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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 ... |
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Letter to the editor: Fourth Amendment for Americans - Post Register
A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning.
I. The New Opinion
In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.
The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.
Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cellphones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:
[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.
The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.
II. My Analysis the Fourth Amendment Issues
I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.
This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.
A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.
This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.
If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate preapproval will help trigger the good-faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the preapproval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate preapproval of something they have no authority to preapprove to change whether the exclusionary rule applies.
Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.
I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.
II. My Analysis the Fifth Amendment Issues
On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and Touch ID.That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.
There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.
The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.
Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply,the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.
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Judge rejects warrant provision allowing compelled thumbprints to ... - Washington Post
The Pentagon is beginning to assess whether its time to split up the leadership of the National Security Agency and U.S. Cyber Command.
Right now, the two organizations share a leader Adm. Mike Rogers, who is director of the NSA and also the commander of the cyber unit.
But lawmakers have debated ending that dual-hat arrangement as the United States moves into a new era of expanded cyber warfare.
Separating the leadership of the NSA and Cyber Command would create a new vacancy for President Trump to fill.
Were looking at the issue, Pentagon spokesman Capt. Jeff Davis told The Hillon Wednesday, pointing to a newmemoissued by Defense Secretary James Mattis asking for an initial plan to better support information management and cyber operations.
Congress in December passed a bill that elevated Cyber Command to a unified combatant command. That change made Cyber Command its own war fighting unit, spinning it out from under Strategic Command.
But that legislation also pumped the breaks on splitting the NSA from Cyber Command, requiring the Pentagon to conduct a full assessment first.
Experts and former security officials regard it as inevitable that the NSA and Cyber Command will someday be separated but fear that split could be damaging if done too quickly.
Thats because Cyber Command wasnt established at NSA headquarters until 2009 and remains dependent on the agency to function.
If you split them off and give them separate bosses, you run the risk of potential personality conflicts between those two that might then cause a lessoning of the sharing and cooperation as it is occurring now, said Steve Bucci, a former Army Special Forces officer and Pentagon official who is now a visiting fellow at the conservative Heritage Foundation. Thats probably the biggest danger that I see.
Tensions already exist between NSA and Cybercom over professional overlap, and if duties and boundaries arent very clearly delineated in any split, these matters will worsen as they both fight for mission and resources, said John Schindler, a former NSA analyst and counterintelligence officer.
Alexandra Sander, a research associate at the Center for a New American Security, feared that the split could produce stove piping of intelligence information a term used to describe information that gets bottled up in agencies rather than shared in the government.
Elevating Cyber Command to its own unified command, and then if you had a split with the NSA on top of that, especially in a domain like cyber which should be integrated across the board with other functional and geographic commands and military operations if you had increased stove piping, I think that would have a negative effect on our capabilities, Sander said.
Under the law passed by Congress last year, Mattis and Joint Chiefs of Staff Chairman Gen. Joseph Dunford have to conduct a joint assessment into what would happen if the NSA and Cyber Command were separated.
They must ensure that the termination of the dual-hat arrangement will not pose risks to the military effectiveness of the United States Cyber Command that are unacceptable to the national security interests of the United States, the law states.
The military leaders are required to evaluate the dependence of Cyber Command on the NSA and how well the organizations could carry out their duties independently.
The legislation also prevents the split from happening until Cyber Command has achieved full operational capability, which isntexpectedto happen until the end of fiscal 2018.
The nonpartisan Government Accountability Office is also studying the dual-hat leadership of the two organizations; the office expects to complete that review in June, according to a spokesman.
Sen. John McCainJohn McCainHannity apologizes for sharing 'inaccurate' story about McCain McCain spokeswoman: Hannity should 'correct the record' after 'fake news' tweet CNN to host town hall featuring John McCain, Lindsey Graham MORE (R-Ariz.), who chairs the Senate Armed Services Committee, has staunchly opposed a premature separation of the two organizations. Other lawmakers have been less vocal, adopting a wait-and-see approach pending assessments by the Pentagon and GAO.
We want to make the right decision. Im undecided, Sen. Mike Rounds (R-S.D.), who chairs the newly formed Armed Services Subcommittee on Cybersecurity.
When you separate that out, you have to make sure that you have really good lines of communication, coordination and so forth. There are positives to either way, and we know right know that we have something we think is working; the question is at what point does it become so big that it needs to be changed? Rounds said.
President Obamaspokein favor of ending the dual-hat nature of the role late last year after he was reportedlypressedto do so by his Defense secretary and director of national intelligence.
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Pentagon mulling split of NSA, Cyber Command | TheHill - The Hill
Not what this might look like. Public Domain image adapted by Eric Grundhauser
A versionof this storyoriginally appearedonMuckrock.com.
A classified government document opens with an odd sequence of events relating to parapsychology has occurred within the last month and concluded with an alarming question about psychics nuking cities so that they became lost in time and space. If this sounds like a plot out of science fiction, it is - but its also a NSA memo from 1977.
