Mediaboss Marketing

Jan 18, 2017

This week, Note to Self gets in our time machine, back to the court cases that brought privacy from the founding fathers to Google Docs. Stories of bookies on the Sunset Strip, microphones taped to phone booths, and a 1975 Monte Carlo. And where the Fourth Amendment needs to go, now that were living in the future.

The amendmentdoesnt mention privacy once. But those 54 little words, written more than 200 years ago, are a crucial battleground in todays fight over our digital rights. That one sentenceis why the government cant listen to your phone calls without a warrant. And its why they dont need one to find out who youre calling.

But now, we share our deepest thoughts with Google, through what we search for and what we email. And we share our most intimate conversations with Alexa, when we talk in its vicinity. So how does the Fourth Amendment apply when were surrounded by technology the Founding Fathers could never dream of?

With Laura Donohue, director of Georgetowns Center on Privacy and Technology. Supreme Court audio from the wonderful Oyez.org, under a Creative Commons license.

If you want to visit a phone booth, there are four leftin New York City. They're all on West End Avenue, and there's even a kids bookabout them.

The tech show about being human. Hosted by Manoush Zomorodi. Produced by WNYC.

View original post here:
The Bookie, The Phone Booth, and The FBI - WNYC

Our Constitutions Fourth Amendment reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As with nigh all the rest of our Constitution, the federal government has long been ignoring the Fourth. Likely the most notorious example is the National Security Administration (NSA)s bulk data collection. Which is the Feds: (S)toring the online metadata of millions of internet users for up to a year, regardless of whether or not they are persons of interest to the agency.

The NSA has been amassing so much data on persons notof interest that it built a $1.2 billion data center thats seven times larger than the Pentagon. (If youre questioning whether the Fourth Amendments papers protection applies to digital data imagine hitting Print.)

Let me guess what youre wondering now: How could the NSA possibly be issued this sort of mass, blanket warrant, under the auspices of the Fourth Amendment if millions of these persons are notof interest? I.e. totally devoid of any probable cause? A very reasonable question.

The NSA laid claim to the authority to do this under the auspices of the Patriot Act. Which is not how things are supposed to work. Congress cant pass laws that eviscerate Constitutional protections they must amend the Constitution to eviscerate said protection. So, of course, the poorly written Patriot Act is trumped (no pun intended) by the Constitution.

The Senate has long been ignoring another Constitutional charge to properly vet federal judges prior to confirmation. So our judiciary is addled throughout by men and women in black gowns who shouldnt be. Because they impose their personal policy preferences rather than rule within the confines of the Constitution.

Even under these conditions, we do occasionally get good legal decisions. In May 2015, the 2nd U.S. Circuit Court of Appeals ruled the NSAs build data collection is unconstitutional. In response, President Barack Obamas Attorney General Loretta Lynch said: she was unaware of privacy violations under its existing program.

Madame Attorney Generals blissful ignorance is emblematic of the Washington, D.C.-wide problem. (As, too, was her being confirmed AG by a yet-again-too-compliant Senate.)

And, of course, the Feds arent just massively overreaching on domestic data they are overreaching overseas as well.

Under the auspices of the now-woefully-outdated 1986 Electronic Communications Privacy Act (ECPA), the Feds obtained a warrant against tech giant Microsoft. With which they tried to collect data stored on servers Microsoft has outside of the United States (in this instance, in Dublin, Ireland).

This would be horrendously bad precedent as tin horn dictators the world over could and would start looking to get at data contained within our borders. To allow the Feds to do this to Microsoft would be to allow one of the worst genies ever out of its bottle.

Thankfully, the very same Second Court of Appeals that dumped the NSAs bulk data collection agreed and unanimously told the Feds they couldnt have access to Microsofts overseas servers. (God bless them.)

The very same Attorney General Lynch still bathing in her blissful ignorance has filed to reopen the case. Which brings us to Congress Fourth Amendment reminder we mentioned at the outset. Which would stop Madame Attorney Generals abuse here and a whole lot of abuses elsewhere.

The (Senate) bill is called the International Communications Privacy Act (ICPA). It is, amongst other things, a DC unicorn it is bipartisan. And bi-cameral as members of the House have joined in its crafting.

And it will rein in an overreaching federal government that is forcing companies to violate the laws of other countries in which they operate to give the U.S. government data to which it really shouldnt have access.

Because the Fourth Amendment (and the rest of the Constitution) is limited to our territorial bounds. Else wed better start invading a whole lot of places in which all sorts of our Constitutional rights are being routinely violated in their jurisdictions.

