Canadian Law Enforcement Agency Dropping Cases Rather Than Deal With New Warrant Requirements For ISP Subscriber Info

from the if-at-first-you-don't-succeed,-quit dept

A funny thing happens when courts start requiring more information from law enforcement: law enforcers suddenly seem less interested in zealously enforcing the law.

Back in June of this year, Canada's Supreme Court delivered its decision in R. v. Spencer, which brought law enforcement's warrantless access of ISP subscriber info to an end.

In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

The effects of this ruling are beginning to be felt. Michael Geist points to a Winnipeg Free Press article that details the halcyon days of the Royal Canadian Mounted Police's warrantless access.

Prior to the court decision, the RCMP and border agency estimate, it took about five minutes to complete the less than one page of documentation needed to ask for subscriber information, and the company usually turned it over immediately or within one day.

Five minutes! Amazing. And disturbing. A 5-minute process indicates no one involved made even the slightest effort to prevent abuse of the process. The court's decision has dialed back that pace considerably. The RCMP is now complaining that it takes "10 hours" to fill out the 10-20 pages required to obtain subscriber info. It's also unhappy with the turnaround time, which went from nearly immediate to "up to 30 days."

In response, the RCMP has done what other law enforcement agencies have done when encountering a bit of friction: given up.

"Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basic subscriber information)," the memo says.

The RCMP also points out that the 30-day response period will sometimes outlast the 30-day IP log retention period, resulting in information being destroyed before the agency can access it. It also notes that it's facing a bit of backlash in the wake of the Supreme Court's decision.

Banks, hotels, and car rental companies are reviewing the Supreme Court decision and "a few have signalled less voluntary co-operation" in future.

Yeah, that's a shame. But it seems to be a feeling that's becoming increasingly common as the pendulum swings back towards protecting the rights of the public. Several companies have spent years being forced to play the submissive part in this involuntary relationship, handing out an endless number of "how highs" in response to the government's "jump!" orders. "Less voluntary" is what the future holds for intelligence agencies and law enforcement alike.

If the RCMP is dropping cases because it doesn't have enough put together to "fulfill the requirements" of its warrant paperwork, then it really doesn't have enough of a case put together to be demanding that third parties turn over information related to the suspect. It's that simple. The cases it has dropped obviously aren't strong enough to justify attempts to gather more information. The warrant requirement is going to turn the RCMP into a better law enforcement agency -- one that doesn't pursue certain investigations just because they're easy. This forces the RCMP to better evaluate its caseload and cut loose those that suffer from a dearth of information. The RCMP may now be counting up its theoretical losses (the cases that it's dropping), but Canadian citizens are better protected against ad hoc bulk surveillance and law enforcement fishing expeditions.

Filed Under: canada, evidence, imsi catcher, law enforcement, privacy, stingray, warrants

Ireland Asks EU To Support Microsoft In Legal Battle Involving Competing Jurisdictions

from the this-could-get-messy dept

Techdirt has been following the extremely important case where a US magistrate judge ruled that Microsoft had to comply with a warrant asking for data held on servers in Dublin. Clearly, if this stands, it will have big implications for cloud computing -- and a massive negative impact on US businesses trying to sell such services around the world. For that reason, Microsoft has been fighting back in the courts, so far unsuccessfully.

Now there's been an interesting development on the other side of the Atlantic, where Ireland's Minister for European Affairs and Data Protection has written to the European Commission formally requesting it to make a submission:

A case involving Microsoft that is currently before the US courts has raised important issues between the respective legal regimes in the European Union and the United States, particularly in relation to the protection of personal data.

The case in question has given rise to a degree of legal uncertainty and the outcome could have potentially serious implications for data protection in the EU.

By seeking direct access to data held in the EU through the US judicial system, existing legal mechanisms for mutual assistance between jurisdictions may be being effectively bypassed. There are fundamental issues at stake here as regards the protection of personal data that is held within the European Union.

"Existing legal mechanisms" presumably means the Mutual Legal Assistance Treaty that would allow the US to request the data it wants from the Irish government. The "fundamental issues at stake" refer to the fact that by trying to take a more direct route, without involving the Irish government, the US authorities are likely to fall foul of European data protection laws, which do not allow personal data to be handed over in this way. The Irish minister is clearly asking the European Commission to support Microsoft in its fight against the US court's decision:

I urge the Commission to consider the arguments that Microsoft are making with respect to this case.

