FBI Found To Be Harvesting Surreptitious Recordings Around Two Other California Courthouses

from the bugging-in-bulk dept

Earlier this year, the FBI was catching heat for some undersupervised and overly-broad surveillance it deployed around the San Mateo courthouse in California. Hoping to catch conversations related to suspected bid-rigging during real estate auctions, the FBI scattered hidden microphones around the courthouse steps where the auctions took place.

The defendants' legal representation raised hell, claiming the surreptitious recordings violated their clients' rights. After all, the Supreme Court had declared in 1967 that closing a phone booth door was not dissimilar to holding a conversation in hushed tones, bringing a limited expectation of privacy to public places.

The FBI couldn't have felt all that confident about its secret recordings as it vowed not to enter any of the conversations it captured into evidence. That wasn't enough for the judge, however, who said he still needed to determine whether other evidence had been tainted by this questionable surveillance.

Not only was there a question about the legality under the Fourth Amendment, but there were unanswered questions about how many completely irrelevant conversations the FBI's bugs might have picked up -- like privileged discussions between lawyers and clients, both of whom are often at courthouses simultaneously.

Apparently, the FBI thought it was going to get away with this, most likely by declaring anything that happens in public to be completely stripped of privacy expectations. The surreptitious recordings in San Mateo didn't go nearly as smoothly as planned and now evidence has been produced showing the FBI targeted more than one courthouse during its bid-rigging investigation. (via Nate Cardozo)

At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse’s exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse, according to a letter sent by US Justice Department attorney Kate Patchen to Marr's attorneys on March 15. The surveillance was ongoing from March 2010 to January 2011.

And:

In Martinez, the FBI planted microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site.

Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?

Tough to say. Multiple prosecutions of suspected bid-riggers are ongoing, but the investigative groundwork is failing to pass inspection. Once again, prosecutors are promising not to use the questionable recordings in court, but they're far less likely to drop any evidence springing from those captured conversations.

In addition, defendants' lawyers in the San Mateo County case are going so far as to claim the FBI committed felonies by recording conversations, as California is a two-party consent state. They might have to settle for some suppressed evidence though, as the state law has a fairly broad "public area" exception, which would cover courthouse steps and bus stops. But that interpretation of the state's wiretap law exceptions may be subject to the government's interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.

The FBI -- through its actions -- is repeatedly demonstrating it cares little for the rules that govern its investigations and intelligence gathering. It only cares when it gets caught. This is its culture, something that traces back -- with only minimal interruption -- to its inception.

Filed Under: california, courthouses, expectation of privacy, fbi, recordings, surveillance, warrants

Court Tells Cops They Can't Open A Flip Phone Without A Warrant

from the RILEY-STRAIGHTEDGE dept

Lower courts appear to be taking the Supreme Court's Riley decision seriously -- give or take the occasional "there's no Constitution at the border" decision. If the Supreme Court says there's a warrant requirement for cell phone searches, there's a warrant requirement for cell phone searches.

The Central District of Illinois has just handed down a decision that makes it clear, in no uncertain terms, that any examination of a cell phone's contents, no matter how brief, is a search covered by Riley.

The Pekin Police Department participated in a couple of FBI-assisted controlled buys of weapons and drugs involving defendant Demontae Bell. Shortly thereafter, Bell was arrested.

Upon Bell’s arrest, a black mobile flip phone was located on his person. After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room. Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look.

Officer Sinks then powered off the phone. He handed it over to FBI Special Agent Nixon and told him about the photo he had seen. Sinks then removed the phone's battery and recorded the serial number. A little more than a week later, the FBI obtained a warrant to search the phone. Five months later, another search warrant was obtained specifically targeting date/time information related to the photo Officer Sinks saw on Bell's phone.

Seems like a cursory examination of a flip phone would be covered, but Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers (i.e., contain a concealed weapon). The government argued that opening a flip phone is not a "search" and that the photo of a gun the officer saw was in "plain view." The court disagrees, pointing out that "plain view" means "plain view" without law enforcement interaction of any sort.

The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.”

Even though the court finds Bell to have a diminished expectation of privacy in the home screen of his phone (as opposed to its contents), that's still not enough to ignore the stipulations of the Riley decision. Lock screens or homescreens may only show limited information in relation to the contents of a phone, but they can still display a wealth of information law enforcement can only obtain with a warrant.

