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The Fourth Amendment to the United States Constitution protects the rights of the people against unreasonable searches and seizures of their person, property, and home. A recently-decided federal court case has explored the application of this important constitutional right to an emerging technological tool employed by schools and institutions of higher education: at-home examination proctoring. The holding in the case (Aaron M. Ogletree v. Cleveland State University) could provide insight into how similar cases may be decided across the United States.

To defend against a claim of unconstitutionality, the government must show that probable cause exists to justify a proper search and seizure. While probable cause is the typical standard under the Fourth Amendment, courts have recognized that certain environments may necessitate a lower standard when a legitimate public interest outweighs an individuals right to privacy. In the seminal case, New Jersey v. T.L.O. 469 U.S. 325 (1985), the United States Supreme Court established two important principles which helped shape the application of the Fourth Amendment to our education system: 1) Fourth Amendment protections apply to schools when public school officials conduct searches and seizures; and 2) a schools interests in maintaining a safe learning environment warrants a lesser standard than probable cause.

With respect to the first principle, the Supreme Court held that public school officials act as representatives of the State because they enforce publicly mandated educational and disciplinary policies. As such, the Fourth Amendment applies to searches conducted by school authorities. For the second principle, the Supreme Court lowered the probable cause standard in public schools to mere reasonable suspicion, holding that a schools interest in maintaining the safety and protection of students, faculty and staff, and school property outweighs a students individual privacy rights on school grounds.

In light of technological advancements and the normalization of remote at-home testing, courts must now answer a question when balancing a students individual right to privacy with the schools interest in promoting safety: How far is too far? On August 22, 2022, the Northern District of Ohio, Eastern Division, issued a decision in Aaron M. Ogletree v. Cleveland State University, holding that the universitys policy of allowing proctors to request students scan their room before taking a virtual exam violated the students Fourth Amendment rights. Plaintiff Aaron Ogletree (Ogletree), a student at Cleveland State University (University), filed suit after he was required to scan his bedroom before taking a virtual chemistry exam. The scan of Ogletrees bedroom lasted less than a minute, taking as little as ten to twenty seconds. During this scan, other students taking the remote exam could see Ogletrees room. As part of the proctoring procedure, the University allowed its faculty members discretion to choose which tool or combination of tools, if any, were necessary to preserve the integrity of the remote exam. There was no set policy addressing what to do in the event a student declined to scan their room. However, the proctor in this case testified that they would have allowed the student to take the exam and later notified the professor about the students refusal.

The Court agreed with Ogletree that he had a reasonable subjective expectation of privacy in his bedroom. In reaching this decision, the Court deemed that the room scans granted greater access than what would normally be given absent a warrant or invitation. The Court disagreed with the Universitys contention that cameras are generally available and commonly used, stating that a camera cannot be used in someone elses home, office, or other place not publicly visible without the owners consent.

It was undisputed that the room scan occurred over a short period of time, and Ogletree had discretion over where to direct the camera in his room, as well as some warning to take steps to protect his privacy and ensure that confidential materials were not readily in view. However, the Fourth Amendments protection of the home has never been tied to the measurement of quality or quantity of information obtained during a search.

While the Court found that the University had a legitimate interest in ensuring academic fairness and integrity, the University did not have to use room scans to ensure academic integrity. Not only was there a record of sporadic and discretionary use of room scans, other professors used different non-invasive methods which still protected academic integrity. Accordingly, the Court held that the Universitys practice of conducting room scans was unreasonable under the Fourth Amendment.

As it stands, the ruling in the Ogletree case cannot be used as binding authority in California; however, that does not mean it should be disregarded. California community colleges and K-12 school districts should recognize that while they have an interest in protecting academic integrity, effectuating a policy that invades a students private room in their home goes too far and could trigger a Fourth Amendment issue. Instead, schools should consider implementing alternative methods to video scanning, which may include programs that remove or prohibit internet access during exams, track typing, timed testing, monitoring students directly through the video camera on the computer, and varying question orders on tests from student to student to protect exam integrity when providing remote tests. These are only a few examples of how educational institutions may avoid Fourth Amendment violations while still furthering legitimate school interests. Questions regarding the Fourth Amendment, its application to schools and institutions of higher education, and how to avoid liability in situations such as remote testing, should be directed to counsel for more information.