That's an indication that the Irish government -- and doubtless those elsewhere in the EU -- really want Microsoft to win. If it doesn't, there is going to be a clash of jurisdictions that could get very messy as both US and EU insist that their laws must take precedence, with serious consequences if they don't....

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Filed Under: doj, ireland, jurisdictions, subpoenas, warrants
Companies: microsoft

Feds Put Fake Cell Towers On Planes, Spied On Tons Of Innocent Americans

from the because-surveillance-is-fun,-yo dept

The Wall Street Journal broke the news that the DOJ has been spying on tons of innocent Americans by putting fake mobile phone towers on airplanes and scooping up all sorts of data from people who thought they were connecting to regular mobile phone towers.

The U.S. Marshals Service program, which became fully functional around 2007, operates Cessna aircraft from at least five metropolitan-area airports, with a flying range covering most of the U.S. population, according to people familiar with the program.

Planes are equipped with devices—some known as “dirtboxes” to law-enforcement officials because of the initials of the Boeing Co. unit that produces them—which mimic cell towers of large telecommunications firms and trick cellphones into reporting their unique registration information.

The technology in the two-foot-square device enables investigators to scoop data from tens of thousands of cellphones in a single flight, collecting their identifying information and general location, these people said.

We have, of course, reported for a while now on so-called Stingray devices, which mimic mobile phone towers on the ground (and have noted that Stingray is just one brand of a few such devices, known as IMSI catchers), but putting them on special planes and flying them around would allow law enforcement agencies to get a lot more information on a lot more people. Given that law enforcement efforts like this are supposed to be narrowly targeted towards those actually suspected of breaking the law, this seems like a massive 4th Amendment abuse, creating mass surveillance programs for law enforcement with little real oversight or control.

While it may not be entirely surprising that this is happening, it is yet another surveillance program being done with zero public transparency, zero public debate and zero public input. That's a huge concern as we've seen time and time again how such programs get abused.

And, while the WSJ doesn't come out and say it, it certainly sounds like it got this info from a concerned whistleblower inside the US Marshals Service:

Within the Marshals Service, some have questioned the legality of such operations and the internal safeguards, these people said. They say scooping up of large volumes of information, even for a short period, may not be properly understood by judges who approve requests for the government to locate a suspect’s phone.

Some within the agency also question whether people scanning cellphone signals are doing enough to minimize intrusions into the phone system of other citizens, and if there are effective procedures in place to safeguard the handling of that data.

As such programs keep getting disclosed, think of how many such other programs there are that we just don't know about?

Filed Under: 4th amendment, doj, imsi catcher, planes, stingray, surveillance, us marshals, warrants

FBI's Use Of 'Sneak And Peek' Warrants Still Steadily Increasing, Still Has Nearly Nothing To Do With Fighting Terrorism

from the more-drug-warring dept

Another tool supposedly "crucial" to the War on Terror is just another lowly footsoldier in the War on Drugs. Some long-delayed reports on Section 213 "sneak and peek" warrants have finally been released by the US government, providing more detail on the constantly-expanding use of delayed-notification warrants by the FBI.

While Section 213 didn't originate with the regrettable PATRIOT Act, it did coattail ride the government-expanding legislation into legitimacy. Robert Mueller, director of the FBI at the time, made this statement in 2005 defending the ongoing use of these warrants.

While not scheduled to sunset, the USA Patriot Act's delayed notice provision, Section 213, has been the subject of criticism and various legislative proposals. The FBI believes that Section 213 is an invaluable tool in the war on terror and our efforts to combat serious criminal conduct. It is important to note that delayed notice warrants were not created by the USA Patriot Act. Rather, the Act simply codified a common law practice recognized by courts across the country and created a uniform nationwide standard for the issuance of those warrants…

Delayed notice search warrants provide a crucial option to law enforcement and can only be issued if a federal judge finds that one of five tailored circumstances exists. The FBI has requested this authority in several cases. In most instances, the FBI seeks delayed notice when contemporaneous notice would reasonably be expected to cause serious jeopardy to an ongoing investigation.

Legislators expressed concern about these warrants during a 2005 Senate hearing, pointing out the significant increase in the number issued.

Apparently, the department sought and received the authority to delay notice 108 times between April 2003 and January 2005, a period of approximately 22 months. By contrast, it sought and received this authority 47 times between November 2001, when the PATRIOT Act was enacted, and April 2003, a period of about 17 months. The 5-month difference in timeframe aside, these numbers clearly reveal a substantial increase in use.

