Utah Senate Passes Bill That Would Lock The Government Out Of Warrantless Access To Third Party Records

from the enjoy-your-new-home-turf,-NSA dept

Perhaps no state has unrolled and rolled up a welcome mat set out for a federal guest faster than Utah. What was once a shiny new installation with 5-10,000 jobs attached swiftly became a PR black eye after Ed Snowden exited the NSA and sprung a leak.

Suddenly, the sweetheart deal on water given to the NSA seemed like an attempt to curry favor with domestic spies, placing local politicians on the receiving end of reflected wrath from the general public. Utah's government reversed course, setting itself up as a champion of the people. An attempt was made to shut down the spy center's water supply. It never made its way into law, but the anti-panopticon tone was set. But the state is still moving forward with efforts taking on the federal government, engaged in the always-awkward grappling of the The Man sticking it to The Man.

Bills forbidding state agencies from participating in domestic surveillance have been introduced elsewhere in the country. Few of these have moved forward. But the Utah legislature -- burned by its close ties with the spy agency non grata -- has proven more tenacious than most. As Molly Davis reports for Wired, the Utah government is one step away from locking the government out of access to third party records.

On March 12, Utah legislators voted unanimously to pass landmark legislation in support of a new privacy law that will protect private electronic data stored with third parties like Google or Facebook from free-range government access. The bill stipulates that law enforcement will be required to obtain a warrant before accessing “certain electronic information or data.”

The shift towards greater privacy protections may have been prompted by the NSA data sinkhole currently hoovering up water outside of Bluffdale, but this law would affect every other state and federal agency that has made use of the Third Party Doctrine ever since its unwelcome appearance over 40 years ago.

This is very good news for Utah residents, considering the number of third parties collecting data has expanded exponentially over the past two decades. The same court that handed the government the Third Party Doctrine recently gave a little something back to the people, ruling that cell site location info has an expectation of privacy. This alters the contours of third party/government interactions, with every record grabbed without a warrant could result in a legal challenge that restores a bit more of the Fourth Amendment.

Until then, states are free to limit government access to these records on their own. Voluntarily turning over info to private third parties should not be interpreted as citizens turning over this information to everyone and their government-deputized dog.

More states should be like Utah -- a phrase that's probably never been uttered before. Hopefully, more states will follow this lead and get out ahead of the tech curve by providing their residents with these same protections.

Filed Under: 4th amendment, domestic surveillance, third party doctrine, utah, warrants

ICE Officers Forging Signatures, Deploying Pre-Signed Warrants To Detain Immigrants

from the at-this-point,-only-ICE-thinks-ICE-shouldn't-be-abolished dept

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Or whatever.

Here's ICE's much vaguer take on the Fourth Amendment, according to documents obtained by Brent Oxley, a fired ICE officer.

Internal emails and other ICE documents he obtained through a Freedom of Information Act request, since reviewed by CNN, show that other officers across the five-state region where Oxley worked had improperly signed warrants on behalf of their supervisors -- especially on evenings or weekends. Some supervisors even gave their officers pre-signed blank warrants — in effect, illegally handing them the authority to begin the deportation process.

Oxley forged signatures of supervisors. Other ICE officers didn't go that far. Many simply phoned up the supervisor who was supposed to be reviewing the warrants -- you know, to ensure they were compliant with the Constitution -- and then signed them on their behalf. In all the cases reviewed by CNN, no one was following the rules.

The President claims the "crisis" at the southern border warrants a national emergency declaration. The job ICE does is, apparently, too important to be done correctly. The agency is cooking the books to make it appear as though the nation is overrun by dangerous immigrants. Simultaneously, ICE threw manpower and funding at creating a fake college so it could sweep up immigrants and visitors attempting to comply with the law.

This warrant process that can barely be called a "process" is resulting in the illegal detention of immigrants who haven't violated the law. The Fourth Amendment is supposed to limit government wrongdoing, but ICE officers appear to believe civil rights are inconveniences to be routed around. It wants to make the fun part of the job -- rounding up people and detaining them -- more efficient.

The process is detain first, ask questions later, if ever.