The rest is here:
How far is too far? Searching Students' Homes and Remote Test Proctoring - Lexology

From Magistrate Judge Reid Neureiter's Report and Recommendation yesterday in Huff v. City of Aurora (D. Colo.) (the ultimate decision will be in the District Judge's hands, though such Magistrate Judge Reports and Recommendations are generally quite influential):

This lawsuit arises from an incident that occurred on October 10, 2019 at the Aurora home Mr. Huff shared with his wife, young daughter, and brother, George. That day, a man named George Bejar-Gutierrez, whom the brothers allowed to stay at the residence, stole George Huff's vehicle to drive to a methadone clinic. When Mr. Bejar-Gutierrez eventually returned, he was under the influence of methadone and George Huff's car was damaged. A confrontation, initiated by Mr. Bejar-Gutierrez, ensued, which prompted a passerby to call 911. Officers Doorgeest, VanDyk, and Vaughan of the Aurora Police Department ("APD") were dispatched to the scene, where they met with the Huff brothers, who explained what had happened. The officers informed the brothers that neither would be charged with any crime, and Andrew Huff gave them his cell phone number for any future communications.

Mr. Bejar-Gutierrez, who had fled before officers arrived and then proceeded to threaten the Huff brothers throughout that day and into the evening, eventually placed his own call to the APD, and met with Officers Ord, Marrero, and Oviatt at around 7:00 p.m. at a different Aurora residence. Mr. Bejar-Gutierrez told these officers that the Huff brothers assaulted him and that Andrew Huff had a firearm. Mr. Huff alleges that Mr. Bejar-Gutierrez was a convicted felon who had previously been arrested for giving false information to the APD.

At 11:30 p.m., Officers Ord, Marrero, and Oviatt, without any advance notice to Mr. Huff, went to Mr. Huff's home. They parked around the corner and, wearing all black clothing, proceeded to "creep" through neighboring yards towards Mr. Huff's residence. When Mr. Huff, who was smoking outside, saw these unidentified individuals advancing upon his home, he believed that Mr. Bejar-Gutierrez was following through on his earlier threats. He ran inside and retrieved a shotgun. He was facing the window with both hands by his side. His left hand held the shotgun by the barrelhis finger was not on the trigger and the gun was pointed at the ceiling. About 30 feet away, Officer Ord drew his weapon and, as he yelled, "Put your hands up, put your hands up!", fired five shots at Mr. Huff. Mr. Huff, who was diving away from the window as Officer Ord opened fire, was shot in rectum and severely injured. Another round entered the room where his daughter lay sleeping.

Officer Ord attempted to justify his actions by exclaiming that Mr. Huff "came into the window with a gun," and afterwards stated, "They are racking up in the garage," when, in fact, Mr. Huff, bleeding profusely on the floor, was merely calling 911 for help. Mr. Huff was charged with multiple felonies, all of which were ultimately dismissed. The second is a claim for municipal liability brought against the City for its allegedly unconstitutional policies, practices, and customs.

The Magistrate Judge reasoned that Huff had adequately stated a Fourth Amendment claim:

"To state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a seizure occurred and that the seizure was unreasonable." "[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." In assessing an excessive force claim under the Fourth Amendment, "the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." The inquiry "requires careful attention to the facts and circumstances of each particular case." In conducting this analysis, the Court must "consider the factors the Supreme Court clearly set forth in Graham v. Connor." These three factors are "(1) 'the severity of the crime at issue,' (2) 'whether the suspect poses an immediate threat to the safety of the officers or others,' and (3) 'whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.'"

The first Graham factor, "the severity of the crime at issue," is inconclusive at this stage.

Understandably enough, the Amended Complaint does not state what Mr. Bejar-Gutierrez told officers when he met with them on the evening of October 10, 2019, beyond, "George Bejar-Gutierrez claimed that the Huff brothers had assaulted him earlier in the day and claimed that Plaintiff had a firearm." It is unknown whether Mr. Bejar-Gutierrez described a felonious assault, i.e., that he suffered serious bodily injury at the hands of the Huff brothers or that a deadly weapon was used. Unhelpfully, in his motion, Officer Ord argues that he and the other officers were investigating Mr. Huff for assault, "which could have been considered a felony in the state of Colorado." Officer Ord is more definitive in his reply; he says that Mr. Bejar-Gutierrez reported a "felony assault." This incongruity is left unexplained, but it can and should be explored in discovery.

