After Taking A Couple Of Steps Towards Trimming Back Qualified Immunity, The Supreme Court Regresses To The Mean

from the continuing-to-redefine-'judgment-proof' dept

The Supreme Court spent decades making it all but impossible for citizens to successfully sue law enforcement officers for violating their rights. The Supreme Court created the doctrine of "qualified immunity" nearly 40 years ago and has spent most of the intervening years honing it into a nearly impenetrable shield for officers who violate rights.

But over the past year, the Supreme Court seemed to recognize it had perhaps placed too many limits on lower courts, leading them away from examining the case at hand and towards affirming QI defenses because no precedential case had identical facts: i.e., excessive force deployed at 6 pm on a Tuesday is completely different than excessive force deployed at 7 am on a Wednesday, etc. And if no previous facts aligned with the current facts, courts had no reason to examine the facts in front of them, steering them away from creating new precedent that would put officers on notice that violating rights on a Wednesday morning also wouldn't be tolerated.

The past twelve months have been somewhat anomalous for the Supreme Court. It has reversed three appeals court decisions awarding qualified immunity. The three reversals were important. The Fifth Circuit was home to two of the reversals -- a circuit notorious for its aggressive protection of law enforcement officers. But the lack of an official opinion suggests the Supreme Court is in no hurry to limit qualified immunity's coverage.

The latest shadow docket release [PDF] from the Supreme Court contains two more unofficial orders on qualified immunity decisions. But these go the other way, reversing appellate decisions that stripped officers of their qualified immunity shield. (via Reason)

In one case (via the Ninth Circuit), police officers reporting to a call from two teens about their mother's drunk ex-boyfriend menacing them in their home arrested Ramon Cortesluna. According to the arrestee, his rights were violated when Officer Daniel Rivas-Villegas knelt on his back with his knee while he was already face down on the ground. The Ninth Circuit said this was excessive force, citing another case where an unarmed arrestee was seriously injured when he was restrained face down by an officer's knee.

The Supreme Court, however, says the Ninth Circuit's cited precedent isn't on point enough. The cited case dealt with an unarmed person and a noise complaint. This case deals with a man who had a knife on him and was allegedly trying to saw his way into a room where the two frightened teens who made the 911 call had barricaded themselves. The similarity is the knee to the back as a restraint method and the Supreme Court says that's simply not enough.

The second rejection is headed back to the Tenth Circuit. In this case, a woman called the cops on her ex-husband, who was drunk and wandering around outside of her house. Officers arrived and followed the man into the garage, where the man grabbed a hammer and held it over his head, ignoring orders to drop the tool. When he refused, the officers on the scene shot and killed the man. The entire confrontation was captured on the officers' body cameras.

The Tenth Circuit said no immunity because the officers' decision to follow the man into the garage created the danger they responded to by killing him. The Supreme Court says the Tenth Circuit is wrong. Not only that, it says it shouldn't even need to be having this discussion in the first place.

We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment. On this record, the officers plainly did not violate any clearly established law.

These may have been close cases -- far from the seemingly clear violations of rights detailed in earlier reversals by the Supreme Court. But what's said about these cases is alarming. Rather than build on previous reversals in which the Supreme Court said lower courts were far too specific in their determinations of what had be "previously established," the Supreme Court rolls everything back, restating its mandate that cases on point are all that matters, not the egregiousness of the violation being discussed nor any determinations about what officers should "reasonably" be expected to know about the Constitution.

Worse, it makes it clear the Supreme Court is still solidly behind its own doctrine and wishes to shield as many officers as possible from additional fact-finding or actually being subjected to the apparent indignity of a jury. It seems the Supreme Court believes all lawsuits against law enforcement officers are frivolous until proven otherwise and that, at the very worst, government employees should only have to suffer through a couple of rounds of motions before walking away from allegations of rights violations.

Filed Under: 10th circuit, 4th amendment, 9th circuit, civil rights, police, qualified immunity, supreme court

A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court

from the K-9s-are-tire-chalk dept

How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.

But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)

Here are the facts of the case:

In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.

After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.

The district court was fine with Pico's momentary intrusion and denied the motion to suppress. It said that because the sniff was of the dog's own volition, it couldn't possibly have been a rights violation.

The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.

The challenge of the search pointed to the Supreme Court's decision in Jones, which found intrusions -- however minimal -- into private property were unconstitutional without a warrant or any applicable warrant exception. In that case, officers placed a tracking device on a parked car. That minimal intrusion (in service of a greater, more extended intrusion) was impermissible.

Idaho's Supreme Court agrees with the defendant. Jones is controlling here. The intrusion may have been minimal but it was still an intrusion.

We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.

Then it points to a more recent Appeals Court decision that dealt with another form of minimal intrusion.

Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.

This was the same conclusion a California federal court reached last spring. A tire mark is a search. And, if that's upheld on appeal, there will be controlling precedent in Idaho (the Ninth Circuit, which also covers California) that aligns with the findings here.