One ICE deportation officer in the Northwestern United States, who asked not to be named because he wasn't authorized to speak for the agency, said his supervisors were not reviewing and signing individual warrants, called I-200s, as prescribed.

"I've had two supervisors since the memo came out. Both do it different ways, neither in the way that's outlined in the policy," the officer said. "My first supervisor would just sign the I-200s; he'd leave them blank and I would fill in the name later. My current supervisor tells us to sign his name for him." Most supervisors in that office do the same, he added.

It's only after ICE has someone in custody that anyone conducts a review of the paperwork. Apparently the agency feels comfortable abusing the rights of non-citizens, even though these same protections are extended to them by the government. It's a collective shrug from ICE towards the Constitution the agency's officers are sworn to uphold.

Brent Oxley is no hero. He's not even a whistleblower. This misconduct has come to light because the union representing ICE officers is trying to get a man who forged supervisors' signatures on warrants his job back. All Oxley was trying to show was that ICE's Fourth Amendment violations are common practice. He wasn't trying to expose the agency's wrongdoing. He was simply trying to justify his own.

Filed Under: 4th amendment, blank warrants, dhs, general warrants, ice, immigrants, immigration, pre-signed warrants, rule of law

ICE Has Access To ALPR Databases, Bypasses Internal Restrictions By Outsourcing Searches To Local Cops

from the get-all-you-can,-then-ask-for-more dept

ICE has been wanting full access to the billions of license plate records stored in ALPR databases for years. The DHS first floated the idea more than five years ago. It was reined in briefly in response to public backlash and Congressional criticism, but the idea of a national ALPR database was never truly killed off.

ICE was the agency sending out quote requests for a national database access. A few minimal protections were put in place, but all that was holding ICE back was logistics. The contract was finalized at the beginning of last year, hooking ICE up with ALPR records gathered by the hundreds of plate readers operated by local law enforcement agencies. Now, all that third party work is paying off.

More than 80 law enforcement agencies in the US have agreed to share with US Immigration and Customs Enforcement (Ice) license plate information that supports its arrests and deportation efforts, according to the American Civil Liberties Union (ACLU), which obtained a trove of internal agency records.

The documents acquired by the ACLU show that Ice obtained access to a database with license plate information collected in dozens of counties across the United States – data that helped the agency to track people’s locations in real time. Emails revealed that police have also informally given driver information to immigration officers requesting those details in communications that the ACLU said appeared to violate local laws and Ice’s own privacy rules.

When the agency takes the formal, contracted path to ALPR data, it's running through two third parties: Vigilant, the leading manufacturer of plate readers, and Thomson Reuters, a multimedia conglomerate that has added data brokering to its portfolio of journalistic endeavors.

The original proposal limited ICE's access to the 50 biggest metropolitan areas. That's a lot of ground already, but the agreement allows local law enforcement in other areas to give ICE permission to browse their end of the Vigilant database. Not that it ultimately matters. Vigilant doesn't seem to worry too much about siloing off data. Most law enforcement agencies are sharing data with lots of other agencies already, so intermingling is an inevitability.

It also appears there's no expiration data on a lot of the data ICE is accessing. According to the documents, over 9,000 ICE agents have access to years a plate/location data, allowing them to reconstruct people's movements over a long period of time.

Whatever restrictions exist on ICE's access to Vigilant databases are easily avoided.

Emails showed that a police detective in Orange county, California, repeatedly conducted database searches in response to requests from an Ice specialist in criminal investigations. The two appear to have worked together frequently over several years, with the Ice employee providing details of the immigration investigations (such as information from a target’s Facebook page) and the local detective responding with license plate information.

“I am here for ya. :),” the detective wrote in one email to Ice, which included a report. In another exchange, after the Ice officer said “hate to ask” for more reports, the detective responded: “Come on, you don’t really hate to ask.. :).”

As the ACLU points out, these informal requests allow ICE to bypass the internal processes that are supposed to ensure access to this wealth of plate/location data is justified. The communications contained in these documents show ICE repeatedly ignoring these requirements.