What Mr. Huff does allege, and what the Court must accept as true, is that the officers waited four hours after the alleged assault was reported to attempt to contact Mr. Huff. Officer Ord suggests that it is reasonable for police to take the time and prepare for a safe approach of an armed suspect. While the Court does not discount this argument, the delay could equally imply that the officers did not believe that exigent circumstances existed such that their later actionswaiting until almost midnight; parking around the corner; "sneaking" through the neighbors' yards; silently taking positions around the front of the house; all while not identifying themselveswere justified.

Moreover, what "preparations" the officers were taking during this time is relevant. Did they check the criminal records of the parties? Did they check whether Mr. Huff's firearm was registered? Did they bother to inquire whether there were prior reports from the parties that had previously been investigated by other officers the same day? Did they see that the brothers had been cleared of wrongdoing by their fellow officers? These are issues to be developed during discovery.

The second Graham factor, "whether the suspect pos[ed] an immediate threat to the safety of the officers or others," "is the 'most important' and fact intensive factor in determining the objective reasonableness of an officer's use of force."

"A frequent concern of the courts is the use of deadly forcethat is, 'force that the actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily harm.'" The Tenth Circuit has set forth four nonexclusive factors to consider when assessing the seriousness of a threat that precipitated an officer's use of deadly force: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect."

The first Larsen factor goes to "whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands." Mr. Huff alleges that the officers did not identify themselves at any time prior to the shooting and that Officer Ord fired his weapon at the same time as he shouted, "Hands up!" "The Supreme Court has said that 'deadly force may be used if necessary to prevent escape [of one who threatens an officer with a weapon], and if, where feasible, some warning has been given.'" Taking the allegations of the Amended Complaint as true, Mr. Huff was never informed that he was dealing with police officers, much less that deadly forced might be used. Given that "the failure to warn when feasible and without excuse is so fundamental that it is often dispositive," this factor weighs in favor of Mr. Huff.

The second Larsen asks "whether any hostile motions were made with the weapon towards the officers," and likewise weighs in favor of Mr. Huff. According to the Amended Complaint, Mr. Huff did not point his weapon at anyone; he held the shotgun by its barrel and it was pointed at the ceiling. Nor did he ever fire the weapon. Officer Ord argues that "Plaintiff's appearance at the front window with a shotgun in his hand was, by itself, hostile in nature." But given that there is no "per se rule of objective reasonableness where a person points a gun at a police officer," the mere possession of a weapon does not, by itself, justify the use of deadly force. Possession of a firearm in one's home is also a constitutionally protected right and is not unlawful absent some disqualifying characteristic, such as being a felon.

The third Larsen factor, "the distance separating the officers and the suspect," supports Officer Ord. Though Officer Ord allegedly fired from some 30 feet away, Mr. Huff was apparently much closer to the officer knocking on the door, which intensifies the immediacy of danger, although the exact layout the property is unknown at this time.

The fourth Larsen factor, "the manifest intentions of the suspect," weighs in favor of Mr. Huff. Under the circumstances described in the Amended Complaint, Mr. Huff's "manifest intentions" were not to harm officers but to protect himself and his family from someone who had physically confronted him earlier that day and then made threats return to the property. Mr. Huff had no reason to believe he would be contacted by police officers given his earlier cooperation. And Officer Ord and his fellow officers' failure to identify themselves and their "covert" approach to the home served to reinforce Mr. Huff's belief that he was in danger. Under this version of events, "it was no surprise" that Mr. Huff armed himself "because it was [his] constitutional right to do so."

On balance, then, [t]he Amended Complaint plausibly alleges that it was unreasonable for Officer Ord to believe that Mr. Huff posed a grave threat of danger to himself or anyone else. Officer Ord is free to raise this "fact intensive" issue again on summary judgment, after discovery.

The third Graham factor, "whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight," weighs of favor of Mr. Huff. According to Mr. Huff, he had fully cooperated with APD officers that very day, going so far as to give them his cell phone number in case they had follow up questions. When Officer Ord and the other officers arrived at Mr. Huff's house, they did not tell Mr. Huff that they were police officers or that Mr. Huff was being arrested. Mr. Huff "couldn't have been resisting an arrest if he hadn't even been told that he was being arrested."