And that finding is that it isn't the means or methods or length/depth of the intrusion. It's the intrusion that matters.

Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.

That's the baseline. And the court says the government can't save its search by claiming the drug dog was in the process of alerting prior to the intrusion into the vehicle. The officer's testimony stated that the dog had not shown a "final" alert prior to sticking its nose through the window. Only after that did the dog sit, something the officer said was an "alert."

When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?

That's the problem with four-legged probable cause. It's mostly up to the officer interpreting the dog's acts. And, without the benefit of dashcam or body camera recordings, these subjective takes become part of the official record and are difficult to challenge. This recounting of events raises enough questions about the dog's actions that the court is unwilling to call any of what's described above "probable cause."

This decision says the government can't have the evidence it obtained with the aid of an intrusive canine. And that means it can't have its conviction either. Going forward, cops in Idaho are going to need actual probable cause -- not just inconsistent dogs -- before searching people's cars during traffic stops.

Filed Under: 4th amendment, drug dogs, idaho, search

Court Says Google Translate Isn't Reliable Enough To Determine Consent For A Search

from the almost-habla-espanol dept

The quickest way to a warrantless search is obtaining consent. But consent obtained by officers isn't always consent, no matter how it's portrayed in police reports and court testimony. Courts have sometimes pointed this out, stripping away ill-gotten search gains when consent turned out to be [extremely air quotation marks] "consent."

Such is the case in this court decision, brought to our attention by FourthAmendment.com. Language barriers are a thing, and it falls on officers of the law to ensure that those they're speaking with understand clearly what they're saying, especially when it comes to actions directly involving their rights.

It all starts with a stop. A pretextual one at that, as you can see by the narrative recounted by the court.

On February 11, 2020, Corporal Mark Conrad of the Pennsylvania State Police initiated a traffic stop of a vehicle driven by Ramirez-Mendoza on Interstate 80 ("I-80") in Union County, Pennsylvania. Conrad chose to conduct a stop because Ramirez-Mendoza was driving above the speed limit and he suspected that her vehicle's window tints were illegal. While standing by Mendoza-Lopez's car, Conrad observed that there were two cell phones in the car's center console area and a single key in the ignition. Conrad also detected a strong odor of air freshener emanating from the vehicle.

"Suspected tint was illegal." Check. "Multiple cell phones." Check. "Air freshener." Check. All the things needed to cause a state trooper to be somewhat reasonably suspicious. The language barrier only heightened the suspicion, apparently. Corporal Conrad tried to get details on Mendoza's travel plans, but was unable to because, while he asked questions in English, he was only able to get Spanish in return.

The trooper decided tech could get the job done. He retrieved his phone and turned on Google's translation app. Using this, he asked questions and received answers, all filtered through Google's translation service. This process introduced the possibility of erroneous translations, something the trooper was incapable of recognizing.

Because Conrad does not speak or understand Spanish, he did not and could not confirm whether Google Translate accurately interpreted and articulated what he was saying.

A mistranslation wasn't just a probability. It was an actuality, something that was captured by the trooper's body camera. There was a mistranslation at a very crucial juncture of this traffic stop.

Later in the stop, Conrad asked Ramirez-Mendoza if she had anything illegal in the car. She responded no. Conrad then said: "would like to search the car to make sure, okay?" Google Translate converted this into Spanish, and from the video recording, it appears that the word "registrar" was used in place of the phrase "to search." The FBI linguist translated the app's Spanish translation into the statement: "I like to search the car to make sure that it is all right." Again, however, the Government did not offer any testimony to verify the accuracy of this translation.

Ramirez-Mendoza then responded "uh-huh" and nodded her head. Conrad subsequently directed her to the shoulder of the highway and proceeded to search the vehicle. In the car, he found a large package of fentanyl. Ramirez-Mendoza testified that she believed that Conrad had meant "I like check the cars, revise the cars" and that she did not understand this to mean that he intended to search her vehicle. She acknowledged that she had responded that it was "fine" because he had not indicated to her that he was asking to look inside the car or through her belongings. In any event, at no point did Ramirez-Mendoza protest the search or ask for clarification.

The court says this effort -- as well-intentioned as it might have been -- is not enough. Google Translate is simply not reliable enough to be used in a situation where rights are on the line. While some courts have said the service performs well enough, the translation errors observed in the recording suggest it didn't in this case.

The Court is not convinced that Google Translate accurately translated Conrad's request for consent into Spanish. The Government bears the burden of proof, but failed to introduce any evidence showing that the word "registrar" actually means "to search." Unlike in cases such as Salas-Antuna or United States v. Leiva which found the word "buscar" sufficient to communicate to a suspect that an officer would like to search her property, the Court has no legal or factual basis for interpreting the term "registrar" in a similar manner. Precision is important, particularly in this context, and the Court believes that more was needed to establish the accuracy of Google Translate.

