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Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was New York Times Although Judge Gorsuch has a decidedly conservative record on the bench, by at least one measure his view of the Fourth Amendment's protections against unreasonable searches he has been relatively moderate, according to legal scholars and a ... Trump's Supreme Court pick Neil Gorsuch has a solid record of defending the Fourth AmendmentRare.us Here's what you need to know about SCOTUS nominee Neil Gorsuch.Reason (blog) Neil Gorsuch & the Police: What Are His Views on Law Enforcement Issues?Heavy.com Slate Magazine -The Atlantic -National Review all 5,657 news articles »

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Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was - New York Times

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Trump's Supreme Court pick Neil Gorsuch has a solid record of defending the Fourth Amendment Rare.us The Fourth Amendment to the U.S. Constitution 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, and no Warrants shall issue, but upon probable ... Supreme Court nominee Neil Gorsuch's key cases: In his own wordsUSA TODAY Here's what you need to know about SCOTUS nominee Neil Gorsuch.Reason (blog) In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and StyleNew York Times Heavy.com -Slate Magazine -The Atlantic -SCOTUSblog all 3,550 news articles »

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Trump's Supreme Court pick Neil Gorsuch has a solid record of defending the Fourth Amendment - Rare.us

Written byLisa A. Hayes

The Supreme Court has been short one justice for nearly a year, and President Trump is expected to announce a nominee for the vacant seat this week. While we do not yet know who that nominee will be, the President has repeatedly promised to fill the vacancy with a justice very much like the late Justice Antonin Scalia. While I personally take issue with much of Justice Scalias jurisprudence through the years, there is no disputing that he was a strong supporter of the First and Fourth Amendments, and the person appointed to take his seat should be the same.

Justice Scalia was a fierce defender of Americans right to privacy. He believed that the sanctity of a persons home and property was to be held above the governmental interests in fighting crime. For example, he wrote the majority opinion in Kyllo v. United States, a 5-4 ruling that barred police from peeping into a home with a thermal-imaging device. In United States v. Jones a man had his Jeep tracked with GPS devices without a warrant, leading to a drug trafficking conviction. Justice Scalia wrote the majority opinion to hold that when law enforcement officers install a digital age GPS tracker on a suspects car, enabling the police to constantly track the vehicle, they must first get a warrant. And Justice Scalia famously dissented in Maryland v. King, arguing that the Fourth Amendment forbids law enforcement from collecting DNA from arrestees and predicting that as a consequence of the majoritys decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

In the First Amendment realm, Justice Scalia cast a decisive 5-4 vote in one of the most important free speech case of the 1980s, Texas v. Johnson, which held that flag burning qualified as constitutionally protected expression. He did this despite his personal distaste for flag burners: If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king. Similarly, he authored the majority opinion in 2011s Brown v. Entertainment Merchants Association, a victory for First Amendment advocates. There the video-game and software industries, filed a preenforcement challenge to a California law restricting the sale or rental of violent video games to minors. Led by Scalia, the Court found video games qualify for First Amendment protection because the games like protected books, plays, and movies communicate ideas. Justice Scalia found the basic principles of freedom of speech do not vary with a new and different communication medium.

The next justice will be asked to protect our First and Fourth Amendments in the digital context. 87% of Americans, and 99% of all 18-29 year-olds are online. Even my 97 year-old grandmother uses the internet to read the news, make political donations, and communicate with her loved ones and doctors. Almost 70% of adult Americans own a smart phone. The phones are used to message, Instagram, and tweet, as we maneuver from point A to point B. In the process, we leave data trails everywhere, with no clear legal guidance as to how that data should be protected or utilized.

In recent years, we have been grappling with an increasing morass of technology law headed to the courts: We monitor our pets, children, and homes remotely; can authorities tap into those same secure webcams and listening devices? We use voice activation to turn on virtual assistants to play music or listen to a weather forecast; can those requests be recorded and later released to the police? Upon being arrested, can you be compelled to unlock your phone with your fingerprint reader, or to provide the phones security code or pattern? Commuters pay their bridge and toll fees with an automated device; can the police use the same data about their driving distance and times to slap them with a speeding ticket?

Most of the law surrounding technology use has yet to be written. Many of us intuitively understand that our steadily growing mountains of online data are best viewed as an extension of our offline persona. How much privacy we are entitled to retain in our own involuntarily generated data and how much protection we receive for our speech online remains to be seen.

Americans deserve a justice who will protect their First and Fourth Amendment rights.

