows up under TSA body scanning technology has been developed and it dons the text of that precious thing called the 4th Amendment to the U.S. Constitution.

According to Red Alert Politics:

Are you tired of TSA agents conducting invasive screenings and X-ray scans on you before traveling on a United Airlines flight thats run out of Pepsi?

Well, 4th Amendment Wear may not be able to help with the last two, but they can certainly aid you in telling off the TSA with a new garment you can wear when youfly.

Using metallic ink, 4th Amendment Wear literally prints the FourthAmendment of the United States Constitution onto t-shirts, underwear for men and women, and perverts kids underclothes for when the TSA agent goes too far with your children.

For those who are unaware, the Fourth Amendment ensures ones right to privacy and protects them from illegal searches and seizures from government entities.

The free market is grand, indeed.

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View post:
Special Underwear Reciting the 4th Amendment Developed to Block ... - The Libertarian Republic