Moreover, even if the Court credited the transcript's translation, it would not be enough to bear the Government's burden. While the transcript tends to prove that Ramirez-Mendoza knew that Conrad intended to search her car, the translation would still undercut the Government's case as the transcript shows that Google Translate revised Conrad's question into a statement. As a statement that one "like[s] to search" is significantly more coercive than a request, this alone would not be enough to establish voluntary consent. The transcript thus presents strong evidence of coercion which would suggest that Ramirez-Mendoza felt unable to refuse given Conrad's declaration.

The court isn't going to give the trooper a pass by giving Google Translate a pass. It declines the state's invitation to give the app a five-star rating.

The Court declines to infer that Google Translate accurately translated and communicated Conrad's request to search Ramirez-Mendoza's vehicle solely because it may work well generally. A review of the record shows that Google Translate is a useful tool with an alarming capacity for miscommunication and error. That the app can facilitate basic communication does not make it an adequate method for soliciting consent. It need only fail once to obviate a suspect's consent.

The court points out Trooper Conrad had a whole bunch of better options, but used none of them. He could have located someone to translate. He could have used pre-printed consent forms that include a Spanish version. He could have run his drug dog around the car and looked for an alert, which would have made consent a non-issue. And he could not explain why he failed to use any of these options, but continued to utilize Google's app, even after it became apparent it was generating un-useful junk.

Courts may not expect officers to be legal experts, but this substantial footnote suggests they should at least be aware that there's one truly acceptable way to obtain consent from someone who doesn't speak the same language as the officer.

The Court finds Conrad's failure to use a consent form odd. When communication issues are present and a translator is not available, the gold standard appears to be an accurately translated foreign-language consent form which the defendant reads and signs. See Cedano-Medina, 366 F.3d at 687; United States v. Gaviria, 775 F.Supp. 495, 500 (D.R.I. 1991); e.g., United States v. Palomino, 100 F.3d 446, 450-51 (6th Cir. 1996); United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987); United States v. Marin, 761 F.2d 426, 433-34 (7th Cir. 1985); United States v. Guevara-Miranda, 640 Fed. Appx. 319, 321 (5th Cir. 2016); United States v. Gonzalez-Ramirez, 317 Fed. Appx. 790, 796 (10th Cir. 2009); United States v. Camilo, 287 F.Supp.2d 446, 454 (S.D.N.Y. 2003); United States v. Soto-Teran, 44 F.Supp.2d 185, 194 (E.D.N.Y. 1996); United States v. Hernandez, 872 F.Supp. 1288, 1296 (D. Del. 1994); United States v. Tavarez, 834 F.Supp. 55, 56 (D.P.R. 1993); United States v. Garcia-Restrepo, 648 F.Supp. 1188, 1194 (S.D. Fla. 1986); see also United States v. Hernandez, 224 F.Supp.2d 1156, 1160-61 (W.D. Tenn. 2002) (finding no consent where the consent form "contained numerous linguistic mistakes which distorted its content to the point of rendering it nonsensical"); United States v. Suarez, 694 F.Supp. 926, 939 n.10 (S.D. Ga. 1988) (holding it inappropriate to use an English consent form as evidence of consent where the defendant spoke Spanish and the form was not translated). Conrad has provided no valid explanation for his failure to use such a form and, had he simply employed a consent form, there would be no dispute regarding Ramirez-Mendoza's consent, or lack thereof.

Pre-printed consent forms have been vetted and edited. Google Translate, as powerful as it is, generates what it thinks is the best translation of what it's hearing, and its best is years away from being at the level of someone truly bilingual. Thus, it's fallible enough it shouldn't be used to ask people who speak other languages to waive their rights.

Unfortunately, that only invalidates the consent. The court says there was enough reasonable suspicion present to support the search, even without consent. While tech tools can make some things easier, there's a lot more involved in actually making things better. Google fell down here. As did a trooper who should have known better than to rely on a service that was generating nonsense to talk someone into letting their rights be violated.

Filed Under: 4th amendment, consent, google translate, search, traffic stop

Connecticut Supreme Court Says Cops Need Warrants To Run Drug Dogs Around Motel Room Doors

from the probable-cause-needed-to-deploy-probable-cause-on-four-legs dept

Drug dogs are man's best friend, if that man happens to be The Man. "Probable cause on four legs" is the unofficial nickname of these clever non-pets, which give signals only their handlers can detect which give cops permission to perform searches that otherwise would require a warrant.

They're normally seen at traffic stops and border checkpoints, but they're also used to sniff other places cops want to search but don't want to get a warrant to do so. This has led to a few legal issues for law enforcement, with courts occasionally reminding them that a dog sniff is a search and, if the wrong place is sniffed, it's a constitutional violation.