The Magistrate Judge also reasoned that the officer wasn't entitled to have the case dismissed under qualified immunity, because, if the facts are as Mr. Huff alleges, the officer's actions were clearly unconstitutional:

The Court agrees with Mr. Huff that the Tenth Circuit's opinion in Pauly v. White put Officer Ord on notice that shooting into Mr. Huff's and hitting Mr. Huff violated the Constitution. In Pauly, Samuel Pauly was shot through the window of his home by Officer White, a state police officer who was investigating an earlier road rage incident involving Samuel's brother, Daniel Pauly. Three officers, including Officer White, arrived at the house after 11:00 p.m. in the month of October. The officers approached and surrounded the residence without activating their security lights, which "confused and terrified" the brothers, who feared they could be intruders related to Daniel's prior road rage altercation. The officers told the brothers to come outside but did not clearly identify themselves.

Samuel armed himself with a loaded handgun and gave Daniel a shotgun and ammunition. One of the brothers shouted, "We have guns," and Daniel fired two warning shots out of the back door. Samuel opened the front window and pointed a handgun at Officer White, who then fired from behind a stone wall 50 feet away.

Officer Ord argues that Pauly is distinguishable in several ways, the most important distinction being that he gave Mr. Huff a warning to put his hands up. However, as noted above, the Amended Complaint alleges that the warning came as Officer Ord started shooting. If true, this effectively means that no warning was given at all.

Officer Ord also points out that "the plaintiffs in Pauly did not flee approaching officers." But, like the Pauly brothers, Mr. Huff did not know, and had no reason to know, that the people approaching his house were law enforcement officers. Instead, both Mr. Huff and the Pauly brothers feared intruders, and Mr. Huff's fear was rational given the threats he received from Mr. Bejar-Gutierrez earlier that day.

Officer Ord also states the Pauly shooting occurred in a rural, rather than urban, setting, and the "confrontation between the brothers and officers lasted for a "significant amount of time" before Samuel Pauly was shot. Neither argument is persuasive. It appears that only 3-4 minutes had elapsed from the time that Officer White arrived at the Pauly residence and the final shot was fired. This is hardly a "significant amount of time," especially considering that the Court has nothing to compare it to here, temporally speaking; the Amended Complaint only alleges that "Officer Ord started shooting at Plaintiff approximately two seconds after seeing him standing non-threateningly in his window." Moreover, whether urban or rural, both cases involved individuals who were shot while standing back-lit in their front windows.

And the Magistrate Judge also concluded that municipal liability was possible here, because Huff "has sufficiently alleged that the City failed to train Officer Ord in the use of appropriate force when confronted with individuals exercising their Second Amendment right to keep bear arms in their homes, and that the City's final policymakers ratified Officer Ord's allegedly unconstitutional use of deadly force":

Mr. Huff alleges here that "[n]ot only does Aurora have absolutely no training on shooting into residences or encounters with homeowners exercising Second Amendments rights, but it has also almost zero training on avoiding unnecessary escalation, and deficient training on proportional constitutional use of force." If true, this demonstrates the APD's deliberate indifference to its citizens' constitutional rights, especially given how many American homeownersexercising their well-established Second Amendment rightslegally own and possess firearms. Accordingly, at this early stage, Mr. Huff's Amended Complaint plausibly states a claim against the City under a failure to train theory.

According to Mr. Huff, APD Chief Paul O'Keefe publicly supported Officer Ord after the shooting, stating that Officer Ord complied with APD policy and did nothing wrong. Mr. Huff further notes that former APD Chief Nick Metz publicly backed the officers who shot and killed Mr. Black in 2018. No officers were disciplined in either case. Mr. Huff argues that this amounts to ratification and is evidence of the APD's unconstitutional policy of shooting at homeowners lawfully exercising their Second Amendment rights.