The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, “notifications” are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here—that officers can always open a phone and look at the screen to turn the phone off without conducting a “search” at all—is inconsistent with Riley’s requirement that “unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”

Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.

The government attempted to use two exceptions provided by the Riley decision: officer safety and threat of remote destruction of evidence. Both of these arguments are dismissed just as quickly and soundly as the government's "plain view" argument. The court notes that Officer Sink's actions gave no indication he was worried about a concealed weapon or data being wiped from the phone.

In any case, if remote wiping was a concern, officers could have removed the battery without opening the phone, as was clearly demonstrated by Officer Sinks himself.

Officer Feehan testified that the policy was put in place partly because snooping software could be used to listen in on conversations when the phone is turned off but still connected to the battery, and other methods could “compromise data” on the phone. While the procedure may be outdated as applied to modern cell phones that lack removable batteries, that problem was not present here, and the video later showed Officer Sinks removing the battery. Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. That was not done in this case, and as a result, incriminating evidence was found.

The result is suppression of the evidence specific to the Constitutional violation: the picture of an AK-47 Officer Sinks saw when he opened the phone. Because warrants were obtained for a more thorough search, supported by probable cause unrelated to the photo Sinks saw, the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell's phone. While it doesn't do much for Bell, it does at least send a message to law enforcement that the Riley decision is to be respected and that cutting corners or skirting around the edges of the ruling won't be tolerated.

Filed Under: 4th amendment, flip phones, privacy, riley, supreme court, warrants

Sixth Circuit Says Cell Site Location Data Just A Business Record; No Warrants Required

from the what-Smith-v.-Maryland-has-wrought dept

To date, four appeals courts have entered opinions on whether cell site location info is covered by the Fourth Amendment. So far, only the Fourth Circuit Court of Appeals has found this to be worthy of a warrant. All others find CSLI to be covered under the Third Party Doctrine. These cases all deal with historical cell site location info, usually obtained in bulk with subpoenas. Near real-time tracking using tower pings is another issue entirely -- one that's rarer because a) obtaining rolling CSLI from a provider is a pain and b) everyone's using Stingrays now.

The Sixth Circuit Court of Appeals is the fourth appeals court to find CSLI isn't covered by the Fourth Amendment. By this point, the arguments against greater privacy protections are all too familiar.

It's Just Metadata:

Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.

It's not as precise as other tracking methods, so not really a problem:

The defendants argue that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment. In making that argument, however, the defendants elide both the distinction described above and the difference between GPS tracking and the far less precise locational information that the government obtained here.

The amount of data gathered by the FBI is impressive. Relying on orders issued by three different magistrate judges, the FBI obtained 6-7 months of location info for 16 different cellphones. The coarse location info (accurate to within a half-mile in most cases) helped place two of the suspects near the scene of a couple of robberies. The suspects' attempt to suppress the evidence gathered by these orders made it all the way up the chain to the Appeals Court -- only to find the court affirm the lower court's denial of their motion.

The court quotes from 1979's Smith v. Maryland decision -- the cornerstone of a majority of pro-Third Party Doctrine arguments -- but fails to see any difference between obtaining call routing info tied to a non-mobile landline and information wholly unrelated to any communications generated by mobile phones as they connect to towers..

The court also quotes law enforcement's favorite argument: that people should know things they "share" involuntarily with cell providers are also things they involuntarily share with the government.

[A]ny cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone “exposes” its location to the nearest cell tower and thus to the company that operates the tower.

As in other cases dismissed using this same rationale, this representation of what people should or shouldn't know isn't just inaccurate (and highly dismissive of people who don't realize this give-and-take is part of cellphone operation) but it's also disingenuous. People likely know they generate some sort of location information. What they don't assume is that law enforcement can access records of their movements without a warrant.

The opinion also name-drops the Stored Communications Act -- part of the abysmal Electronics Communication Privacy Act -- as part of the reason the court won't be extending an expectation of privacy to location data.

Some other points bear mention. One is that Congress has specifically legislated on the question before us today, and in doing so has struck the balance reflected in the Stored Communications Act. The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all, requiring that the government show “reasonable grounds” but not “probable cause” to obtain the cell-site data at issue here. See 18 U.S.C. § 2703(d). The defendants and the ACLU effectively ask us to declare that balance unconstitutional. There is considerable irony in that request. The Katz standard asks whether the defendants’ asserted expectation of privacy “is ‘one that society is prepared to recognize as reasonable[.]’” Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361). Here, one might say that society itself—in the form of its elected representatives in Congress—has already struck a balance that it thinks reasonable.