The top court in Connecticut has curtailed the use of drug dogs in certain areas, finding that sniffs are still searches and these searches are unreasonable under the state constitution if performed in certain areas -- namely outside the doors of motel rooms. (via FourthAmendment.com)

In this case, police officers allowed their dog to sniff at doors of motel rooms until it alerted on a door. Using this quasi-permission, officers entered the room and found contraband. The government argued that even if it was a search, it was performed in a place (a hotel or motel) where citizens would have a lowered expectation of privacy, considering the fact the rooms are only rented, utilized for only a short time, and accessible by hotel staff.

In a really well-written opinion [PDF], the court reminds the government that a lowered expectation of privacy is not the same as a nonexistent expectation of privacy. And, more importantly, it reminds them that, while motel rooms may not have the sanctity of people's permanent homes, it is a home away from home and afforded more protection than, say, a car parked on the curb of a public road.

The court addresses all of the government's arguments and finds none of them persuasive.

First, the state asserts that, in contrast to an apartment, a motel room most often serves merely as transitory quarters rather than a private, permanent residence. Although we agree generally with this observation, it is well settled that motel guests, like home dwellers, have a reasonable expectation of privacy in their rooms. The fact that a motel is not a home when, as is ordinarily the case, a stay there is temporary, does not, ipso facto, establish the scope of the privacy that transient motel guests reasonably may expect.

Holding otherwise would allow cops to engage in all sorts of searches simply by claiming one thing is not as private as another thing.

Indeed, this court previously has recognized that those aspects of a hotel or motel that reduce a guest’s expectations of privacy but do not increase the vulnerability of guests to the particular type of intrusion at issue are irrelevant in assessing the legality of that intrusion. If it were otherwise, the only guidance that courts would have in determining whether certain conduct by the police constituted an unlawful search of a motel room would be the vague and conclusory statement that motel guests have a diminished expectation of privacy as compared to residents of private homes.

That reference to the "particular type of intrusion" is also fatal to the government's third argument, which said that because conversations can be overheard due to close proximity to other rooms and that hotel staff can enter rooms and find contraband, the shared hallways are places cops can let drug dogs legally roam. But a drug dog's sniff is not either of the state's examples, so the analogy is not only bogus, but an unlawful presumption.

We do not agree, however, that a room occupied by a motel guest is more vulnerable to a warrantless canine sniff than an apartment, condominium or house simply because other guests occupy nearby rooms or because the rooms may be entered by motel staff to perform certain functions unless guests place a ‘‘Do Not Disturb’’ sign on the door.

And, while motel rooms necessarily won't contain the long list of personal effects and papers people store in their homes, they're far from devoid of personal effects.

Again, such guests ordinarily do not keep all of their personal effects in their rooms because a motel room frequently is a temporary accommodation or lodging and not the guest’s permanent residence. That fact, however, does not mandate the conclusion that the personal effects that guests often do keep there—no matter how private or personal they may be—should be subject to appreciably less protection under the law. On the contrary, we see no reason why a motel guest reasonably cannot expect a degree of privacy in his or her room sufficient to preclude random or arbitrary intrusions by the police.

The court affirms the sniff was a search and it was not permissible just because officers could access the hallways and walkways outside of the motel rooms without a warrant.

We see no reason why the fact that the police in the present case were lawfully present in an open-air walkway abutting the defendant’s motel room makes any appreciable difference with respect to this analysis. The relevant question is not how easy it may be to gain lawful access to the door of a particular dwelling or lodging, but what conduct those occupying that space reasonably may expect from persons who actually have such access.

Finally, the court points out that even the government doesn't believe its own arguments. If it did, it would not have implied that it would find this sort of behavior by law enforcement objectionable on some level.

We note, in addition, that, if the state were correct that a canine sniff of the exterior door of a motel room is an event altogether lacking in constitutional significance, the police would be entitled to roam through the corridors of a motel conducting canine sniffs of some or all of the doors to those rooms despite having no particularized cause to believe that any of them contained drugs. In tacit acknowledgment that our citizenry would find this conduct unacceptable, the state asserts that there is no reason to believe that the police in Connecticut would engage in such a trawling exercise, even though they could do so lawfully.

If the state finds its own arguments conducive to objectionable behavior by law enforcement officers, the court can't be expected to sign off on it.

Even if we shared the state’s confidence in that regard, however, the fact that it would be legally permissible for the police to go from door to door conducting suspicionless canine sniffs throughout the motel is itself reason to doubt the soundness of the state’s constitutional argument.

The end result for Connecticut cops? Warrants are needed for drug dog sniffs in situations like these. Reasonable suspicion is not enough.

[W]e are not persuaded that an exemption from the warrant requirement should be extended to a canine sniff of the exterior door to a motel room, as the state advocates. We believe, rather, that, in the present context, the ‘‘balance between law enforcement interests and [an individual’s] privacy interests . . . tips in favor’’ of the latter, given that ‘‘our state constitutional preference for warrants [occupies the] dominant place in that balance . . . .’’ Accordingly, we reject the state’s claim that a canine sniff of the exterior door to a motel room is lawful if supported by a reasonable and articulable suspicion and conclude, instead, that such a search satisfies state constitutional requirements only if it follows the issuance of a warrant founded on probable cause.