Chief O'Keefe's failure to discipline Officer Ord after shooting Mr. Huff cannot, on its own, plausibly form the basis of municipal liability on a ratification theory. However, "[a] failure to investigate or reprimand might also cause a future violation by sending a message to officers that such behavior is tolerated." That is what Mr. Huff alleges here. He claims that after police shot and killed Mr. Black in his home, then-Chief Metz publicly stated the officers did nothing wrong and none of them were disciplined. Then, Chief O'Keefe, after "carefully review[ing] and analyz[ing] Officer Ord's decision to shoot Plaintiff," under circumstances similar to those that resulted in Mr. Black's death, likewise determined that the officer's actions were in line with APD policy. If the City's final policymakers took affirmative steps to not merely condone but also commend the allegedly excessive and unconstitutional use of deadly force by APD officers, this deliberate conduct may be enough to establish the existence of an official informal policy, whatever the formal written policy may provide.

Congratulations toClifford L. Beem (Beem & Isley, P.C.) and Stephen B. Baumgartner (Baumgartner Law, LLC), who represent Mr. Huff.

Read the original:
"Mr. Huff Alleges That the Officers Did Not Identify Themselves at Any Time Prior to The Shooting ... - Reason

Big Brother has hacked the Constitution.

It has been over nine years since Edward Snowden released the first documents exposing the extent of NSA spying to the world. Since then, the surveillance state has only gotten bigger.

I finally got around to reading Snowdens memoir, Permanent Record. I bought the book not long after it was released, but life took over and the book sat on the shelf all but forgotten until we recently moved. As I was unpacking, I thought, I really need to read this.

I was right.

The book was a poignant reminder of just how insidious and omnipotent the national surveillance state has become. And how a complete breakdown of the constitutional system supports it.

SPYING ON EVERYBODY

The Snowden revelations had a profound impact on the trajectory of my own work. In the ensuing years, surveillance became one of my primary policy areas. I was heavily involved in the Tenth Amendment Centers efforts to turn off the water to the NSA facility in Bluffdale, Utah. I spearheaded the TACs OffNow project to address warrantless surveillance more broadly. I contributed to the drafting of a local ordinance creating oversight and transparency for surveillance programs that passed in numerous cities. And I got involved in fighting a surveillance program in Lexington, Ky. That resulted in a multi-year lawsuit.

As you can imagine, in the course of this work, Ive read a great deal about surveillance. I dug deep into Snowdens documents and the reporting as he released them. Ive poured over hundreds of documents describing the ever-growing surveillance state. I even took an online course on surveillance law. So, I have a keen understanding of just how deep and powerful the national spy complex runs. But Snowdens simple description of one NSA program stunned me. It is the program that allows U.S. intelligence agencies to access information about you, me, and pretty much everybody.

The program that enables this access was called XKEYSCORE which is perhaps best understood as a search engine that lets an analyst search through all the records of your life. Imagine a kind of Google that instead of showing pages from the public internet returns results from your private email, your private chats, your private files, everything.

In documents released by Snowden, the NSA calls XKEYSCORE its widest-ranging tool used to search nearly everything a user does on the internet. In his memoir, Snowden called it the closest thing to science fiction Ive ever seen in science fact; an interface that allows you to type in pretty much anyones address, telephone number, or IP address, and then basically go through the recent history of their online activity.

In some cases, you could even play back recordings of their online sessions, so that the screen youd be looking at was their screen, whatever was on their desktop. You could read their emails, their browser history, their social media postings, everything.

Snowden goes on to describe how analysts with access to XKEYSCORE shared pictures of nudes they found on target computers.

I knew this was a thing. But Snowden put it in such stark, simple terms that I was floored by the scope of federal surveillance all over again.

Snowdens revelations shined a light on the NSAs unconstitutional overreach. It produced some outrage, but its almost certain that these surveillance programs continue today. And in all likelihood, surveillance has expanded with the advancement of technology over the ensuing years.

HACKING THE CONSTITUTION

As Snowden put it, the government has hacked the Constitution.

He describes a wholesale breakdown of the constitutional system that shredded the Fourth Amendment.

Had constitutional oversight mechanisms been functioning properly, this extremist interpretation of the Fourth Amendment effectively holding that the very act of using modern technologies is tantamount to a surrender of your privacy rights would have been rejected by Congress and the courts.

Reading Snowdens outline of the constitutional breakdown that supports the surveillance state, its glaringly clear that we cant count on the federal government to limit the power of the federal government. Every branch of the federal government shares culpability.