If they could have peered a little further into the future, they probably wouldn't have bothered noting this slight increase. 2010's report noted nearly 4,000 requests for delayed notification. A year later, the number had lept to 6,775. Two years later and the number has nearly doubled -- 11,129.

From 47 times in 17 months to over 30 times a day over the last ten years. This is another limited-use, for-emergency-use-only tool that has been converted into a workhouse by law enforcement. To keep it from being killed off, FBI Director Robert Mueller cited terrorism and investigations being placed in "serious jeopardy," but in reality, it's still all about drugs, drugs and more drugs.

This was the ratio in 2010.


It hasn't gotten any better.

Out of the 3,970 total requests from October 1, 2009 to September 30, 2010, 3,034 were for narcotics cases and only 37 for terrorism cases (about .9%). Since then, the numbers get worse. The 2011 report reveals a total of 6,775 requests. 5,093 were used for drugs, while only 31 (or .5%) were used for terrorism cases. The 2012 report follows a similar pattern: Only .6%, or 58 requests, dealt with terrorism cases. The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism.

Additionally, only 11 requests were rejected and the average delay was over 60 days. The longest recorded in 2013 was well over a year -- 546 days.

This was supposed to be an option of last resort -- something deployed when it was too dangerous to do otherwise. But it never was anything more than a way to skirt the Fourth Amendment for maximum FBI efficiency. Even in its early days -- not far removed from the horror of the 9/11 attacks -- the FBI was using delayed notice warrants to conduct routine investigations.

It would astound most Americans that government agents could enter their homes while they are asleep or their places of business while they are away and carry out a secret search or seizure and not tell them until weeks or months later. It would especially astound them that this authority is available for all Federal offenses, ranging from weapons of mass destruction investigations to student loan cases. That is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice Department has admitted that it has used Section 213 sneak and peek authority in nonviolent cases having nothing to do with terrorism. These include, according to the Justice Department's October 24, 2003 letter to Senator Stevens, an investigation of judicial corruption, where agents carried out a sneak and peek search of a judge's chambers, a fraudulent checks case, and a health care fraud investigation, which involved a sneak and peek of a home nursing care business.

So, the DOJ requests an inch, takes several miles, and searches citizens' homes and places of business several thousand times a year -- all without feeling compelled to inform its targets. The justifications the FBI offers (and has offered for years) are false. Are we actually supposed to believe the danger posed to investigating officers has increased at the same rate as the deployment of "sneak and peek" warrants? The defenders of this program can't expect anyone to believe anything that ridiculous. And yet, it continues -- not just unabated, but with steady increases.

Section 213 is just another way for the DOJ to keep the pesky public from impeding its forward progress. Anything hinting of rights or civil liberties is generally viewed as a loophole for criminals to exploit. This is more of the same. It's easier to execute search warrants when you don't have to bother serving them first.

Filed Under: 4th amendment, crime, drugs, fbi, privacy, sneak and peek, terrorism, warrants

UK's GCHQ Can Get Warrantless Access To Bulk NSA Data

from the keeping-your-hands-clean dept

Last week, we learned that the GCHQ certainly isn't engaged in mass surveillance -- provided you redefine the meaning of "mass" and "surveillance" in unconventional ways. Now we discover that maybe it doesn't really need to, since it can just ask the NSA and other secret services for access to their raw data without even needing a warrant, as a group of human rights organizations have discovered:

Details of previously unknown internal policies, which GCHQ was forced to reveal during legal proceedings challenging their surveillance practices in the wake of the Snowden revelations, reveal that intelligence agencies can gain access to bulk data collected from US cables or through US corporate partnerships without having to obtain a warrant from the [UK's] Secretary of State. This position seems to conflict with reassurances by the Intelligence Services Committee in July 2013 that whenever GCHQ seeks information from the US a warrant is in place.

The "arrangements", as they are called by Government, also suggest that intercept material received from foreign intelligence agencies is not subject to the already weak safeguards that are applied to communications that are intercepted by the UK's Tempora programme. On the face of the descriptions provided to the claimants, the British intelligence agencies can trawl through foreign intelligence material without meaningful restrictions and can keep such material, which includes both communications content and metadata, for up to two years.