That's the standard in the state now. Law enforcement officers need to seek a warrant to run a drug dog around near hotel/motel room doors. The expectation of privacy isn't as elevated as when a person is in their own home, but there's still enough of an expectation that officers can no longer assume rooms used temporarily and accessible by employees are also accessible to them without any additional paperwork or probable cause.

Filed Under: 4th amendment, connecticut, drug dogs, drugs, law enforcement, motels, police, warrant

Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can't do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can't do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here's the court's description of this case's origination:

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (“ICAC”). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new "standard procedure" is to obtain a warrant before opening a CyberTip "when the provider has not viewed the images." The court notes it is "not clear from the record" that this is standard practice at other ICAC offices, or whether they've also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson's email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that's all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn't mean there's no subjective expectation of privacy in one's own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals’ files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone else’s house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third party’s privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won't salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it's always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court's refusal to suppress the evidence. But it's now crystal clear in the Ninth Circuit: get a warrant.

Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant

Inspector General Says CBP's Device Search Program Still A Mess, Still (Ironically) Mostly Undocumented

from the PAPERS-PLS dept

The CPB continues to increase the number of electronic devices (at least temporarily) seized and searched at border crossings and international airports. Basic searches -- ones that don't involve any additional tech or software -- can be performed for almost any reason. For deeper searches, the CBP needs only a little bit more: articulable suspicion.

Even though it's only a very small percentage of the total, it continues to increase, both in total numbers and as a percentage of the whole.

In fiscal year 2018, OFO processed more than 413 million travelers arriving at U.S. POEs and conducted an estimated 33,062 basic and advanced electronic device searches of those inbound travelers (.008 percent). In FY 2019, CBP processed more than 414 million travelers and conducted an estimated 40,610 basic and advanced electronic device searches of those inbound travelers (.010 percent).

That's from the DHS Inspector General's latest investigation [PDF] of CBP device searches. The last time the IG stopped by the CBP to perform some oversight in this area, it declared the whole thing a catastrophe. There was very little direct supervision of searches, documentation was almost nonexistent, and the CBP had no idea whether more searches were resulting in more investigations or arrests of criminals. Not only that, but the CBP had yet to implement any method of quantifying the security/safety gains of performing invasive device searches at border crossings.

Right at the top, the IG refers to the CBP's policy on device searches, which clearly and succinctly states the agency's obligations:

CBP’s Directive requires CBP officers to fully document all information related to searches of electronic devices.

You can already guess where this is headed.

First, there's a callback to the last investigation by the IG:

In our first audit of CBP’s searches of electronic devices at POEs [Ports of Entry], we reported deficiencies in supervision, guidance, equipment management, and performance measures and made five recommendations to improve the program’s effectiveness. CBP concurred with all five recommendations and has taken some actions to improve oversight, such as streamlining license renewals, developing processes to conduct annual field office reviews, and updating its self-inspection worksheet to better identify deficiencies. As of May 2021, CBP had not fully implemented four of five recommended corrective actions.

Since there's been no improvement on the back end, there's been no improvement on the front end.

Here's a more detailed description of what's required when a phone is searched by CBP personnel:

CBP’s Directive requires CBP officers to include all information related to the search, such as whether the device’s wireless data connection was disabled, a tear sheet was provided, and if a supervisor approved advanced searches. In instances in which OFO detains or seizes an electronic device, officers document such incidents on DHS Form 6051D, Detention Notice and Custody Receipt for Detained Property and DHS Form 6051S, Custody Receipt for Seized Property and Evidence, to demonstrate chain of custody. The Directive also tasks supervisors with ensuring officers complete thorough inspections and that all notification, documentation, and reporting requirements are met.

Here's what happened instead:

OFO [Office of Field Operations] did not always adhere to all requirements outlined in the Directive when conducting electronic device searches nor properly document searches. Of the 100 from FYs 2018 and 2019 that we reviewed, 79 had one or more instances of non-compliance, which totaled 139 instances. [...] We also identified 32 EMRs [electronic media reports] not approved by a supervisor within 7 days.

The largest number of infractions came from two areas: no indication of whether the device's data connection was disabled (27) -- something that's supposed to prevent agents from intercepting incoming communications or accessing content stored in the cloud -- and no indication of whether a supervisor was present for advanced searches (44), which is a violation of CBP policy.

That's just the problem with the stuff that's (apparently incompletely) documented. Then there are the cases where no documentation occurred at all.

During site visit... we identified instances in which OFO officials used advanced screening equipment to conduct advanced searches of electronic devices without documenting these searches in TECS. For example, in reviewing DOMEX activity log entries from the three POEs, we identified 33 advanced searches that were not documented in TECS.