As Snowden points out, Congress willingly abandoned its supervisory role over the intelligence community. Meanwhile, the failure of the judicial branch was just as egregious. The FISA Court created to oversee foreign surveillance approved 99 percent of the surveillance requests brought before it, a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. But Snowden described the executive branch as the primary cause of the constitutional breach.

The presidents office, through the Justice Department, had committed the original sin of secretly issuing directives that authorized mass surveillance in the wake of 9/11. Executive overreach has only continued in the decades since, with administrations of both parties seeking to act unilaterally and establish policy directives that circumvent law policy directives that cannot be challenged, since their classification keeps them from being publicly known.

In effect, all three branches of the federal government failed deliberately and with coordination creating what Snowden called a culture of impunity.

It was time to face the fact that the IC (intelligence community) believed themselves above the law, and given how broken the process was, they were right. The IC had come to understand the rules rules of our system better than the people who had created it, and they used the knowledge to their advantage.

Theyd hacked the Constitution.

As I read Snowdens words some nine years later, I had to ask myself, What has changed.

The answer is nothing.

The Constitution remains hacked. The federal government still wont limit its own power. That means its up to us to rein in this surveillance menace. State HERE.

Tags: edward snowden, fourth-amendment, NSA, Privacy, Surveillance

Excerpt from:
Big Brother Has Hacked the Constitution - Tenth Amendment Center

A recent DEN column appeared to say that inferring a right to abortion under the United States Constitution is akin to conflating soup with cereal.

In so doing, the author seemed to implywithout using the phrasethat constitutional originalism is the correct way in which to interpret our nations foundational document. The column ended with the following paragraph:

Living constitutionalism does have practical advantagesbut practical advantages are not sufficient grounds for determining how we should interpret the text. Instead, practical advantages simply show that we can incorrectly interpret the constitution in ways that achieve (often important) social goals.

I, for one, would like to register my disagreement.

The (now, apparently, former) federal right to abortion did not just appear out of anywhere. It evolved from the landmark case of Griswold v. Connecticut, in which the Supreme Court recognized that a right to privacy lies in the penumbra (great word, right?) of the Constitutions Fourteenth Amendment.

The line of cases that derived from Griswold has protected everything from the right to marrybetween genders and racesto the right to use contraception. Originalists like Justices Alito and, head-scratchingly, Thomas would prefer that such rights were not protected by the Constitution (a document under which, originally, Thomas may have been three-fifths of a judge).

If courts did not view the Constitution as a living document, individuals would be subject to all sorts of government intrusions. For example, the Fourth Amendment only protects against warrantless searches of persons, houses, papers, and effects.

Your cell phone does not fall under any of these categories. Prior to 2014, in many states, a police officer could legally take your phone and look through its contents without a warrant. Fortunately, the Supreme Court handed down Riley v. California, which held that the Fourth Amendment protects the contents of cell phones.

Similarly, in 2018 the Court decided Carpenter v. United States, in which they held that law enforcement needs a warrant before they can use your cell phones location data to track you. Im pretty sure the founders didnt consider that when they drafted the Fourth Amendment. (Iwonder if being tracked by cops is something originalists particularly enjoy.)

Another inherent problem with originalism is pinning down just whose original intent were talking about.

Those from the 1780s who owned slaves, counted a male slave as three-fifths of a man (its right there in Article I, section 2), and denied the right to vote to women? Or maybe those from the 1860s, who ratified the Twelfth, Thirteenth, and Fourteenth Amendments, and outlawed slavery? Or those from 1971 who passed the Twenty-Sixth Amendment giving 18- year-olds the right to vote? Whats original?

The fact that the Constitution has been amended 26 timesten times by the founders, themselves!should be proof enough that its a living document and shouldnt subject to the blindered views of originalism. That the First Amendment covers our right to put these pixels out on the World Wide Webwhich is not a pressis further testament to the limitations of originalism.

Any pro-originalists who would like to respond to this column may do so by town crier or by posting a quilled vellum on the nearest sycamore tree.

Trent Jonas is an English graduate student. He can be reached at [emailprotected] or 217-581-2812.

Read more:
COLUMN: The right to abortion is not soup, or cereal - The Daily Eastern News

from the we-can-remember-where-you-were-wholesale dept

The Supreme Court may have extended constitutional protection to historical cell site location info, but thats not going to stop our public servants and the private companies that serve them from finding ways to elude the ramifications of the Carpenter decision.