Hardly. The ECPA is a farce -- one that the government has used for years to obtain communications in bulk without a warrant.

Now, as to the lowered bar for obtaining CSLI -- a proxy version of location tracking -- historical data, especially one as "coarse" as CSLI is likely not going to be found to be worthy of Fourth Amendment protection… at least not by the courts. (Even in the Fourth Circuit decision, the concern was about the quantity of records obtained, rather than that they were obtained without a warrant.) As the opinion somewhat notes in its nod to Congress, this is an issue that needs to be addressed by legislation that more accurately reflects the privacy expectations of the public. The Stored Communications Act does not.

But courts do need to be wary of relying on Smith v. Maryland and constantly deferring to the Third Party Doctrine. Even in its coarse, historical form, CSLI reveals far more about a person's movements than law enforcement could obtain through any other warrantless method than following suspects in person. Law enforcement should not be prevented from availing themselves of technological advances, but the benefits need to be balanced against the public's expectations of privacy in records generated and collected as a result of phone usage.

Certainly, no one objects to pen registers for call routing data, but people honestly do not consider themselves to be nothing more than massive databanks the government can dip into with the most minimal of court oversight. Given the fact that many law enforcement agencies are deploying cell site simulators under the cover of pen register orders, the new normal should be an expectation of privacy in involuntarily-generated location data. Law enforcement likely finds coarse location data to be accurate enough for indictments and prosecutions and the continued denial of Fourth Amendment protection only encourages them to obtain CSLI with a court order rather than clear the higher evidentiary hurdles presented by the use of GPS devices.

Unfortunately, without Congressional action, most courts can only rely on legal precedent -- and the bulk of it considers parties generated by members of the public but collected and stored by companies to be unprotected by the Fourth Amendment. The only thing that's going to take Smith v. Maryland off the judicial table is new legislation or a Supreme Court decision declaring location data to have an expectation of privacy. The former seems almost as likely as the latter, but neither can truly be considered inevitable.

Filed Under: business records, cell site location, csli, sixth circuit, third party doctrine, warrants

Publicity Seeking Florida Sheriff Promises To Put Tim Cook In Jail For Refusing To Decrypt iPhones

from the the-crazy-sheriffs-are-acting-up-again dept

We've written quite a few times about Polk County, Florida, Sheriff Grady Judd. You may recall him from the time he arrested two teenagers because they admitted to "bullying" another teen who committed suicide. Judd also promised to arrest the parents of both girls as well, stretching an already ridiculous understanding of the law to absolute breaking points (in fact all of the charges were dropped against the girls, because, all the talk of bullying was basically not true).

Judd also has made news for falsely arresting and then publicly shaming men, saying that they're "sexual predators" and parading them in front of the press, seizing their money and possessions and then "negotiating" to only give them back some of what they seized. Oh, and then there was the time that Judd used Craigslist to help arrest prostitutes... but then blamed Craigslist for the problem.

Judd certainly has a reputation for generating press attention by saying the most outrageous things, and he's keeping that up now, by holding a press conference to announce that if Apple CEO Tim Cook doesn't decrypt an iPhone for him, Judd will arrest Cook. Yeah, good luck with that plan.

"Let me tell you, the first time we do have trouble getting into a cell phone, we're going to seek a court order from Apple and when they deny us I'm going to go lock the CEO of Apple up," Judd said in a press conference Wednesday.

Another report of the press conference said that Judd followed this up, for emphasis, with: "I'll lock the rascal up."

Yeah, you see, that's not how the law actually works. And you'd think, as Sheriff, Judd should know that. But he doesn't. Or he does and he doesn't care. Neither of which is a good sign in a sheriff.

"You cannot create a business model to go, 'we're not paying attention to the federal judge or to the state judge, because we're above the law,'" Judd said.

Of course, that's not the issue at all. It's not about ignoring a judge, it's about building a secure product, and what kinds of things a court can or cannot force a company to do to the security of its products. No one is saying they're "above the law." Except, it seems, Sheriff Grady Judd, who thinks that he can put Apple's CEO in jail based on his own desires, rather than what the law actually says.