Obviously, the Feds need a reminder of this fact. ICPA is that reminder. It is pathetic that you need a Congressional backstop to a Constitutional right but were dealing with DC here, so we are oft dealing in things pathetic.

I am on the record as being nigh always against lame duck Congressional action. I dont like officials We the People just said should no longer be voting on legislation voting on legislation. But ICPA is a perfectly reasonable exception that proves this rule.

You can almost certainly pass ICPA just with people who will again be here in the next Congress. And ICPA has been languishing for more than two years all the while (and going back years and years before) the Feds have been vastly exceeding their Constitutional bounds. And in the Microsoft case are looking to do so yet again.

So the overreaches must be ended. ICPA ends them. So lets pass ICPA.

Share on Facebook

Share on Twitter

Continued here:
Unfortunately, Congress Needs to Pass This Fourth Amendment ...

Placing a video camera on a utility pole and conducting surveillance can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But this tool may be subject to the Fourth Amendment restrictions. This post reviews the evolving case law, particularly since the United States Supreme Court ruling in United States v. Jones, 132 S. Ct. 945 (2012).

Jeff Welty in a 2013 post reviewed video surveillance generally, not just pole cameras, and discussed Jones and the few cases decided in light of its ruling. This post, after reviewing Jones, will discuss a few pole camera cases decided in federal courts since his post and whether officers should seek approval from a court before conducting pole camera surveillance.

United States v. Jones. Officers installed a GPS device without a valid search warrant on a suspected drug-traffickers vehicle and then tracked the vehicles movements for about four weeks. The holding of Jones was that the installation of the GPS tracking device on a suspects vehicle was a Fourth Amendment search because it involved a physical intrusion (a trespass) into the vehicle for the purpose of obtaining information. In addition, five Justices (the four who joined Justice Alitos concurrence in the judgment plus Justice Sotomayor, who also had joined the Courts opinion) expressed the view that prolonged GPS monitoring intrudes upon a suspects reasonable expectation of privacy and is a search under the Fourth Amendment. These Justices reasoned that although short-term monitoring of a suspects movement on the public roads may not intrude upon a reasonable expectation of privacy, long-term monitoring generates so much information about a suspects movements and activities that the aggregate effect is an invasion of privacy.

Although Jones involved tracking a suspects movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while officers are free to observe a suspects residence from the public streets or a neighbors property to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and constitutes a search under the Fourth Amendment.

Post-Jones cases on pole camera surveillance. The Jones ruling revived the trespass theory in Fourth Amendment analysis concerning what constitutes a search, so the trespass theory and the separate reasonable expectation of privacy theory both must be considered in appropriate cases.

Trespass theory. All the cases that have considered the issue have rejected a defendants argument based on the trespass theory that the installation of the camera was a trespass under Jones, because in most cases the utility pole is not on the defendants property or, even it is located there, the utility had an easement to access the pole as needed. United States v. Nowka, 2012 WL 6610879 (N.D. Ala. 2012); United States v. Root, 2014 WL 4715874 (E.D. Wash. 2014); United States v. Wymer, 40 F. Supp.3d 933 (N.D. Ohio 2014).

Reasonable expectation of privacy theory. I have found one post-Jones cases that ruled that warrantless pole camera surveillance violated the Fourth Amendment under the reasonable expectation of privacy theory. That case is Shafer v. City of Boulder, 896 F. Supp. 915 (D. Nev. 2012), where a pole camera surveilled the defendants backyard without a search warrant for 24 hours a day for 56 days, and the camera was long-range, infrared, and waterproof. The defendants backyard was protected by a solid fence and within the homes curtilage. The court cited two pre-Jones cases in support of its ruling, but not Jones, probably because it was unnecessary to do so based on the facts.

Most of the cases have ruled that warrantless pole camera surveillance did not violate the Fourth Amendment under the reasonable expectation of privacy theory. For example, a recent federal appellate case, United States v. Houston, 813 F.3d 282 (6th Cir. 2016), found that ten weeks surveillance with a camera installed on a utility pole about 200 yards from a trailer used as a residence on a farm did not violate a residents reasonable expectation of privacy because the camera recorded the same view of the residence as that enjoyed by people on nearby public roads. The court believed that the Jones case did not require a different result. Interestingly, a concurring opinion in Houston believed that Jones required the officers to obtain a search warrant.

A few case have upheld surveillance with reservations, being bound by prior pre-Jones precedents. See, e.g., United States v. Garcia-Gonzalez, 2015 WL 5145537 (D. Mass. 2015).

There have been no North Carolina appellate court or United States Supreme Court cases on pole camera surveillance since Jones.