CBP officials said these didn't need to be tracked because they were not related to new searches, but rather to ongoing investigations, training, and "ongoing maintenance." As proof of this claim, the officials offered nothing.

We could not confirm these assertions because OFO did not have controls to ensure all advanced searches were traceable to the officer conducting the search.

As for seeing if these searches are actually resulting in any net security and public safety gains, the CBP is still sort of working on that. There are existing metrics the CBP could use, but it has simply chosen not to.

According to an OFO official, OFO does not see the benefit of receiving the outcomes of referrals, or tracking prosecutions and convictions, and does not have a system to track or receive this information. Without tracking final legal disposition of devices and information transferred to other Federal agencies, OFO cannot fully evaluate the program’s effectiveness or whether advanced searches are achieving their intended purpose to detect evidence and identify crimes.

The refusal to properly track and document searches also causes problems elsewhere.

For example, OFO equipment used to search computers [equipment name redacted] has not functioned since July 2018 due to network compatibility issues. Because of these technical issues, officers at POEs cannot conduct advanced searches of computers on-site.

Here's the punchline:

Despite technical issues, OFO renewed the software licenses for all equipment in 2019 and 2020, including for equipment that does not function, at a total cost of $330,629.

Which leads to yet another punchline in the OIG's recommendations:

We recommend the Executive Assistant Commissioner for the Office of Field Operations: a. Suspend the renewal of licenses for nonfunctional equipment, as appropriate.

You think?

The report concludes like the last one did. Recommendations for the CBP to something -- anything! -- to improve its tracking and documentation of phone searches. And like last time, the CBP has promised to get right on that… eventually. And we the people can all expect more of the same in the 2022 report, given the lack of progress since the last IG review.

Filed Under: 4th amendment, cbp, device search, dhs, inspector general

Accidentally Unsealed Document Shows Feds Are Using Reverse Warrants To Demand Info On Google Searches

from the searching-the-searchers dept

Not only is the government using "reverse warrants" to rummage around in your Google stuff, it's also using "keyword warrants" to cast about blindly for potential suspects.

Reverse warrants (a.k.a. geofence warrants) allow the government (when allowed by courts) to work its way backwards from a bulk collection of data to potential suspects by gathering info on all phone users in the area of a suspected crime. The only probable cause supporting these searches is the pretty damn good probability Google (and others but mostly Google) have gathered location data that can be tied to phones. Once a plausible needle is pulled from the haystack, the cops go back to Google, demanding identifying data linked to the phone.

This search method mirrors another method that's probably used far more often than it's been exposed. As Thomas Brewster reports for Forbes, an accidentally unsealed warrant shows investigators are seeking bulk info on Google users using nothing more than search terms they think might be related to criminal acts.

In 2019, federal investigators in Wisconsin were hunting men they believed had participated in the trafficking and sexual abuse of a minor. She had gone missing that year but had emerged claiming to have been kidnapped and sexually assaulted, according to a search warrant reviewed by Forbes. In an attempt to chase down the perpetrators, investigators turned to Google, asking the tech giant to provide information on anyone who had searched for the victim’s name, two spellings of her mother’s name and her address over 16 days across the year. After being asked to provide all relevant Google accounts and IP addresses of those who made the searches, Google responded with data in mid-2020, though the court documents do not reveal how many users had their data sent to the government.

This isn't the first time this form of warrant has been used to acquire data that might lead police to suspects. In 2017, public records enthusiast Tony Webster reported that police in Minnesota had used the same technique to attempt to work their way backwards to a fraud suspect. In that case, investigators served Google with a subpoena for data on everyone who had searched for the identity fraud victim's name. When Google refused to grant this request, the police approached a judge for permission to ask Yahoo and Bing the same question. This request was granted.

The same method was reported on again in 2020, when investigators used a keyword warrant to look for people who had searched the address of an arson victim. In this case, Google complied, returning only a single result relevant to the time, place, and search terms -- one that led police to a suspect with some pretty suspicious location data.

But these are not the only examples. And the broad search attempted here isn't even the broadest keyword search seen in court documents. Shortly after publication, the EFF arrived with an update:

After publication, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), highlighted three other Google keyword warrants that were used in the investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Not widely discussed at the time, the orders appear even broader than the one above, asking for IP addresses and Google account information of individuals who searched for various addresses and some terms associated with bomb making, such as “low explosives” and “pipe bomb.” Similar orders were served on Microsoft and Yahoo for their respective search engines.

As is the case in any warrant that has the word "reverse" appended to it (even colloquially), there are Fourth Amendment concerns. Casting a wide net to catch all possibilities before working backwards to a suspect may sound like canvassing a neighborhood after a crime, but the comparison is pretty weak. The wider the net, the higher the chance of arresting the wrong person. Unlike talking to people near a crime scene, reverse warrants dispense with alibis, investigators' intuition, and other efforts that reduce the chance of bagging the wrong suspect. And the demand for data makes everyone a suspect -- something analogous to hauling everyone in the area back to the police station for questioning. The data heads to the police who then try to make sense of the bulk collection.