Filed Under: encryption, free speech, grady judd, law, polk county, tim cook, warrants
Companies: apple

DOJ Officials Hint WhatsApp Likely Next In Line For The Apple Treatment

from the the-rest-of-the-dominoes-should-fall-like-a-house-of-cards...-checkmate dept

The New York Times is reporting -- based on the comments of several unnamed officials -- that WhatsApp may be headed for the same sort of courtroom dustup Apple is currently involved in.

As recently as this past week, officials said, the Justice Department was discussing how to proceed in a continuing criminal investigation in which a federal judge had approved a wiretap, but investigators were stymied by WhatsApp’s encryption.

The Justice Department and WhatsApp declined to comment. The government officials and others who discussed the dispute did so on condition of anonymity because the wiretap order and all the information associated with it were under seal. The nature of the case was not clear, except that officials said it was not a terrorism investigation. The location of the investigation was also unclear.

And, as long as we're operating on hearsay and conjecture, there's also this:

You’re getting useless data,” said Joseph DeMarco, a former federal prosecutor who now represents law enforcement agencies that filed briefs supporting the Justice Department in its fight with Apple. “The only way to make this not gibberish is if the company helps.”

“As we know from intercepted prisoner wiretaps,” he added, “criminals think that advanced encryption is great.”

You'd think that access to prisoner wiretaps would somewhat negate the need to break encryption, but maybe these mouthy inmates spend more time chatting about encryption than the allegations against them. And while I understand law enforcement's complaint that they used to be able to get all of this data with a warrant, they also used to have to run license plates by hand and perform stakeouts in person. So, it's not as though advances in technology have delivered no concurrent benefits.

Make no mistake about it: given the multitude of choices, the DOJ would rather have unfettered access to phones and all they contain. WhatsApp may have a billion or so users -- all protected by end-to-end encryption -- but if the FBI can crack open a phone, it can likely get to the content of the messages.

One of the cases indirectly cited (never by name) by James Comey during the early push against the coming darkness of Apple/Google's encryption-by-default revolved around messages recovered from a murdered 12-year-old's phone.

In the case of Amy Fletcher’s son Justin Bloxom, privacy advocates question whether phone evidence was critical to the cases. But Ms. Fletcher said: “Everything that was done was done through texts from a damn cell phone.”

“Had we not had that information, you wouldn’t realize how evil this man was,” said Ms. Fletcher, who didn’t know her son’s 2010 murder in Mansfield, La., had become part of the national debate until contacted by The Wall Street Journal.

There's no mention of WhatsApp in the Wall Street Journal's article, so it may be that all the recovered texts were of the SMS variety. But WhatsApp is supplanting SMS and the DOJ is definitely interested in the heavily-used messaging app. Last year, its requests to Facebook (which owns WhatsApp) for the contents of these messages jumped astronomically.

In the first six months of 2015, US law enforcement agencies sent Facebook 201 wiretap requests (referred to as “Title III” in the report) for 279 users or accounts. In all of 2014, on the other hand, Facebook only received 9 requests for 16 users or accounts.

Motherboard notes that this number, while still seemingly small, represents a 2133% increase. Not only that, but the total number of requests to Facebook for this data dwarfs similar requests from Google, which only saw 30 total for 2013-2014 combined.

The FBI and DOJ have yet to say much publicly about this particular case, probably feeling it's better to fight only one heavily-opposed battle at a time. But whatever the result of the Apple case, it will hardly be the end of the DOJ's efforts to force service providers to assist them in undermining their own protective efforts.

Filed Under: all writs act, doj, encryption, fbi, warrants, whatsapp
Companies: facebook, whatsapp

Warrant For FBI's Hacking Technique Makes No Mention Of Hacking Or Malware

from the just-a-big-ol'-auto-scoop,-but-delivered-secretly dept

Motherboard has obtained a copy of the warrant used by the FBI to deploy its NIT (Network Investigative Tool) to obtain information about visitors to child porn site "Playpen." This site was seized by the FBI and left running for two weeks while it gathered information.

The prosecutions tied to this investigation have been interesting, to say the least. The FBI's short run as child porn site hosts received a judicial shrug -- something courts have done in the past when confronted with disturbing government behavior in service of combating crime. These have also led to the government arguing -- and the court echoing -- that Tor users have no expectation of privacy, as sooner or later, everything comes down to an IP address.