At this point, everything will have to be fixed in post. Cops have been utilizing plate readers for years and Vigilant has been storing the billions of plate records generated every year for just as long. The DHS never needed to build a national license plate/location database. One was being built while it put on its little charade about respecting rights and citizens' freedom to move around the country without being surveilled.

The ACLU is demanding legislators enact more privacy protections for this data and engage in some actual oversight, but that ship has been sailing for years. ICE's access was an inevitability. It enacted privacy protections just so it could ignore them by asking local law enforcement to perform database searches. And it was all sold to the public with assurances ALPR tech would hunt down car thieves, kidnappers, and violent criminals. In reality, it's being used to track people who've overstayed their visas.

Filed Under: 4th amendment, alpr, ice, law enforcement, license plate recognition, local police, privacy

Appeals Court Doesn't Buy Government's National Security Assertions; Says Lawsuit Against FBI Can Continue

from the 'we-can't-explain,'-they-explained dept

A lawsuit against the FBI for pervasive, unconstitutional surveillance of Muslims can continue after receiving a very key determination from the Ninth Circuit Court of Appeals. At the center of the case are three Muslims who claim the FBI's continuous surveillance -- assisted by an FBI informant -- violated a number of Constitutional protections.

The key victory here is the court's overturning of the lower court's ruling on the national security assertions raised by the government in hopes of avoiding having to litigate the alleged violations at all. The lower court granted the government's motion to dismiss, saying the government's secrecy matters far more than an unviolated Constitution. The appeals court reverses that, noting stating that the government can't dodge litigation simply by claiming the subject of the lawsuit is too sensitive to discuss in court. From the decision [PDF]:

Plaintiffs asserted eleven claims, which fell into two categories: claims alleging unconstitutional searches, and claims alleging unlawful religious discrimination. The district court dismissed all but one of plaintiffs’ claims on the basis of the state secrets privilege, and allowed only the Foreign Intelligence Surveillance Act (“FISA”) claim against the FBI Agent Defendants to proceed.

The panel held that some of the claims the district court dismissed on state secret grounds should not have been dismissed outright. The panel further held that the district court should have reviewed any state secrets evidence necessary for a determination of whether the alleged surveillance was unlawful following the secrecy-protective procedure set forth in FISA.

The lower court showed too much deference to the state secrets assertions. It must now reexamine the claims made by the government, as well as their application to the alleged harms. This is very helpful precedent -- one that forces lower courts to pay a lot more attention to the government's natsec hand-waving, rather than simply conclude the government knows best when it comes to state secrets.

There's more good stuff in the panel's opinion. Two FBI agents will have to defend themselves against claims of unlawful surveillance, like the following:

Plaintiffs offer sufficient well-pleaded facts to substantiate their allegation that some of the Agent Defendants—Allen and Armstrong—were responsible for planting devices in AbdelRahim’s house. Specifically, the complaint details one occasion on which Allen and Armstrong asked [FBI informant] Monteilh about something that had happened in AbdelRahim’s house that Monteilh had not yet communicated to them, and explained that they knew about it because they had audio surveillance in the house.

Plaintiffs also allege sufficient facts with regard to those two Agent Defendants in support of their allegation of electronic surveillance of Fazaga’s office in the OCIF mosque in Mission Viejo: Allen and Armstrong told Monteilh that electronic surveillance was “spread indiscriminately” across “at least eight area mosques including ICOI, and mosques in Tustin, Mission Viejo, Culver City, Lomita, West Covina, and Upland,” and that “they could get in a lot of trouble if people found out what surveillance they had in the mosques.”

The defenses raised by the sued agents forms part of the Ninth Circuit's state secrets decision. It was the agents that raised this defense, not the agency they worked for (which was also sued). As the court notes, the agents cannot possibly hope to prevail by raising a defense the government determined didn't apply to the situation.

The Agent Defendants—officials sued in their individual capacities—are not the protectors of the state secrets evidence; the Government is. Accordingly, and because the Agent Defendants have not identified a reason they specifically require dismissal to protect against the harmful disclosure of state secrets where the Government does not, we decline to accept their argument that the Government’s dismissal defense must be expanded beyond the religion claims.