Once again, we see evidence that intelligence agencies are happy to do the dirty work for each other so that they can all claim to have clean hands -- just as the outgoing head of the GCHQ claimed when he said that people there would "walk out the door" rather than be involved in anything so sordid as mass surveillance. It also shows how even the weak safeguards and ineffectual oversight of spy agencies can be circumvented by this kind of mutual help, something pointed out by the organizations behind the latest information:

The disclosed "arrangements" bring into sharp relief the minimal safeguards and weak restrictions on raw intelligence sharing with foreign governments, including between the UK and the United States. The fact that GCHQ can request and receive large quantities of "unanalysed" raw bulk data from foreign intelligence agencies without a warrant in place, simply because it would "not be technically feasible" to obtain it in the UK, shows the inadequacies in [the UK's Regulation of Investigatory Powers Act 2000] to deal with intelligence agency co-operation. Under these "arrangements", there is a clear risk that agencies can sidestep British legal restrictions to obtain access to vast amounts of data.

There is a minor silver lining to these latest revelations that the situation in the UK is even worse than previously believed. It's the fact that a legal action against GCHQ's mass surveillance has, unexpectedly, forced the UK government to admit to even more unsavory practices. Here's how that came about:

Descriptions of the policies were disclosed to the parties after a secret hearing at the Investigatory Powers Tribunal, which is currently considering a challenge to GCHQ's surveillance practices that has been brought by human rights organisations including Privacy International, Liberty and Amnesty International. A public hearing of the case was held in July, but these “arrangements" were revealed to the Tribunal in a closed hearing that the claimants were barred from attending. Some details about the policies are now disclosed in order for the claimants to provide comment.

That's a useful reminder that no matter how hopeless these actions might seem, they are not only pretty much the only avenue open to human rights organizations who wish to challenge mass surveillance by governments, but they sometimes yield valuable new information that bolsters the case for greater oversight and tighter regulation of spy agencies.

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Filed Under: bulk surveillance, gchq, nsa, privacy, surveillance, warrants

California Governor Shoots Down Warrant Requirement For Law Enforcement Drone Usage

from the paperless-surveillance dept

California governor Jerry Brown has just vetoed a bill that would add a warrant requirement for drone surveillance. In Brown's opinion, the demands of the bill surpassed what the Fourth Amendment actually requires.

"This bill prohibits law enforcement from using a drone without obtaining a search warrant, except in limited circumstances," the governor said in his veto message (PDF). "There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution."

Rather than err on the side of the public's interests, Brown has come down on the side of law enforcement. Currently, only 10 states require warrants for law enforcement drone usage. California won't be joining them.

Brown does have a point about public spaces and the Fourth Amendment. There's little practical difference between drone surveillance and other warrantless surveillance techniques that involve public areas. Police helicopters routinely fly over large cities. Why shouldn't drones? Just because drones can fly longer, follow closer (and more surreptitiously) and provide a more targeted view doesn't necessarily turn its surveillance into a violation of the Fourth Amendment. Just as taking pictures of a single person's license plate is not a violation of privacy, neither are the millions collected every day by automatic license plate readers.

The solution here isn't necessarily warrant requirements, but it's worth a shot when there are so few options. Even though some states have managed to push through similar legislation, they're unlikely to survive legal challenges -- at least not in terms of the Fourth Amendment (mileage varies considerably with state constitutions). This is part of a push for more accountability from law enforcement, whose capabilities have advanced at a rate far surpassing its effort to keep the public informed of its activities.

California law enforcement agencies, more often than not, are forced to relinquish information on newly-acquired surveillance technology. There's rarely an attempt made to consider the public's concerns before deploying. Drone purchases and deployments almost always lead policy-making by weeks or months.

There needs to be more done to address privacy concerns than simply deferring to the "outside is public" argument. Government figures like California Senator Diane Feinstein and Justice Sotomayor complain about drone usage by the public, claiming they would hate to have a privately-operated drone flying "right outside their windows." But they defer to law enforcement discretion, somehow forgetting that whatever a privately-owned drone can do, a law enforcement drone can do -- including hovering outside a window. (Law enforcement officers suffer from similar rhetorical blind spots...)

If private drones are going to be subject to several rules, so should law enforcement drones. There's no reason to assume law enforcement officers are better pilots or more inclined to avoid using the drones to invade someone's privacy. What a warrant requirement does is add a small layer of accountability: who is using it, where they're using it and why. This generates a paper trail that will help deter abuse. The Fourth Amendment may cover expectations of privacy and prevent unreasonable searches, but there's nothing similar demanding transparency and accountability from government agencies.

At this point, drone usage by law enforcement agencies isn't an "if." It's a "when." The public's rights are being trimmed around the edges by law enforcement tech and that's what's prompting this sort of legislative pushback. The legal reasoning may be flawed but the underlying motivation isn't: police powers continue to expand while the public's rights continue to erode. There's an urge to reset this balance and it will sometimes manifest itself as unsound legal arguments.