The warrant itself is slightly redacted, but that's hardly a surprise. More surprising is the fact that it has been released at all, as the FBI usually argues for the sealing of documents related to its investigations, especially in cases where law enforcement tech and methods are discussed.

As far as the details contained within, most of what's known about the FBI's NIT has already been discussed. As Motherboard's Joseph Cox points out, there are a few interesting aspects to the warrant request. For one, it makes it clear the FBI will be running a child porn site for the duration of the "search."

“While the TARGET WEBSITE operates at a government facility, such request data associated with a user's actions on the TARGET WEBSITE will be collected,” the affidavit, signed by Douglas Macfarlane, an FBI special agent, reads.

While the document claims the FBI has no other way to ascertain the IP addresses and locations of users connecting to the website, it also goes light on the details of what it plans to do. The NIT is discussed in terms of what it's capable of gathering, but goes very, very light on technical details. Nowhere in the document does the FBI refer to its NIT in terms more applicable to its function, like "malware," "spyware" or "hacking." The FBI describes its NIT this way:

In the normal course of operation, websites send content to visitors. A user's computer downloads that content and uses it to display web pages on the user's computer. Under the NIT authorized by this warrant, the TARGET WEBSITE, which will be located in Newington, Virginia, in the Eastern District of Virginia, would augment that content with additional computer instructions. When a user's computer successfully downloads those instructions from the TARGET WEB SITE..., the instructions, which comprise the NIT, are designed to cause the user's "activating" computer to transmit certain information to a computer controlled by or known to the government. That information is described with particularity on the warrant (in Attachment B of this affidavit), and the warrant authorizes obtaining no other information. The NIT will not deny the user of the "activating" computer access to any data or functionality of the user's computer.

This lack of details could be problematic.

Critics are worried that the language of NIT applications is too vague for judges to grasp what exactly it is they are authorizing; the words "malware" or "hacking" are never used, for example. (Magistrate Judge Theresa C. Buchanan, who signed off on the NIT, has repeatedly declined to answer questions from Motherboard.) The NIT was used to access computers in the US, Greece, Chile, and likely elsewhere.

Speaking of foreign nations, the FBI apparently had some outside assistance in this case.

In December of 2014, a foreign law enforcement agency advised the FBI that it suspected IP address 192.198.81.106 , which is a US-based IP address, to be associated with the TARGET WEBSITE. A publicly available website provided information that the IP Address 192.198.81.106 was owned by [REDACTED] a server hosting company headquartered at [REDACTED] Through further investigation, FBI verified that the TARGET WEBSITE was hosted from the previously referenced IP address. [...] Further investigation has identified a resident of Naples, FL, as the suspected administrator of the TARGET WEBSITE, who has administrative control over the computer server in Lenoir, NC, that hosts the TARGET WEBSITE.

The fact that documents from sealed cases related to the FBI's Playpen investigation are being released publicly shows that even opposed forces can sometimes arrive at the same plan of actions, even if their motivations are completely different.

In Washington, the lawyer for a defendant captured with the assistance of the FBI's NIT is hoping to put the FBI's apparent overreach on display by requesting the unsealing of documents. The FBI, on the other hand, isn't putting up much of a fight to keep these sealed. The affidavit in this related case contains graphic descriptions of child porn images found on the site. People who generally don't believe the ends justifies the means often make exceptions for more heinous criminal activity like this. The public outing of sealed docs could persuade fence-sitters to come down on the side of the FBI, even if the agency's use of NITs is hardly limited to cases involving crime the public overwhelmingly finds completely repugnant.

Filed Under: darknet, doj, fbi, hacking, malware, network investigative tool, nit, playpen, tor, transparency, warrants

With Arrival Of New DA, The DEA's 'Likely Illegal' Wiretap Warrants More Legal, Less Prolific

from the the-rubber-stamp-is-gone-and-the-inkpad-has-run-dry dept

The DEA's South California wiretap kingdom is crumbling. Run almost solely through a single, very obliging judge and approved by an assortment of DA's office underlings, the wiretap warrants were so toxic the DOJ wouldn't touch them. Local prosecutors would, however, but now they're finding their cases falling apart.