What the government did do is invoke FISA's protections against open discussion of counter-terrorist surveillance programs. The court reminds the government that the law was created in response to abusive surveillance programs deployed by the government -- abuses much like those central to this case. While it did eventually lend its name to more surveillance abuses following the 9/11 attacks, it was actually more of a reform effort in its original state. Since the government appears to have forgotten FISA's original aim, the appeals court delivers this reminder.

The inference drawn from the text of § 1806 is bolstered by § 1810, which specifically creates a private right of action for an individual subjected to electronic surveillance in violation of FISA. FISA prohibits, for example, electronic surveillance of a U.S. person “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” 50 U.S.C. § 1805(a)(2)(A). Here, Plaintiffs allege they were surveilled solely on account of their religion. If true, such surveillance was necessarily unauthorized by FISA, and § 1810 subjects any persons who intentionally engaged in such surveillance to civil liability. It would make no sense for Congress to pass a comprehensive law concerning foreign intelligence surveillance, expressly enable aggrieved persons to sue for damages when that surveillance is unauthorized, see id. § 1810, and provide procedures deemed adequate for the review of national security-related evidence, see id. § 1806(f), but not intend for those very procedures to be used when an aggrieved person sues for damages under FISA’s civil enforcement mechanism. Permitting a § 1810 claim to be dismissed on the basis of the state secrets privilege because the § 1806(f) procedures are unavailable would dramatically undercut the utility of § 1810 in deterring FISA violations. Such a dismissal also would undermine the overarching goal of FISA more broadly—“curb[ing] the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”

To sum up, the appeals court isn't willing to let the government (or its agents) claim this apparently-illegal surveillance is too sensitive to discuss in open court. The government will still get to submit evidence and arguments to the court in ex parte hearings if it wants to argue certain elements of the case cannot be discussed publicly, but it will not be granted a blanket exception it can use to dodge the litigation in its entirety. The court ends its decision by noting the government can't have this much power if it's not willing to accept the responsibility that comes with it.

In holding, for the reasons stated, that the Government’s assertion of the state secrets privilege does not warrant dismissal of this litigation in its entirety, we, too, have recognized the need for balance, but also have heeded the conclusion at the heart of Congress’s enactment of FISA: the fundamental principles of liberty include devising means of forwarding accountability while assuring national security.

Which is exactly how it should be. Unfortunately, too many courts take the district court's path and give the government all the secrecy it asks for.

Filed Under: 4th amendment, 9th circuit, constitution, doj, fbi, fisa, muslims, national security, surveillance

Supreme Court Has The Chance To Extend Fourth Amendment Protections To Apartment Residents

from the let's-hope-they-do dept

If all goes well, we may end up with a little more Fourth Amendment here in the USA. The Supreme Court is currently considering reviewing a case that will more clearly define what Fourth Amendment implications cops' four-legged friends bring to the (search) party.

A Minnesota state supreme court case (Edstrom v. Minnesota [PDF]) dealing with a K-9's door sniff in an apartment hallway is up for review by the nation's highest court. The state court found in favor of the government, stating that a K-9 sniff only needs reasonable suspicion to comply with the Fourth Amendment and state's own Constitution.

Should we expect a higher standard for dog sniffs? One would think so, considering cops already refer to K-9s as "probable cause on four legs." The Supreme Court recognized in the Rodriguez decision that artificially prolonging pretextual traffic stops solely for the purpose of developing probable cause -- in many cases waiting for a drug dog to arrive at the stop -- violated the Fourth Amendment.

More captive audiences -- residents in their own homes -- shouldn't be treated to a lower standard just because they're never technically "free to go." An apartment resident can't demand officers leave publicly-accessible areas and they certainly can't just pack up their place and leave just because law enforcement doesn't have probable cause to perform a search. But officers can troll hallways with drug dogs based on only the hunch that something illegal may be occurring out of sight.

Drug dogs are trained to do only one thing: detect the odor of drugs. When they alert, officers then have probable cause to effect a search of residence. Limited searches then can be performed without a warrant under the theory that evidence may be destroyed if the residence is not secured while a warrant is obtained.

