Mediaboss Marketing

Imagine this: the government, for reasons you don't know, thinks you're a spy. You go on vacation and, while you're away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don't find any evidence that you're a spy, but they find something elseevidence of another, totally unrelated crime. You're arrested, charged, and ultimately convicted, yet you're never allowed to see what prompted the agents to think you were a spy in the first place.

Sounds like something from dystopian fiction, right? Yet it's exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub's home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, andcriticallymaking wholesale copies of his hard drives.

Agents were authorized by the secret Foreign Intelligence Surveillance Court ("FISC") to search for evidence that Gartenlaub was spying for the Chinese government. Theres only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBIs forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

There are plenty of troubling aspects to Gartenlaubs prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBIs searches of Gartenlaubs electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

Heres why: when agents copied and searched Gartenlaubs devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like plain viewan exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldnt have to ignore the dead body lying in the living room. But the way plain view works in the digital contextespecially forensic computer searchesis not at all clear. How far can cops rummage around our computers for the evidence theyre authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computerwhich the Fourth Amendment allows and a general search for evidence of criminal activitywhich the Fourth Amendment prohibits?

Our electronic devices contain decades' worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homesor, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn't turn into the type of general rummaging the Fourth Amendment was designed to prevent.

In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBIs search of Gartenlaubs hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcements electronic search powers and in protecting our right to privacy in the digital age.

Read more from the original source:
Secret Court Orders Aren't Blank Checks for General Electronic Searches - EFF

The good news is the Supreme Court's Riley decision forces law enforcement to obtain warrants before searching cell phones. The bad news, apparently, is everything else. To begin with, particularity remains a problem. As the Supreme Court pointed out in its decision, people's entire lives are contained in their cell phones. When searching for what's relevant to the suspected criminal activity, the government is pretty much free to dig through these "lives" to uncover what it needs to move forward with prosecution.

The lack of strict parameters (perhaps an impossibility given the nature of digital communications/data) leads to fishing expeditions operating under the cover of Fourth Amendment adherence. There's no way to prevent trolling for evidence of unrelated criminal activity. The only recourse is to challenge it after it happens. Sometimes the courts find the government has gone too far. Other times, courts say the evidence would have been "inevitably discovered" in the course of the search and prevent it from being suppressed.

Then there are decisions like the one reached by a federal court in South Dakota -- one that says just because one law enforcement agency deployed a warrant to image the contents of a cell phone doesn't mean other law enforcement agencies can take a look at it without obtaining a warrant of their own.

Volokh Conspiracy's Orin Kerr snagged the decision and added some brief analysis. A cell phone seized by local police was also apparently of interest to the federal Bureau of Alcohol, Tobacco and Firearms (ATF), which was running its own investigation on the same subject. The local cops were looking for counterfeiting evidence, while the ATF was interested in firearms-related evidence.

The locals obtained a warrant and imaged the phone's contents. In the course of its investigation, the ATF pulled up the suspect's file and noticed the recent arrest and seizure of the suspect's cell phone. The Huron (SD) police department helpfully informed the ATF that it had a copy of the cell phone's contents that the ATF could take a look at. The ATF accepted the offer, but did not perform the crucial step of obtaining a warrant. That misstep cost the ATF its evidence.

According to the government, all evidence seized -- even if unrelated to the investigation at hand -- should be accessible to any law enforcement agency without obtaining another warrant. Because teamwork. The court disagrees [PDF], pointing out that the government's asking the court to grant it an open-ended fishing license for all electronic devices seized with a warrant:

The government argues that this conclusion is impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies. The governments position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482.

According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the governments argument is taken to its natural conclusion, then this opens the door to pretextual searches of a persons cell phone for evidence of other crimes. Under the governments view, law enforcement officers could get a warrant to search an individuals cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the governments use or retention of unresponsive cell phone data collected under a valid warrant.

The court also disagrees with the government's plain view defense. In order for the "plain view" exception to work, there has to be justification for the "view" itself. In this case, the ATF had no justification for viewing the contents of a cell phone seized by another agency for an unrelated investigation.

The government also argued that the exclusionary rule shouldn't be applied to the evidence it obtained without a warrant. The court again disagrees, pointing out that the government will suffer minimally from the exclusion of evidence it apparently wasn't planning to introduce anyway. In addition, a failure to enforce the exclusionary rule in cases like these would just result in more governmental fishing trips.

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The governments actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fairs search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

In contrast, the benefits of applying the exclusionary rule in this case are clear. If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated chargeserasing the protections specifically contemplated in Riley.

All well and good as far as it goes for upholding Fourth Amendment protections, but as Orin Kerr points out, the court seems to be balancing the government's losses against the plaintiff's rights before arriving at this conclusion.

As I have written before, I dont think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isnt important, the government isnt going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

They don't call the exclusionary rule a RULE for no reason. When rights are violated, exclusion is the proper remedy. Whether or not it damages the government's prosecution should be a distant secondary concern.

See the original post here:
Federal Court Tells ATF It Can't Just Help Itself To Cell Phone Data ... - Techdirt

For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked.

In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices:

"...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated."

That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment.

That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected:

"The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about whats going on inside the home. But thats simply not the case. Smart meters not only produce far more data than analog metersthose set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog metersbut the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it."

As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon.