The likely illegal wiretap program skirted guidelines meant to prevent exactly this sort of abuse. In response to the FBI's abuse of wiretaps to surveil civil rights leaders (including Martin Luther King Jr.) during the 1960s, the DOJ stated warrants had to be signed off by the top prosecutor in the area they were deployed: in this case, Riverside District Attorney Paul Zellerbach. Zellerbach delegated when he shouldn't have, compounding other problems, like the DEA's use of a county judge for warrant requests, rather than a federal judge.

Brad Heath and Brett Kelman have been relentless in pursuing this story. Two more recent developments seem to indicate Riverside, California, will no longer be the DEA's playground. To start with, another of the DEA's cases is being challenged… in Kentucky.

The Kentucky case is the first to challenge that surveillance in federal court, and could have implications for prosecutions across the United States in which police relied on Riverside County eavesdropping. The case may also force the Justice Department to take a position on whether the wiretaps were lawful, something it has not publicly done.

The new court filing challenges Riverside wiretaps on two fronts. First, it argues that Riverside prosecutors used wiretaps as an “initial step” in investigations, even though taps are supposed to be reserved as a tool of last resort. Second, the motion says that former District Attorney Paul Zellerbach, who led the Riverside DA’s office during an unprecedented rise in wiretaps, did not review each wiretap application personally, which was required by federal law.

In addition, the DEA's home field advantage is no longer. Zellerbach is no longer in office and his replacement -- Mike Hestrin -- is following through with his promise of cleaning this mess up. The DEA hit peak wiretap during Zellerbach's tenure. It's now experiencing a swift and dramatic decline.

Officials approved another 607 wiretaps in 2015, according to the figures released by the district attorney’s office. Most were approved in the first half of the year, before Hestrin said he installed a “stricter” standard that required every new wiretap application to have a “strong investigatory nexus” to Riverside County.

Taps have dwindled since then. So far this year, Hestrin has approved only 14. In the first two months of last year, his office approved 126.

There are still issues left to be addressed though. The Desert Sun, which has worked in conjunction with USA Today's Heath and Kelman to cover this story, notes that the DA's office has rejected FOIA requests for wiretap approval policies under Zellerbach and Hestrin. On top of that, oversight is still very limited. Wiretap warrants are routinely sealed and information about these warrants being withheld from some defendants.

But the good news is the DEA's wiretap pipeline -- DA Zellerbach and county judge Helios Hernandez (who signed off on 20 times as many warrants as his San Bernardino county counterpart) -- has been broken by the arrival of DA Hestrin. Zellerbach's "hands off" approach to wiretap warrant approvals means more than 700 warrants his office issued since 2013 could have their legality challenged in court.

Filed Under: 4th amendment, california, dea, mike hestrin, paul zellerbach, riverside county, warrantless wiretaps, warrants

Don't Believe The Hype: No, Apple HAS NOT Done What The FBI Now Wants '70 Times' Before

from the propaganda dept

In the past couple of days, you may have heard various claims regarding the whole Apple encryption backdoor debate saying things like "but Apple has unlocked iPhones 70 times before." I've seen a bunch of people tweeting and linking to such claims, and it keeps coming up. And it's bullshit. The 70 times that Apple helped law enforcement before were totally different situations involving unencrypted information where Apple had the ability to extract from the phone because it wasn't encrypted. That's kind of the whole point here. Yes, of course, Apple can and does provide access to information that it can easily access. In fact, in this very case the FBI submitted a warrant and was able to get all of the information from the unencrypted aspect of Farook Syed's iCloud account: That's very, very, very, very, very, very different from arguing that because the company was willing to hand over that unencrypted data that Apple had full access to, that it's the same kind of thing as building a hacking tool that undermines the foundations of encryption -- and would set a precedent basically allowing a judge to order any company to backdoor and destroy their encryption.

And yet, this message is gaining steam. It's a talking point that first was given life by the feds last October when they tossed out that "70 times in the past" number as part of the earlier All Writs Act case we'd been covering. But unfortunately it picked up steam yesterday with a Shane Harris piece at the Daily Beast yesterday, claiming misleadingly that "a 2015 court case shows that the tech giant has been willing to play ball with the government before -- and is only stopping now because it might 'tarnish the Apple brand.'" That's hellishly misleading, which is too bad because Harris is so often good on these issues.