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President Trump Should Continue Justice Scalia's First & Fourth Amendment Legacy - Center for Democracy and Technology (blog)

Its no secret online service providers hold tons of sensitive data about their customers, which is why EFF calls on companies to stand up to abusive or overbroad government demands for this data. Its especially important for providers to play this role when the government forces them to stay silent and not notify their users about the governments demands. In those cases, the service provider is simply the only party able to challenge the government. Unfortunately, companies are too often met with hurdles to vindicating their users rights. Two recent cases illustrate some of the problems they face.

Microsoft sued the government last year, challenging portions of the Electronic Communications Privacy Act (ECPA) that allow the government to serve a warrant on the company to get access to customers emails and other information stored on remote serversall without telling users their data is being searched or seized. Microsoft argues that precluding notice to its users violates both its First Amendment rights and its customers rights under the Fourth Amendment to be notified of the search. (EFF filed an amicus brief in support of Microsoft.)

Today, Microsoft is facing a hearing on the governments motion to dismiss the lawsuit. Troublingly, the court has asked the parties to address whether Microsoft should be allowed to assert its customers Fourth Amendment rights at all, because in the words of the Supreme Court, Fourth Amendment rights are personal and may not be vicariously asserted. However, there are well-established precedents allowing third parties to stand in the shoes of others and bring a lawsuit. In these cases, standing requires a close relationship between the third party and the individual whose rights are being asserted and a demonstration of circumstances preventing the individual from personally bringing the lawsuit. Thats what allows doctors to sue behalf of patients for the right to an abortion and liquor vendors to challenge unequal, gender-based treatment of their customers, to give just a few examples. Microsofts lawsuit fits this model: Microsoft has a close business relationship with its customers, and it is suing for the very reason that the governments secrecy in demanding data held by Microsoft prevents its customers from asserting their own rights. Even the Foreign Intelligence Surveillance Court of Review, not known for its friendliness to the Fourth Amendment, found in 2008 that Yahoo could sue to protect its customers data against warrantless collection by the NSA. Given that the papers and effects protected by the Fourth Amendment are increasingly stored not in the home but by companies like Microsoft, barring these companies from suing to protect Fourth Amendment rights would be a great setback for privacy. Well be watching closely to see what the court in Microsofts case decides.

A closely related issue surfaced in a case involving Facebook, which has spent years trying to quash 381 bulk warrants issued by New York State for the contents of users accounts. Back in 2013, a trial court determined that Facebook couldnt stand in the shoes of its users, and Facebook appealed. Rather than simply relying on the question of vicarious standing, however, the intermediate court questioned how and whether the Fourth Amendment even protects the information Facebook was being asked to provide, namely the entire contents of accounts. Whats more, the court determined that even though Facebooks assistance was required to produce the information, it need not be given a chance to object to the search warrants in advance.

The case has now reached New Yorks highest court, and earlier this month, EFF joined an amicus brief written by the law firm of OMelveny & Myers along with the Brennan Center for Justice, the Center for Democracy & Technology, Access Now, and TechFreedom to highlight the important Fourth Amendment issues at stake. As the brief explains:

Courts should apply the Fourth Amendment with full force to protect against improper government access to personal data that is stored with Internet Service Providers (ISPs). This data often includes both sensitive records previously found in the home and highly personal information never found in a home in any form. . . . The fact that such data is held by a third-party ISP like Facebook should not diminish Fourth Amendment protections. If anything, searches and seizures of data held by ISPs deserve heightened Fourth Amendment scrutiny because the aggregation and remote storage of private data greatly reduces resource constraints on law enforcement and allows for the bulk warrant tactics employed here.

Were hopeful that the New York court will recognize the importance of allowing third parties to vindicate Fourth Amendment rights of their users and to apply these rights robustly.

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When the Law Stands in the Way of Tech Companies Standing Up for Their Users - EFF

It ought to bother us that in the case of most of the recent terror attacks in the United States, law enforcement knew the people involved.

Omar Mateen, who killed 53 in a gay bar in Orlando, had been questioned twice after people from his mosque told the FBI he had become dangerously radicalized. Russia had warned the FBI and CIA to beware of the Tsarnaev brothers who bombed the Boston Marathon.

We knew him. We had investigated him. We had put him in jail, Kentucky Sen. Rand PaulRand PaulOvernight Finance: Ryan lays out timeline for ObamaCare, tax reform | Dow hits 20K | GOP weighs how to pay for border wall Trump review exposes GOP divide on torture Rand Paul criticizes alternative GOP health plan MORE noted. Yet we did not closely monitor him after all of this, largely because we were too busy with searching the entire countrys electronic communications.