Over the past couple of years, court documents and public records have exposed this law enforcement-adjacent business. (These brokers also sell data to private companies, but seem to prefer their government contracts.) Bypassing even questionable geofence warrants (ones that perform searches of areas for devices of interest, rather than targeting any specific suspect), government agencies are buying direct access to location data pulled from dozens of apps that collect this information while in use.

The EFF has obtained several documents detailing the offerings of Fog Data Science, yet another entrant in the data broker sweepstakes. Pulling information gleaned from over 100 public records requests, the EFF notes the company has (or has had) contracts with at least 18 law enforcement agencies, including some at the federal level.

Heres what the company does:

The company, Fog Data Science, has claimed inmarketing materialsthat it has billions of data points about over 250 million devices and that its data can be used to learn about where its subjects work, live, and associate. Fog sells access to this data via a web application, calledFog Reveal, that lets customers point and click to accessdetailed historiesof regular peoples lives. This panoptic surveillance apparatus is offered tostate highway patrols,local police departments, andcounty sheriffsacross the country forless than $10,000 per year.

And it appears the company (and some of its law enforcement customers) believe obtaining location data through Fog (which the company advertises as being capable of long-term tracking) does not implicate the Fourth Amendment. One of its communications with the California Highway Patrol contains this statement from a Fog representative one which states it has spoken to other law enforcement customers who believe the Carpenter decision has nothing to do with this particular location data source.

We havent done any work on Carpenter. We have had several clients view our solution through the lens of Carpenter, most recently was from a meeting I had with NJ State Police and NJ AGs Office. The attorneys in the meeting felt that since we are providing non PII [personally identifying info] data, held by third parties, Carpenter doesnt apply. As you know, in the Carpenter case, the FBI had his cell number and requested specific records pertaining to him. With our data, we have no way of linking signals back to a specific device or owner.

That legal theory can be described most charitably as untested. Maybe courts will find that layering third parties (the app sources and the data broker hawking the data) makes it too far removed from the source to make Carpenter applicable. Or maybe some courts will find its ultimately close enough to the CSLI-enabled tracking in the Carpenter case (since investigators will use this data to identify suspects and then can go back to the brokers to gather more data on the targeted device/device owner) that warrants are required.

Either way, it shows law enforcement is looking for solutions that dont require judicial oversight, and Fog Data Science is more than willing to be that solution.

And the company may claim in its Carpenter discussion it doesnt provide PII and therefore cannot perform location tracking, but it claims otherwise in its marketing for its Fog Reveal product.

Law enforcement can specify one or more devices theyve identified and a time range, and Fog Reveal will return a list of location signals associated with each device. Fogs materials describe this capability as providing a persons pattern of life, which allows authorities to identify bed downs, presumably meaning where people sleep, and other locations of interest.In other words, Fogs service allows police to track peoples movements over long periods of time.

Despite all the options the company offers (allegedly up to 15 billion location signals each day from 250 million devices a month), Fog Data seems to be having trouble holding onto its law enforcement customers.

Additionally,the records EFF reviewedshow that several of the agencies that worked with Fog have sincecanceled their subscriptions,andat least one saidthey were not sure if they ever used Fog to successfully solve a case.

Thats not to say that if Fog sucks at its job, that makes it ok. It doesnt. App users may opt into sharing data with apps, but theyre rarely aware app developers are sending this information on to data brokers, who are now basically forcing app users one step removed from the data broker to share their location data with government agencies.

The first breakdown in responsibility comes from app developers who sell this information to data brokers. The second breakdown comes from Fogs government customers, who havent been exactly open or honest about their frequent use of third-party brokers to obtain bulk data they cant legally acquire from cell service providers without a warrant.

Theres much, much more in the EFFs discussion of its findings from its public records haul, including suspected links to Venntel, another data broker with plenty of powerful government clients. And it shows packaging and analyzing app data to track people is still a growth business, one that wont see any slowdown until its either reined in by privacy legislation or courtroom precedent.

Filed Under: 4th amendment, data brokers, data sharing, law enforcementCompanies: fog data science

Original post:
Yet Another Data Broker Found To Give Massive Amounts Of Location Info To Law Enforcement - Techdirt