A good faith effort would be the embrace of warrants for drone usage. Anything that requires warrants also contains several exceptions to be used in emergency situations. This proposed law was no different. If time and/or public safety is a concern, the drones can be immediately deployed. Anything else can wait for a judge's signature. But this is the sort of proactive move very few will make. The city of Seattle tossed out its drones because of public concern, but it's a singular exception. That the drones ended up in a state where the governor has vetoed an attempt to force accountability into the system lies somewhere between irony and kismet.

Filed Under: california, drones, privacy, warrants

Australian AG Insists New Anti-Terror Law Only Allows What It Allows; Refuses To Say What It Allows

from the democracy-in-action dept

Yesterday we told you about just one of the troubling aspects of a proposed "anti-terror" law in Australia, in that under a single warrant, ASIO, the intelligence gathering organization, could effectively monitor the entire internet. During some Parliamentary discussions on this, Senator Scott Ludlam tried to add an amendment limiting the number of computers that could be monitored under a single warrant. Brandis' "contribution" to the debate on this was to accuse Ludlam of being a "liar" for claiming that the law would allow the tapping of the entire internet under a single warrant and then... refusing any further explanation. The exchange is really quite incredible. Ludlam says he'd be happy if, in fact, his understanding of their previous conversation was in error, and thus wished for clarification. Brandis responds:

What ASIO would be empowered to do is that which is authorized by the warrant, which is, in turn, governed by the terms of the Act.

Holy tautology Batman! Ludlam appears reasonably sarcastically frustrated in return:

Thank you for your opaque and utterly unhelpful response.

He asks further specific questions about what the law would cover and Brandis repeats: "I don't have anything to add to my previous answer." It's basically a giant "fuck you" to anyone wanting to make sure that the law isn't overly broad and doesn't allow spying on the entire internet. Remember, Brandis claims that was a lie, but refuses to clarify beyond the "utterly unhelpful" statement he made. Unfortunately, despite all of that insanity, the bill still passed, without Ludlam's amendment, meaning that this is likely to be the law in Australia soon. And, of course, there are other troubling aspects to the law beyond just being able to monitor everything on a single warrant. As many people have pointed out, there's a free-speech destroying provision that would allow for 10 years of jail time for whistleblowers and anyone (including journalists) who repeat what the whistleblowers revealed.

Anyone — including journalists, whistleblowers, bloggers and others — who "recklessly" discloses "information ... [that] relates to a special intelligence operation" faces up to 10 years' jail.

In short, Australia is guaranteeing that not only will they not have their own Edward Snowden but they won't have their own Glenn Greenwald, either. Combine that with the massive new powers to spy on everyone with a single warrant, and Australia just massively expanded the surveillance state, and put a gag order on anyone who wants to expose its abuses.

Filed Under: anti-terror, australia, george brandis, journalism, privacy, scott ludlam, warrants, whistleblowing

Proposed Terror Law Would Allow Australia's Entire Internet To Be Monitored With Just One Warrant

from the terrorists-have-already-won dept

Recently, Techdirt has been following the Australian government's moves to bring in intrusive new surveillance powers. The "justification" for all this is, of course, "terrorism", which has become the lazy politician's excuse for everything, and has already led to episodes of ridiculous over-reaction in Australia. So it hardly comes as a surprise that the worsening situation in the Middle East has brought forth even more of the same, in the form of the "Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014" (pdf). An accompanying Explanatory Memorandum (pdf) gives a good summary of its rationale:

1. Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters').

2. This Bill provides a suite of measures which are specifically designed to strengthen and improve Australia’s counter-terrorism legislative framework to respond to the foreign fighter threat. It will provide additional powers for security agencies to deal with the threat of terrorism within Australia and that posed by Australians who participate in terrorist activities overseas. It will further counter terrorism through improving border security measures and by cancelling welfare payments for persons involved in terrorism.

The Bill is a huge collection of amendments to dozens of existing laws, including those that regulate police search powers. Here's CNET's description of a major change in this field:

The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search".

The Explanatory Memorandum details an important new capability relating to computers:

As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere. This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment.

That seems rather broad; an article in the Sydney Morning Herald reveals just how broad:

On Wednesday afternoon, [Australian Attorney-General] Senator Brandis confirmed that under the legislation, ASIO [Australia's spy agency] would be able to use just one warrant to access numerous devices on a network.

The warrant would be issued by the director-general of ASIO or his deputy.

"There is no arbitrary or artificial limit on the number of devices," Senator Brandis told the senate.