The home is supposed to be afforded the utmost in Fourth Amendment protections. But when a drug dog is involved, much of that heightened protection dissipates, replaced with non-verbal statements from an animal that can easily be triggered by nothing more than the dog's desire to please its handler. You can't cross-examine a dog to determine its trustworthiness or state of mind. All you can do is hope there's enough failure on the record to call into question the sniff's veracity and that sort of evidence is almost impossible to obtain.

Whether or not the Supreme Court decides to take this case largely depends on how the justices feel about the Jardines decision. In 2013, the Court ruled that taking a drug dog onto a person's porch to sniff for drugs was a search under the Fourth Amendment. But a lot of that reasoning relies on the definition of curtilage. For distinct homes, the privacy begins at the end of the driveway -- something further defined in 2018's Collins decision. In that case, the court held that the Fourth Amendment was violated when the officer entered an open carport to look at an allegedly stolen motorcycle.

But curtilage isn't so easily defined in shared spaces like apartment buildings. Officers can traverse halls just like residents can, provided the common spaces aren't otherwise secured with keypads or card entry. And if they can be in the hall, they can certainly take their dogs in with them. This is gray area the court hasn't directly addressed, and if it refuses to do so in this case, it allows the Fourth Amendment to be applied unequally. Zero protection for common areas that provide access to residents' doors (and their residences beyond) makes the Fourth Amendment a rich (or richer) man's protection, leaving those unable to purchase or rent their own home subject to the whims of police officers and their dogs.

Filed Under: 4th amendment, apartments, edstrom, renters, supreme court

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI's Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI's warrant problematic, but willing to apply the "good faith" band-aid.

The problem with the application of the "good faith exception" is it assumes good faith on behalf of the FBI. There's no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ's simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn't mean it makes much sense. Here's the opening of the Sixth Circuit's federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A "well-trained officer" should never have sought the search warrant in the first place, because a "well-trained officer" would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge's approval means more to the Sixth Circuit than the FBI's bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn't applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge's jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate -- whose jurisdiction covers an entire state -- could not have been mistakenly approached to grant permission to search an entire nation. The FBI's warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there's no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been "reasonable" for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ's efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn't help. In fact, it doesn't make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent -- requesting a warrant in 2015 -- can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out -- as others have -- that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there's a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts' capacity to forgive.

Filed Under: 4th amendment, 6th circuit, doj, fbi, good faith, jurisdiction, playpen

CBP Will Search You And Your Property If You're Paying Too Much Attention To An Agent. Or Too Little.

from the all-that-can-be-said-for-sure-is-the-CBP-is-going-to-be-performing-searches dept

There's a lot of talk about border security recently. Rather strangely, it involves CBP officers going without paychecks for an indefinite amount of time as government funding is held hostage in exchange for border wall/fence money.

Not that the CBP needs to remain near the wall/fence. It's able to hassle people within 100 miles of the border, which also includes international airports and has the capability to sweep up most of America's population. And that's just CBP officers. The CBP's drones are being lent out to anyone who wants to use one as far inland as they want to use it.

The CBP performs a whole lot of searches. Over the past couple of years, the CBP has vastly increased the number of electronic searches it performs, needing little more than "because it's there" to perform at least a surface scan of a device's contents. Deeper digging requires extra paperwork, but a staggering amount of exceptions to the Fourth Amendment apply at the borders which, as we noted earlier, covers far more than points of entry.

The ACLU's FOIA lawsuit has resulted in the production of a couple of lengthy documents from the CBP. These documents detail search procedures and the CBP's long list of justifications for performing these searches. There are 1,200 pages in the newly-released stash. 1,100 of them are the CBP's "Enforcement Law Course" [PDF]. The other 100 are a Powerpoint [PDF] containing "legal update training."

The CBP has studied every Fourth Amendment-related legal decision to compile a long list of things officers can use to predicate a warrantless search. This multi-jurisdictional paper chase results in the expected internal contradictions, resulting in the CBP being able to argue both sides of a flipped coin can give them permission to perform a search. Here's a quick summation of some of the documents' contents by Max Rivlin-Nadler of The Intercept.