Advice to officers. Nothing in Jones or lower court cases after Jones calls into question the use of surveillance cameras that are focused on public streets, parks, and other public areas. For example, if drug activity is commonplace at a particular intersection, the Fourth Amendment does not preclude placing a surveillance camera on a light pole facing that intersection.

It would not be surprising if in the relatively near future the United States Supreme Court decides a case on pole camera surveillance, and there is a reasonable probability that the Court might rule that extensive video surveillance of a residence requires a search warrant or its functional equivalent, such as a court order. Of course, predicting future Court rulings is highly speculative and subject to reasonable disagreement.

In the meantime, a cautious officer may wish to seek a court order authorizing the use of a pole camera directed at a residence or at least consult with the officers agencys legal advisor or a prosecutor before deciding not to do so. No case or statute sets out the proper procedure for obtaining such an order, but it likely would be similar to obtaining a search warrant or other investigative court order that could be sought ex parte and would need to be supported by an affidavit establishing probable cause. If a court order is sought, the order might limit pole camera surveillance to a relatively short period, such as 30 days, and apply again if additional surveillance is needed.

See more here:
Pole Camera Surveillance Under the Fourth Amendment ...

Legal Topics > Government > Constitutional Law > Constitutional Laws

The Fourth Amendment of the U.S. Constitution protects individual privacy interests by preventing unreasonable searches and seizures. An individual's privacy interests are referred to as a person's reasonable expectation of privacy. The Fourth Amendment protects this interest by limiting when and how police can conduct a search of a citizen's house, papers, effects, or physical person.

However, the Fourth Amendment only protects people against "unreasonable" searches. "Reasonable" searches can override a person's Fourth Amendment privacy concerns. Generally, the police need two things before they can invade a persons reasonable expectation of privacy:

Under certain circumstances however, the police can conduct searches without a warrant.

The Fourth Amendment only applies to searches that violate a person's reasonable expectation of privacy. If no reasonable expectation of privacy exists, then the Fourth Amendment cannot protect that search. Courts ask two questions when determining whether a person had a reasonable expectation of privacy:

A search warrant is an order authorizing police officers to search for specific objects or materials at a specific time and location. Police obtain these warrants by showing a judge that they have probable cause to believe that criminal activity is taking place and that illegal contraband will be found at the place to be searched.

The Fourth Amendment does not define probable cause; it is a term developed by judges and lawyers to assist in determining the reasonableness of a search. Probable cause occurs where the facts and circumstances of a situation combined with a police officer's knowledge and experience lead him to believe that criminal activity is occurring. Thus, probable cause is somewhere above a mere suspicion but less than beyond a reasonable doubt.

Generally, in cases where a police officer seeks a search warrant, and his probable cause is mistaken but made in good faith, the search can still be considered valid and reasonable.

A lawyer can help you navigate through the complex legal system and restore your privacy rights. If a search is unreasonable, the police cannot use any evidence obtained in the search. Therefore, it is important to discuss the search with a criminal defense attorney who can evaluate the search procedure.

Consult a Lawyer - Present Your Case Now! Last Modified: 10-03-2016 09:31 PM PDT

Find the Right Lawyer Now

Originally posted here:
Privacy Protection - 4th Amendment Legal Issues ...

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court's rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution's prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

"...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court's ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect's involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

"In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense."

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect's other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn't know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don't talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

PoliceCrimes.com

This Site Has Been Online Since 2004

fourth amendment, constitution, miranda rights, 4th amendment, searches, fourth amendment, dont talk rights constitution, miranda rights, 4th amendment, searches, rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. Silent, dont talk rights, Jury, cop, Jury trial, police, fourth amendment, constitution, miranda rights, 4th amendment, searches, fourth amendment, dont talk rights constitution, miranda rights, 4th amendment, searches, rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. Silent, dont talk rights, Jury, cop, Jury trial, fourth amendment, constitution, 4th amendment, search, american, rights, body search, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth, Silent, police, courts, Judge, the Fifth, Sixth, police, Supreme Court, courts, Judge, Fifth Amendment, Sixth Amendment. Americans, lawyer, Supreme Court, fifth amendment, silent, dont talk rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. dont talk rights Supreme Court, courts, Judge, Fifth Amendment, Sixth Amendment. Americans, lawyer, Supreme Court, fifth amendment, silent, dont talk rights, civil rights, self incrimination, unreasonable searches, right counsel, bill rights, searches, fourth. dont talk rights.

Follow this link:
Fourth Amendment Body Search Home Search You rights Constitution