Probable cause doesn't work that way. Just because it's a safe assumption Google has gathered data relevant to the investigation does not justify demanding all relevant information, regardless of its actual link to the crime being investigated. The sealing of warrants like these isn't just to protect the integrity of the investigation or to prevent suspects from being alerted. It's safe to say law enforcement is aware the public (and their often-unaware oversight) will take a dim view of these fishing expeditions. And the more often they're exposed, the more often suspects tracked down using these searches will challenge them.

Filed Under: 4th amendment, keyword warrants, reverse warrants, search results
Companies: google

Court Documents Show The FBI Used A Whole Lot Of Geofence Warrants To Track Down January 6th Insurrectionists

from the easier-to-do-when-most-people-are-in-an-area-illegally dept

The new hotness for law enforcement isn't all that new. But it is still very hot, a better way to amass a list of suspects when you don't have any particular suspect in mind. Aiding and abetting in the new bulk collection is Google, which has a collection of location info plenty of law enforcement agencies find useful.

There's very little governing this collection or its access by government agencies. Most seem to be relying on the Third Party Doctrine to save their searches, which may use warrants but do not use probable cause beyond the probability that Google houses the location data they're seeking.

Law enforcement agencies at both the local and federal levels have availed themselves of this data, using "geofences" to contain the location data sought by so-called "reverse warrants." Once they have the data points, investigators try to determine who the most likely suspect(s) is. That becomes a bigger problem when the area contained in the geofence contains hundreds or thousands of people who did not commit the crime being investigated.

These warrants have been used to seek suspects in incidents ranging from arson to... um... protesting police violence. They've also been used to track down suspects alleged to have raided the US Capitol building on January 6, 2021 -- the day some Trump supporters decided (with the support of several prominent Republicans, including the recently de-elected president) that they could change the outcome of a national election if they committed a bunch of federal crimes.

Plenty of those suspects outed themselves on social media. For everyone else, there's reverse warrants, as reported by Wired. (h/t Michael Vario)

Court documents suggest the FBI has been using controversial geofence search warrants at a scale not publicly seen before, collecting account information and location data on hundreds of devices inside the US Capitol during a deadly invasion by a right-wing mob on January 6.

While Google receives over 10,000 geofence warrants for location data in the US a year, those covering the Capitol breach appear to have been particularly productive, apparently enabling the FBI to build a large, searchable database in its hunt for the rioters.

Well, the documents do more than "suggest." The underlying warrants are likely still sealed, so some conjecture is involved. But other stuff has leaked out around the redactions and the sealing, showing the FBI was issuing warrants even while the attempted insurrection was still underway. The feds can move fast when needed, apparently. This is from a criminal complaint related to Mitchell Vukich -- one Capitol raider who not only tweeted he was inside the Capitol while still apparently in the Capitol ("I was one of the first 15 people in the #Capitol. Wild stuff. Be safe out there."), but was caught on several security cameras as he made his way through the building and seemingly ran off with some government documents.

According to records obtained through a search warrant which was served on Google, on January 6, 2021, in and around the time of the incident, a mobile device associated with mitchellvukich66@gmail.com was present at and in the interior of the U.S. Capitol on January 6, 2021.

However you may feel about the Asshat Revolution of January 6th, this isn't an ideal -- or even an acceptable -- way to conduct an investigation. Reverse warrants make everyone in the area a criminal suspect. Probable cause doesn't exist. It does in terms of Google: there's a highly probable chance the company has location data captured in areas under investigation. But law enforcement asks for all of it and works backwards to find suspects. Once it does that, it has probable cause to seek identifying information. But this method inverts the accepted (under the Fourth Amendment) formula for performing searches.

And, since the search warrant (as well as the results of the search) are still secret, we can only assume the FBI acted in good faith. It may not have.

“What might have happened is that the FBI got the anonymized data and just got straight back in touch with Google and said we suspect 90 percent of these people, so give us their IDs,” says Matthew Tokson, a law professor and Fourth Amendment expert at the University of Utah. “Or it may have been an atypical warrant where they said to Google: Give us not only the numbers but the account names, because we think we have probable cause on the bulk of them.”

And that's the concern law enforcement can keep from being addressed by asking for (and receiving) permission to seal warrant affidavits and discussions of this investigative technique, even though the technique is known and understood and already widely discussed in the public arena.

Suspects who think they can beat these warrants actually can't. A lot of that can be traced back to Google, which has never been completely honest about its location data harvesting. Some of that can be pinned on the suspects, who fail to understand that a factory reset only affects data stored on that device.