[The CBP] can determine “whether the vehicle or its load looks unusual in some way,” or “whether the passengers appeared dirty.” If those descriptions don’t apply, they can assess “whether the persons inside the vehicle avoid looking at the agent,” or conversely, “whether the persons inside the vehicle are paying undue attention to the agent’s presence.” And if those don’t apply, they can simply determine that the car is in an area nearby the border and pull it over on that basis alone.

Being near a border is inherently suspicious, even if someone has only made the mistake of residing legally within 100 miles of a border or airport. That sucks for them since it means any trip out of town and onto a major highway could result in a fully "justified" search.

When Border Patrol officers aren't claiming their dogs can detect smuggled humans in moving vehicles dozens of feet away, they're saying whatever comes to mind to justify a search they've already performed. A much longer list of search predicates -- culled from hundreds of legal decisions all over the nation -- is contained in the documents.

(1) whether the vehicle is close to the border;
(2) whether the vehicle is on a known smuggling route;
(3) whether the vehicle’s presence is inconsistent with the local traffic patterns;
(4) whether the vehicle could have been trying to avoid a checkpoint;
(5) whether the vehicle appears to be heavily laden;
(6) whether the vehicle is from out of the area;
(7) whether the vehicle or its load looks unusual in some way;
(8) whether the vehicle is of a sort often favored by smugglers;
(9) whether the vehicle appears to have been altered or modified;
(10) whether the cargo area in the vehicle is covered;
(11) the time of day or night at which the vehicle is spotted, and whether it corresponds to a shift change;
(12) whether the vehicle is being driven in an erratic or unsafe manner;
(13) whether the vehicle appears to be traveling in tandem with another vehicle;
(14) whether the vehicle looks as if it has recently been driven off road;
(15) whether the persons inside the vehicle avoid looking at the agent;
(16) whether the persons inside the vehicle are paying undue attention to the agent’s presence;
(17) whether the persons in the vehicle tried to avoid being seen or exhibited other unusual behavior;
(18) whether the driver slowed down after seeing the agent;
(19) whether the passengers appeared dirty;
(20) whether there is intelligence available that suggests that smuggling will occur in the area or by a specific vehicle; and
(21) whether the vehicle is coming from an area of a sensor alert.

Heads, the CBP wins. Tails, citizens and visitors lose.

As this chart shows, a whole lot of searching can be performed under the "Border Exception." Things and people that have crossed a border tend not to require probable cause or warrants to be searched.

The CBP is going to perform a search. That's pretty much all there is to it. The only thing limiting it is hours in the day. The courts aren't helping either. They've been lulled to sleep with statements about "border integrity" and "national security," becoming complicit in a unilateral removal of rights for anyone in the areas the CBP is allowed to roam.

There's no upside here. The steady deterioration of rights near the border will continue. There hasn't been a presidential administration yet willing to put an end to the DHS's mission creep. And it really doesn't matter how well the CBP knows its Fourth Amendment caselaw. It will still be granted good faith exceptions for searches that somehow manage to implicate what's left of the Fourth Amendment because protecting the nation is somehow more important than protecting the rights of its citizens.

Filed Under: 4th amendment, border patrol, cbp, search

Students Make A Video Depicting A School Shooting; Sheriff Decides Everyone Needs To Have Their Rights Violated

from the if-he's-lucky,-he'll-only-face-one-lawsuit dept

Heightened sensitivities and a law enforcement track record of overreaction has prompted a New York Sheriff's Office into actions that will probably result in at least one civil rights lawsuit. When students of a New York school decided to create a couple of videos and post them to Instagram, the Sheriff felt compelled to violate the students' Fourth Amendment rights after disregarding their First Amendment rights.

Three students face felony charges of making a terroristic threat for posting online two brief videos where they act out a school shooting in someone’s house.

[...]

The Albany County Sheriff’s Office said the videos were made by Ravena-Coeymans-Selkirk students aged 10, 14 and 15 and posted to Instagram. They show a student with a fake gun barging into a living room and “shooting” two other students. In one video, students, who are all white, use a racial epithet.

Sheriff Craig Apple called the videos “very graphic, very racist and horrifying.”