Read this article:
EFF: Data Collected From Utility Smart Meters Should Be Protected By The Fourth Amendment - Techdirt

The 4th Amendment, fundamentally, is concerned with privacy. A persons space either in terms of possessions or body cannot be intruded upon without justification. As stated in the amendment, a search or seizure must not be unreasonable.For example, in Weeks v. United States (1914) the Supreme Court unanimously asserted that a persons possessions could not be seized from a private residence unless the police had a warrant. A warrant is a document issued by a court after evidence is put forward that shows that there is probable cause to perform the search. The probable cause standard is considered to be something more than a reasonable suspicion. But, obviously, even probable cause is still not enough to confirm guilt. It is often vague and unclear as to when probable cause exists. As such, the law surrounding the 4th Amendment has continued to shift over the decades, as definitions have changed and exceptions have been carved out.Indeed, even the definition of a search has seen modifications over the years. In Olmstead v. United States (1928), for example, the Supreme Court rejected the notion that electronic surveillance by wiretapping phones constituted a search. But in Katz v. United States (1967), the Court reversed this precedent. Recalling the purpose of the 4th Amendment to assure citizens of their expected privacy wiretapping was brought under the umbrella of a search. A warrant is now required for these actions as well (though, today, the federal government does engage in warrant-less wiretaps within the United States for the purpose of combating terrorism though the Supreme Court has yet to weight in on the constitutionality of these potential searches).4th Amendment analysis often is involved in issues of police brutality and excessive force as well. An arrest of a person can be considered a seizure or intrusion upon that persons body. The Court dealt with exactly this kind of analysis in the 1989 case Graham v. Connor. Police officers detained and arrested a man they saw running out of a convenience store while they questioned the store clerks to make sure nothing had been stolen. The man claimed he was diabetic and having an insulin reaction, and that he was hurrying to return to a friends house to get the necessary means to stop his reaction. The police ignored his repeated requests regarding his condition, and he suffered injuries as a result while waiting to determine nothing illegal had happened in the store. The man brought a lawsuit alleging that this violated his 4th and 14th amendment rights. The lower courts applied a test that analyzed the intent of the police officers, and dismissed the plaintiffs claims when they decided that the police did not have a sadistic or malicious intent in keeping him detained.The Supreme Court disagreed and vacated the lower courts decisions. In cases involving excessive force violations of the 4th amendment, the Court determined that a reasonableness standard should be used rather than subjective intent test. This standard is easier for plaintiffs to prove. Additionally, this test must be applied through the 4th Amendment itself, rather than the Due Process Clause or other amendments. However, the Court also made sure to mention that this analysis must take into account the fact that police officers are frequently required to make fast decisions regarding their safety, and therefore this reasonableness must be viewed from the perspective of a reasonable officer at the scene.The modernization of 4th Amendment protections has continued in the 2014 decision Riley v. California. The Supreme Court ruled unanimously that police need a warrant in order to search the contents of a cellphone. The government argued that cell phones could be searched upon the arrest of an individual, comparing this to the legally acceptable search of a prisoners pockets. The Court acknowledged that given the immense amount of data stored about a person on a cell phone, searching a phone was instead far more similar to (and perhaps even worse than) searching a persons house.Still, not all searches require warrants or even probable cause. First, police officers routinely pull individuals over without warrants. Often, the facts surrounding the pull-over or the arrest constitute probable cause. If a police officer actually sees a person using drugs, for example, there is obviously probable cause for an arrest and the officer need not wait for a warrant to do his or her job. However, there are instances when police may perform searches even without probable cause at all, and with the lesser (though still somewhat vague) standard of reasonable suspicion. For example, in Terry v. Ohio (1968), the Supreme Court considered a search that police officers had conducted. The officers had patted down individuals walking on the street that they felt were exhibiting suspicious behavior. It turned out that the individuals were, in fact, carrying illegal weapons. But the defendants claimed that those weapons were found through an unconstitutional search: the officers did not have probable cause to think that the men were carrying weapons, and the defendants sought to suppress whatever the officers may have found through that search. The Court, however, rejected this argument and acknowledged that on-the-job police officers need to be permitted some amount of leeway in order to properly do their jobs. The facts of the case made the search sufficiently reasonable. As long as the search was not merely conducted on a hunch, it did not violate the 4th Amendment.

As an aside, other exceptions to needing a warrant for a search have been established as well. For example, in New Jersey v. T.L.O. (1985), the Court upheld a search performed in a school by an administrator without a warrant. Students can be searched provided there is at least reasonable suspicion.

Olmstead v. United States (1928)

Mapp v. Ohio (1961)

Katz v. United States (1967)

Terry v. Ohio (1968)

New Jersey v. T.L.O. (1985)

Graham v. Connor (1989)

County of Riverside v. McLaughlin (1991)

U.S. v. Jones (2012)

Florida v. Harris (2013)

Missouri v. McNeely (2013)

Maryland v. King (2013)

Fernandez v. California (2013)

Riley v. California (2014)

Heien v. North Carolina (2014)Florida v. Harris(2013)Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC(2012)

Smith V. Maryland(1979)

Harper v. Virginia State Board of Elections(1966)

Harman v. Forssenius(1965)

Breedlove v. Suttles(1937)

Fernandez v. California(2014)

Scott v. Harris(2007)

Brady v. Heien(2014)

Delaware v. Prouse(1979)

Heien v. North Carolina(2014)

King v. Burwell(2014)

Rodriguez v. United States(2015)

Read this article:
The Fourth Amendment - Text | Transaltion | Key Cases

Letter to the editor: Fourth Amendment for Americans Post Register Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this ...

Link:
Letter to the editor: Fourth Amendment for Americans - Post Register