The first event raised by the NSA note is a CIA report which mentioned KGB research into parapsychology. According to this, the KGB used hobbyists and non-governmental researchers to talk to western scientists. This allowed the KGB to collect useful information without putting themselves into a position to accidentally leak confidential information to westerners. According to the NSA note, this tactic yielded high grade western scientific data.
The next event described by the NSA note was what appeared to be a Russian provocation, though exactly what sort was a matter of some debate. In June 1977, an American journalist was detained in Russia for receiving a Soviet paper on parapsychology. The paper allegedly documented PSI (i.e. psychic) particles within the living cell, allegedly providing a physical basis for parapsychology.
This struck American intelligence as being a form of entrapment, though the goal was uncertain. Some thought it was an effort to provoke radio chatter which the Soviets could trace to get a better idea of the U.S.s interest and activities. Another theory was that it was simply a warning to the West to stay away from sensitive Soviet research. A third theory was that it was a double-think ploy to pretend interest in a clumsy manner to make us think that this was really just a deception to trick the West into believing there was interest when there really was none. While this last theory might sound paranoid, this is how denial and deception operate - and its something that Russian counterintelligence has long excelled at.
The section concluded with a note that there had supposedly been a successful demonstration of telekinetic power in a Soviet military sponsored research lab, and the alleged discovery of a new type of energy perhaps even more important than that of Atomic energy.
The third event was the apparent postulation by some physicists along with the famous evolutionist, Teilhard de Chardin that the universe was more of a great thought than a great machine. According to this view, the unified field on ground of reality is awareness. The note cited telekinetic experiments and postulated that awareness focusing could produce a new form of energy that moves or perhaps alters matter.
The report cited British scientists experiencing poltergeist phenomena after testing Uri Geller. Objects allegedly left the room, some of which apparently reappeared later. Supposedly, this didnt surprise unnamed scientists who found it no harder to believe that objects could disappear and reappear than it was to believe in the detected particles emerging from energy and dissolving or disappearing back into energy.
From these premises, two types of telekinetic weapons were hypothesized: a telekinetic time bomb and the equivalent of a psychic nuke that could dislodge a city in time and space.
The first involved a member of the command and control staff being kidnapped and subjected to trauma that would allow him to be suggestively programmed to develop telekinetic effects under stress at work. The theory was that when an emergency situation arose and the officer was subjected to stress, objects would begin to move and disappear independently and communications would become impossible.
The second hypothetical weapon was even more elaborate and potentially terrifying. Citing a prediction of a massive change which will alter the direction, time, space and energy-matter relationship of our world, the note wondered what would happen if a group of psychics were brought together. If ten people who were evidencing disruptive telekinetic phenomena were brought into one area, would it cause a chain reaction, causing much matter to reverse direction and sink back into a sea of energy or be displaced in time and space? The memo concluded by wondering if such an event reach a critical mass and affect an entire city.
By an interesting coincidence, the Philadelphia Experiment hoax bears some superficial resemblance to the theorized weapon in the NSA note. According various versions of the hoax, the USS Eldridge was temporarily rendered invisible or transported through time and space. The incident is even listed on NSAs webpage of paranormal topics that they dont have records on. However, there were other papers prepared on the perceived potential of weaponizing psychic abilities, some of which will be explored later. For now, you can read the NSA note here.
Read the original:
When the NSA Feared Psychics Could Make Cities Lost in Time and Space - Atlas Obscura
News 12 NBC 26 @ 6:00 / Wednesday, Feb. 22, 2017
AUGUSTA, Ga. (WRDW/WAGT) -- Augusta University's Cyber Institute is getting a big boost. A week after Governor Deal signed the Cyber Center's budget, now the school is seeing a grant from the NSA.
If it wasn't clear already Augusta University is becoming the place to be for cyber.
"So what' I'm telling you is the institute is working, what we're doing is working," Augusta University Cyber Institute Director Joanne Sexton said.
They've already expanded their reach into downtown Augusta and now they're reaching further, globally.
"We're in the right place at the right time, making things happen so we're very very fortunate," Sexton said.
Last week the NSA gave the school nearly a grant for nearly 300,000 dollars. The money could help students take a trip to see NATO's cyber security headquarters, but it's also helping add more cyber courses here.
"One thing is if you look at our name, it's the Cyber Institute, we didn't call it Cyber Security. And that was on purpose because cyber touches all of us. It's across all of the curriculum," she said.
That means cyber security, cyber terrorism, cyber in health care, and more. There's something to learn for every student.
"Federal to private to state, whatever, everyone needs this kind of work," Augusta University Cyber student Matthew Tennis said.
It's making students like Matthew ideal job candidates.
"I'm looking at either going into federal work in the intelligence industry or into private work in intelligence," he said.
"When you talk about cyber security, it's zero unemployment as long as you have the skills," Sexton said.
They're adding to the skills by adding graduate programs in intelligence analysis and security studies. And the cyber school has already doubled in size, more than 300 Augusta University students are in cyber programs. This is another way the school and the city area are virtually growing.
"Augusta University has a piece, our local community has been really supportive, but really it's about the whole team working together," she said.
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NSA gives grant to Augusta University Cyber Institute - WRDW-TV