Apple, and plenty of other companies have always been willing to "play ball" when there's a legitimate warrant along with actual information they can provide. That's because they have to. But this is different. This case involves information that Apple does not have and which the FBI asked for, and the judge has now granted -- an order for Apple to proactively figure out a way to hack around the security protections on the device, allowing the FBI to then look to brute force the (probably) weak passcode on the phone. In other words, the concept and the principle are very, very different than those "70 previous times." And it's not just about "tarnishing Apple's brand," though I'm sure that's at least a part of it. As Julian Sanchez rightly notes at Time, there's so much more at stake here, including opening up the possibility that judges can order any tech company to help the government hack into their systems.

Once again: handing over info you have full access to is not even remotely close to forcing a company to build hacking tools for the government to undermine their own security.

But, of course, that hasn't stopped many in the press from taking this "but Apple unlocked 70 iPhones in the past" talking point and running with it. It's all over the place, including many sources that should know better.

Don't let the propaganda fool you. This case is very, very different and there are much bigger issues at stake.

Filed Under: all writs act, encryption, fbi, security, warrants
Companies: apple

Wisconsin Supreme Court Grants Law Enforcement Broader Justifications For Warrantless Searches

from the hindsight-means-nothing,-says-state-body-that-can-ONLY-examine-things-in-hindsig dept

The Wisconsin Supreme Court has just made it easier for the state's law enforcement officers to search residents' houses without a warrant. A 4-3 decision overturned an appeals court opinion finding the opposite. In doing so, the Supreme Court expanded the reach of the state's "community caretaker function" beyond simply allowing the retention of evidence discovered in "plain sight" to that found behind locked doors as well.

We conclude that the officers in this case reasonably exercised a bona fide community caretaker function when they searched Matalonis's home. The officers therefore were not required to obtain a warrant prior to conducting the search in question, and the evidence of marijuana production they obtained should not be suppressed. Because the search was lawful under the community caretaker doctrine, we need not determine whether the search was also justified as a protective sweep.

The evidence of a marijuana grow operation was behind a locked door. Although Matalonis invited them into the house, he did not agree to a search of this locked room. Other paraphernalia in the house led officers to believe there might be illegal substances on the premises, but uncovered nothing else during the cursory search of the house to determine whether any more victims/perpetrators of the violent act that brought them there in the first place might be on the premises.

According to the majority opinion, the blood found on the locked door justified the warrantless search of the room. As it states, the search may not have been wholly justified in hindsight, but the court isn't here to second-guess officers' actions in circumstances such as these.

It is obvious to all, in hindsight, that Matalonis's home did not in fact contain a "member of the public . . . in need of assistance." But that is not the question before us today. Instead, we must decide whether, "under the circumstances as they existed at the time of the police conduct, [the officers were] engaged in a bona fide community caretaker function." Therefore, we are concerned with the extent of the officers' knowledge at the time they conducted the search, not after.

Hindsight is how the Fourth Amendment is served. If the court refuses to second-guess officers' actions, then there's no reason for it to preside over cases like this at all. It may as well dismiss motions to suppress or civil rights lawsuits out of hand if it's not interested in applying hindsight. Courts are avenues of redress, something that only exists after the fact. With this rationale, the court limits itself to accepting whatever justification officers give for their actions and will apparently base other decisions on the subjective statements of law enforcement rather than the more objective stance the court is supposed to be taking.

As the dissent points out, the discoveries made during the caretaking sweep may have generated probable cause for a search, but probable cause is what officers are supposed to take to judges to obtain warrants -- not to excuse warrantless searches after officers told Matalonis to unlock the door or they'd "kick it down."

On the second floor, in plain view, a police officer did see marijuana and a variety of drug paraphernalia——pipes and other smoking utensils, a small silver grinder, and a ceramic water bong. The officer also encountered a locked door with a few droplets of blood scattered on the door. The officer smelled a strong odor of marijuana coming through the door and heard a fan running behind the door.

The date was January 15; the time was after 3:00 a.m. A reasonable person could infer that a fan is not normally operating at such a date and time merely for purposes of comfortable climate control.

In my view, the officer's observations on the second floor, followed by Charles's refusal to give consent to open the locked door, provided ample probable cause for a search warrant for the locked room to search for drugs. Conversely, the officers would have been hard pressed to make a case for a search warrant to find a body in some condition behind the door. Officers had already accounted for other known occupants of the house, including a basement tenant.