Paul raised points privacy advocates have wrestled with for some time. Why didnt we realize these were the people who posed the most serious threats? How can we help law enforcement determine which of all the suspected terrorists it monitors is most likely to launch an attack? Are we watching closely enough or perhaps too closely? Would we notice more if we watched less?

These questions will be at the forefront in coming weeks when Congress takes up legislation to update the Electronic Communications Privacy Act. Such laws always attempt to balance legitimate security needs against Americans right to privacy in their own affairs. In this case, it seems Americas security would be enhanced if it gave Americans back their right to email in private.

The previous two presidential administrations viewed the 1986 law as a license to snoop into whole classes of emails without a warrant as long as the email is 180 days old or more. And the results have not been edifying.

This random searching for the right combination of words to trigger further surveillance measures is itself an imprecise science, and one National Security Agency blogger estimated that reading all of Americas email generates 10,000 misfires for every hit. Not for nothing has National Law Review named this problem the top privacy issue of 2017.

Additionally, unfettered access to private emails does not seem to comport with the Fourth Amendment protections against search and seizure without a duly sworn warrant.

Congress is attempting to fix the problem by restoring the Fourth Amendment. The Email Privacy Act, just re-introduced in the new Congress by Reps. Kevin YoderKevin YoderCongress must restore 4th Amendment protections for email privacy Overnight Cybersecurity: Russia report fallout Overnight Tech: Trump meets Alibaba founder | Uber to make some data public | GOP Lawmakers tapped for key tech panels MORE (R-Kansas) and Jared Polis (D-Colo.) would force the government to obtain an individualized warrant before searching anyones email.

Similar legislation, with more than 300 co-sponsors, passed the House last April by a 419-0 vote. It stalled in the Senate after controversial amendments were added, but Sens. Chris CoonsChris CoonsCongress must restore 4th Amendment protections for email privacy Senators move to nix Trump's ban on funding NGOs that provide abortions Senate confirms Trump's UN ambassador MORE, D-Del., and Orrin HatchOrrin HatchCongress must restore 4th Amendment protections for email privacy GOP lawmakers set for packed schedule at Philly retreat Overnight Healthcare: Wounded Price heads toward confirmation | 'Death spiral' debate heats up | House panel to look at ObamaCare replacement bills MORE, R-Utah, plan to reintroduce it in this Congress.

An update for ECPA has long been in order. After spending two decades in the technology sector where things evolve at light speed, it is hard to believe that were starting another year with laws that were written for how computing worked in the 1980s, said Rep. Suzan DelBene (D-Wash.), a former Microsoft VP.

But the impetus for action by Congress is a case in which the government ordered Microsoft to turn over emails stored on a server in Ireland. Although the courts ruled in Microsofts favor, the DOJ appealed the decision. This week, a federal appeals court affirmed that law enforcement cannot demand emails stored outside the country.

The Senate legislation, called the International Communications Privacy Act, would codify the court decision and require a specific search warrant for turning over emails to the government. It also would create a clear legal framework for law enforcement to obtain electronic communications of people in the United States, regardless of where those communications are housed and would allow law enforcement to obtain electronic communications relating to foreign nationals in some circumstances.

The legislation also would reform the Mutual Legal Assistance Treaty process and establish that data providers should not be subject to data localization requirements, which Hatch says are incompatible with the speed, innovation and borderless nature of the Internet.

Mary Jo White, the head of the Securities and Exchange Commission, asked senators to consider exempting the SEC from the warrant requirement because it cant get the FBI to request warrants on its behalf and it sometimes conducts civil investigations with no offsetting criminal investigation and thus has no opportunity to request warrants.

But an exception for the SEC means an exception for the IRS and a few other agencies, and thus should be opposed.

This is a situation where Congress seems largely on the same page, but no one is sure what President Trump will do with such legislation. He has vowed to cut regulation but has expressed support for providing strong anti-terrorism tools to foreign and domestic police.

But a general search not only is precisely what the Constitution forbids, it creates a lot of useless leads law enforcement has to follow. It will keep us safer from both overweening government and enemies abroad if Congress can get reform over the finish line.

Brian McNicoll is a former director of communications for the House Committee on Oversight and Government Reform and a former senior writer for the conservative Heritage Foundation.

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

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Congress must restore 4th Amendment protections for email privacy - The Hill (blog)