Lots of movies, books, TV shows, and videogames contain "graphic and horrifying" content. Some even include "racist" dialogue, just as this video did. At no point did any of the participants mention a school, mention an intent to perform these acts at a school, or even tag other students/schools in the posting. It was simply a dramatization of events that happen far too often in this country.

The videos were noticed by a student of the school the three arrested students attended. No one's faulting the school for handing over the videos to law enforcement, but the sheriff's office should have recognized the students were engaging in protected speech, not issuing terroristic threats. A simple conversation about why the videos might be disturbing to others should have been the end of it. Instead, there are now three arrests and a bunch of civil rights lawyers pointing out exactly why these arrests should not have occurred.

Manhattan civil rights lawyer and television commentator Ron Kube said the videos don’t rise to the level of terroristic threat because there was no specific target or agenda. “This appears to be a wild overreaction driven by the legitimate concerns about school shootings,” Kube said Monday.

Civil rights lawyer Normal Siegel, former executive director of the New York Civil Liberties Union, also said there was no terroristic threat and that the videos appeared to be an attempt at acting.

“The arrests raise serious and substantial First Amendment concerns,” said Siegel. “Making a video is protected by the First Amendment.”

Content disturbing to others is present in a lot of content. Just because this dramatization happened to be produced by students and distributed by Instagram doesn't somehow entitle it to less First Amendment protection than a motion picture released by a major studio. Just because the participants happened to be school students doesn't mean their speech is less protected than someone with a multi-million dollar budget.

Sheriff Craig Apple's speech -- as moronic as it is -- is also protected by the same First Amendment he won't extend to these students.

“There’s been enough shootings going on around the country. This is despicable artistic expression, if that’s what it was.”

Sheriff Apple is free to hate the expressive speech. But he's not free to arrest people for speech he doesn't like. And all the "but what if a shooting actually happened?" excuses don't make this any less of a compound civil rights violation.

Filed Under: 1st amendment, 4th amendment, albany, craig apple, overreaction, police, school shootings, videos

County Agrees To Pay $390,000 To Students Arrested By A Sheriff 'Just To Prove A Point'

from the MAYBE-HIRE-BETTER-PEOPLE dept

Back in September, the Ninth Circuit Court of Appeals unshockingly decided that it's illegal to arrest schoolchildren just to "prove a point." The Fourth Amendment demands probable cause for an arrest, even an arrest of students who have (slightly) diminished Constitutional rights.

This was Deputy Luis Ortiz's solution to a problem he shouldn't even have been attempting to solve. Ortiz decided the students he was speaking to about alleged bullying weren't taking him seriously enough, so he tossed a few in squad cars and took them to the Sheriff's office. Nothing about this was legal, but the county decided to defend this all the way to the appellate level. The Ninth Circuit's assessment of Ortiz's actions was harsh but far more fair than Ortiz deserved.

Deputy Ortiz clearly stated that the justification for the arrests was not the commission of a crime, since he did not “care who is at fault,” nor the school’s special need to maintain campus safety, but rather his own desire to “prove a point” and “make” the students “mature a lot faster.” The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.

[...]

Deputy Ortiz faced a room of seven seated, mostly quiet middle school girls, and only generalized allegations of fighting and conflict amongst them. Even accounting for what Deputy Ortiz perceived to be nonresponsiveness to his questioning, the full-scale arrests of all seven students, without further inquiry, was both excessively intrusive in light of the girls’ young ages and not reasonably related to the school’s expressed need.

It appears this loss has finally pushed the county to accept the inevitable outcome of Deputy Ortiz's unconstitutional behavior. The Daily Bulletin reports taxpayers will be paying the arrested students for Ortiz's illegal bullying.

San Bernardino County has agreed to pay nearly $400,000 to three former middle-schoolers to settle a lawsuit stemming from a 2013 arrest a federal court ruled unconstitutional.

In October 2013, a San Bernardino County sheriff’s deputy handcuffed, arrested and drove three seventh-grade girls from Etiwanda Intermediate School to the police station to “teach the girls a lesson.”

On Friday, Dec. 21, a lawyer for the girls announced the county has paid them $390,000 to settle their lawsuit.