The majority decided not to discuss the other justification given for the warrantless search of the locked room: that it was a protective sweep. This works out better for Wisconsin law enforcement because the officers' actions undercut their stated "need" to perform a protective sweep. Matalonis was questioned by officers and asked to sit in the living room until the sweep had been performed. But despite the allegations of violence, the presence of blood in many open areas of the house and Matalonis' inconsistent statements on the night's event and the number of people present in the house, officers never once placed him in cuffs or otherwise restrained him to ensure their safety.

At any point after the caretaking function had been concluded, officers could have taken Matalonis into custody and acquired a search warrant for the locked room. They had evidence an act of violence had occurred on the premises as well as the drug paraphernalia. But officers decided they had a right to search the room then and there. Instead of the suppression of evidence the appeals court recommended, Wisconsin citizens can now be subjected to bogus warrantless searches under the "community caretaking" function. As long as the function is justified, so apparently is any search of any area that can't be immediately viewed during a sweep of a residence. What should have resulted in a search warrant instead presented itself as a threat to "kick a door down," and the state's Supreme Court says that sort of thing is perfectly OK.

Filed Under: 4th amendment, supreme court, warrantless searches, warrants, wisconsin

NYPD Has Deployed Stingrays Over 1,000 Times Without Warrants

from the no-surprises-here-(other-than-the-document-release-itself) dept

The New York ACLU has obtained documents from the NYPD -- a feat on par with prying paperwork away from the FBI, CIA or NSA -- showing the department has been deploying Stingrays without a warrant since 2008. This puts them on the same timeline (and with the same lack of legal paperwork) as the Baltimore Police Department, although the BPD was much more proactive with their deployments: over 4,300 since 2008, as compared to the NYPD's relatively restrained 1,016.

Not only does the NYPD deploy Stingrays without warrants, it apparently does so without any official guidance at all. (The better to keep paper trails from developing, I would guess. This also allows it to choose its own scapegoat when the political hammer falls, rather than there being a bunch of inculpatory signatures on internal policies/permission slips.)

The NYPD also disclosed that it has no written policy for the use of Stingrays but that, except in emergencies, its practice is to obtain a “pen register order” – a court order that is not as protective of privacy as a warrant – prior to using the device.

The use of pen register orders suggests major police departments all had the same idea when they got their hands on the repurposed military technology: it's a phone, so why not pen register orders? Well, to begin with, Stingrays capture a whole lot more than a pen register would -- like everyone connecting to the faux cell tower, rather than just the target. Pen registers also can't be used to track someone in motion. All they can do (in the historical sense) is generate phone records of calls made and received. Utilizing this paperwork lowers the amount of proof needed to obtain permission as well as obscures the technology behind the collection of "phone records."

That the NYPD is using Stingrays is no surprise, considering how many other law enforcement agencies in the country use them. The NYPD has always considered itself to be an extension of federal intelligence services and a bit of a standing military force, so it follows that it would be ahead of the curve when it comes to both surveillance equipment and repurposed military gear.

What is surprising is that these documents are in the ACLU's hands at all. The NYPD is notoriously resistant to FOIL (Freedom of Information Law) requests, having gone so far as to deny requesters copies of its FOIL response procedures.

And, as usual, the Stingrays went into use without any sort of public comment period or any information being passed on to affected citizens (which would be anyone with a cell phone) by the city representatives who signed off on the purchase orders. No doubt these were pushed through with maximum secrecy while NYPD officials chanted their "terrorism" mantra and spritzed the passing documents with holy water redactions.

"Terrorism" is the most frequently cited reason when law enforcement agencies seek to obtain military technology -- which Stingrays are -- but the documents obtained show no deployments for terrorist-related activity. Instead, they've been used to tackle all sorts of "normal" crime, from the violent (rape, homicide, armed robbery) to more mundance illegal activities -- like bail jumping, fraud, drug possession, suicide [?] and the location of material witnesses. For the most part, the NYPD's Stingrays seem to be effective in tracking people/phones down, but that's hardly any excuse for brushing past the Fourth Amendment with a minimum of paperwork or internal accountability.

Filed Under: 4th amendment, imsi catcher, nypd, stingray, warrants