This means that the entire Australian internet could be monitored by just one warrant if ASIO wanted to do so, according to experts and digital rights advocates including the Australian Lawyers Alliance, journalist union the Media Entertainment and Arts Alliance and Electronic Frontiers Australia.

Whether or not new powers are needed to address the problem of "foreign fighters" returning home, clearly that ability to monitor the entire Australian Internet with just one warrant is completely disproportionate, an assault on citizens' privacy, and ripe for abuse by the authorities. It underlines once again that abrogating basic freedoms in order to "fight terrorism" simply means the terrorists have already won.

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Filed Under: asio, australia, george brandis, laws, surveillance, terror, warrants

Snuffing Out The Magistrate's Revolt: DC District Court Judge Roberts Grants Another Rejected Warrant Application

from the 'I-concur-with-my-own-finding-that-this-complies-with-the-4th-Amendment' dept

As we've been covering for the past few months, there seems to be an emboldened set of magistrate judges willing to push back against broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing that prompted the Fourth Amendment in the first place.

But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt." As was noted here back in May, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.

Another Facciola refusal, one that had twice crossed his desk has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.

The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges and pointed out in the decision with the exact same footnote), Roberts again found that the government should generally be deferred to because it "knows best."

With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.

Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.

But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine with being nearly out-of-date by the time it was codified in 1986.

As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.

While Facciola argued that the old way (grab everything and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.

Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).

And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after the damage is done.

As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.

That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.

So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.

Filed Under: 4th amendment, doj, john facciola, magistrate judges, richard roberts, warrants

Ross Ulbricht Pulls Out A 4th Amendment Defense For Pretty Much Everything

from the that's-not-going-to-work dept

Ross "Dread Pirate Roberts" Ulbricht, the alleged mastermind behind The Silk Road dark marketplace, has been trying (and failing) with some creative legal theories. The latest is that his lawyers are basically arguing that almost all of the evidence was collected in ways that violate the 4th Amendment. We're certainly big proponents of the 4th Amendment around these parts, and frequently lament the way the courts and law enforcement have chipped away at it (sometimes with dynamite). However, the arguments here seem like a massive longshot.

The key to the argument is that it's somewhat murky how law enforcement found the Silk Road servers, and so Ulbricht is arguing that there was likely a 4th Amendment violation there, spoiling much of the rest of the evidence against him.

However, that event – location of the Silk Road Servers – is shrouded in mystery, as the means and manner in which that discovery was accomplished has not been disclosed – indeed, it was not disclosed in any of the applications for warrants or other orders to search and seize ESI and other material in this case.

That presents a threshold issue: whether locating the Silk Road Servers was the result of legitimate investigative technique(s), or the product of some unlawful intrusion, digital or otherwise. It also presents the issue whether the magistrate judges who approved the searches and seizures were remiss in not at least satisfying themselves that the information upon which the warrant was based was lawfully obtained and/or reliable.

The more specific claims make some interesting points, but are likely to fall flat:

In addition, many of the warrants – in particular, those directed at Mr. Ulbricht’s laptop, and his gmail and Facebook accounts – constitute the general warrants abhorred by the Framers, and which led directly to the Fourth Amendment. The wholesale collection and study of Mr. Ulbricht’s entire digital history without limitation – expressly sought in the warrants and granted – represent the very type of indiscriminate rummaging that caused the American colonists so much consternation.

The argument, not surprisingly, is relying on the new Supreme Court ruling in the Riley / Wurie cases, about the need for a warrant to search mobile phones. That is an important ruling bringing back certain 4th Amendment protections, but Ulbricht's lawyers are really trying to stretch it to argue that it applies to the warrants issued against him.

There may be some real issues in how the feds got access to the Silk Road servers, but to claim that other searches (and even actual warrants) were unconstitutional in light of Riley would require an almost ridiculously broad reading of the Riley ruling. That case involved searches of mobile phones that were on someone's person -- not a coordinated effort to track down someone they believed to be a criminal.

I do think there are some real issues with the case against Ulbricht, mainly focused on his liability for the actions done by users of Silk Road, but these kinds of broad attempts to throw anything at the wall are likely to be rejected, and can actually piss off judges who feel that lawyers are just trying to throw up a smoke screen.

There are important cases to be had in challenging various digital searches and how the 4th Amendment applies to them, but it's doubtful that this is a particularly good test case.

Filed Under: 4th amendment, dread pirate roberts, ross ulbricht, warrants
Companies: silk road