This outcome was all but assured the moment Ortiz decided to start teaching students lessons by performing unconstitutional arrests. The county's decision to fight the district court's ruling doesn't reflect well on it or its legal representation. Somehow the county thought that if it just litigated hard enough, it would somehow talk a court into agreeing law enforcement can arrest people just to "teach them a lesson" -- even when those "someones" were teens who committed no crime and posed no safety threat to the school or the idiotic law enforcement officer it had hired.

Filed Under: 4th amendment, 9th circuit, arrest, luis ortiz, san bernardino county, students

Report: CBP's Border Device Search Program Is An Undersupervised Catastrophe

from the scattershot-security dept

The CBP is searching more devices than ever and ramping up an "extreme vetting" program that includes biometric scans, demands for social media account passwords, and more intrusive searches across the board. As the number of device searches continues to increase, the agency's technical chops and and internal oversight aren't keeping pace.

That's according to recently-released Inspector General's report [PDF], which finds little to like about the CBP's search processes and policies, other than they occasionally manage to catch criminals attempting to enter the US. The CBP's Office of Field Operations is supposed to be taking charge of device searches, ensuring they're done effectively and intelligently. So far, it appears the OFO has taken a hands-off approach to management, resulting in bad practices and worse security.

[B]ecause of inadequate supervision to ensure OFO officers properly documented searches, OFO cannot maintain accurate quantitative data or identify and address performance problems related to these searches. In addition, OFO officers did not consistently disconnect electronic devices, specifically cell phones, from networks before searching them because headquarters provided inconsistent guidance to the ports of entry on disabling data connections on electronic devices. OFO also did not adequately manage technology to effectively support search operations and ensure the security of data.

Here's the kicker: the OFO is so laid back it still hasn't begun to address a problem raised by the Inspector General more than a decade ago.

Finally, OFO has not yet developed performance measures to evaluate the effectiveness of a pilot program, begun in 2007, to conduct advanced searches, including copying electronic data from searched devices to law enforcement databases.

Considering the pace of technology development, the OFO has managed to put the CBP more than a decade behind. Playing catch up now will probably bring them to five years behind schedule sometime within the next couple of years and ahead of the office's baseline expectations sometime around never.

These device searches can be intrusive. In some cases, devices are held for months as the agency performs forensic searches and analyzes the data. These intrusions need to be justified, but the IG found CBP officers can hardly be bothered to do the paperwork.

We reviewed 194 EMRs [Electronic Media Reports] and identified 130 (67 percent) that featured one or more problems, which totaled 147 overall.

The DHS's own search policies say device searches will be limited to data at rest, unless a deeper search can be justified. The OIG says none of the 154 EMRs compiled before the DHS reiterated this rule in April 2017 contained any evidence data connections were disabled before searches were performed.

This lack of care undercuts one of the arguments the DOJ offered when fighting against a warrant requirement for phone searches: that criminals could destroy evidence on a seized device using remotely-triggered software. The CBP either doesn't think this is a possibility or it sincerely doesn't care if it's jeopardizing its own searches. Either way, it does nothing to give the government's overdramatic assertions any more credibility.

The list of bad news goes on and on. The CBP failed to renew licenses for forensic software, resulting in the inability to perform advanced searches for period of months. It also ignored retention policies, allowing data copied from people's devices to sit around on external storage devices indefinitely. As the OIG points out, this isn't just a policy violation. It's also a security issue. Agents could peruse communications and data they have no business looking at and the theft of a storage device could result in unauthorized disclosures of travelers' data.

If there's a silver lining, it's that the CBP concurs with the IG's determination that it sucks. There's been no pushback from the agency -- only vows to make the needed improvements. But that's tempered by the fact the CBP still hasn't begun to address issues raised by the OIG in 2007. These recommendations will likely put the agency even further behind the technological curve, raising the chance of criminals and terrorists escaping detention and increasing the risks posed to travelers that their data might be abused by the CBP, or worse, some rando who happens to walk off with an unguarded USB stick.

Filed Under: 4th amendment, border search, dbp, device search, ofo, search