[C]ourt documents say that Jeffrey Register deleted photographs of his time in the Capitol and even claimed to have factory-reset his phone in the days after the breach to obscure his tracks. It was already too late; the FBI appears to have identified him from the Google geofence data in January…

That's the kind of thing that happens when you're cosplaying insurrection, OPSEC is an afterthought. For the people hunting you down, however, finding and acquiring reams of culpatory data is the thing they get paid to do. Getting high on your own supply of confirmation bias can have consequences, especially when it involves the impromptu violation of federal laws.

But at the end of all this is the skyrocketing use of reverse warrants to identify criminal suspects. That it has only resulted in a few false arrests is a miracle, not an endorsement of the investigative technique. While there has been occasional pushback against inverting the constitutional status quo, the large number of geofence warrants served to Google every year suggest law enforcement isn't too worried about losing access to a powerful tool that takes full advantage of private companies' apparently unslakable thirst for personal data.

Filed Under: 4th amendment, doj, fbi, geofence warrants, january 6th

Appeals Court Says State Secrets Privilege Means NSA Can Avoid Wikimedia Foundation's Unlawful Surveillance Allegations

from the create-enough-state-secrets-and-you-can-get-away-with-anything dept

The Snowden leaks exposing NSA dragnet surveillance prompted a lot of litigation. Cast a wide enough net and you're bound to snag it on some people's rights. The Wikimedia Foundation was one of several parties who sued over the NSA's seemingly unconstitutional collection efforts, targeting the agency's "upstream" harvesting of all data and communications straight from internet backbones.

To keep the case in court, Wikimedia had to plausibly allege its data and communications had been scooped up by the NSA. Fortunately, Ed Snowden had provided some pretty solid evidence for the Foundation. A leaked NSA presentation showed Wikipedia was included in the agency's HTTP dragnet:

Well, that leaked presentation, which included the Wikipedia logo as part of the traffic the NSA could snag from internet backbones wasn't enough to impress the district court, which dismissed the lawsuit. It was revived by the appeals court a couple of years later, which said it had alleged enough plausible harm and possible targeting to pursue its First and Fourth Amendment claims.

It went back down to the lower court, which did the same thing it did the first time around. The suit was again dismissed, this time because the district court felt the Foundation didn't bring enough factual allegations to the table. But then, how could it? The NSA basically said facts could not be introduced or argued.

On remand, the district court ordered jurisdictional discovery. But when Wikimedia sought evidence related to Upstream, the NSA invoked the state secrets privilege.

That's from the Fourth Circuit's second pass [PDF] at the Wikimedia lawsuit. This time around the Appeals Court says it disagrees the lawsuit should have been dismissed for lack of standing, but that determination makes no difference when the government says the subject matter is too sensitive to be sued over.

After a discussion of what may or may not be inferred from the limited amount of information disclosed or discussed publicly about this NSA collection, the Appeals Court says no one will be discussing it any further, at least not in this Circuit.

Wikimedia argued the government can't use the state secret privilege to evade its obligations to hand over information about dragnet surveillance, citing FISA and appellate precedent.

Relying heavily on Fazaga, Wikimedia claims that the third condition unambiguously encompasses the circumstances at hand: Wikimedia is an aggrieved person that made a motion before the district court under Federal Rule of Civil Procedure 37(a) to compel discovery of “materials relating to electronic surveillance.” Id. at § 1806(f). Wikimedia thus reads § 1806(f) as a free-floating right to obtain information related to the government’s electronic surveillance pursuant to any (and all) federal statutes or rules.

The Fourth Circuit says Wikimedia's interpretation is wrong.

Reading the third condition in context reveals that Wikimedia’s gloss makes for a shiny but ill-fitting shoe. Both parties agree that § 1806(f) may apply regardless of who initiated the suit. But we agree with the government that § 1806(f) describes procedures for determining the admissibility of electronic surveillance information only when the government seeks to use such evidence in a particular proceeding—whether civil or criminal. Thus, even assuming that Wikimedia is an aggrieved person, we conclude that it can’t use § 1806(f) to force the government to introduce electronic surveillance information into this case,

Even if the court were to agree with Wikimedia's interpretation, it wouldn't change anything. Determining that the NSA engaged in unlawful surveillance of Wikimedia would only require suppression of evidence collected unlawfully. That's not what Wikimedia is seeking here. It's asking the court to review evidence of NSA collection activities to determine whether or not Wikimedia can continue its lawsuit over alleged unlawful surveillance.

This may be a Congressional problem, albeit one created in an attempt to solve a problem, the Court points out:

Congress provided for judicial review of executive branch surveillance, but it did so to “strike[] a fair and just balance between protection of national security and protection of personal liberties.” The government’s reading of § 1806(f) fits that schema exactly. In that provision, Congress permits the government to use electronic surveillance evidence in court against a litigant while withholding materials related to that surveillance from that individual in the interests of national security. But in the same breath, Congress also allows an aggrieved person to challenge the government’s use of such evidence and have a court evaluate the lawfulness of the government’s actions.

Far from giving the government exclusive control over challenges to surveillance, we think this reading of § 1806(f) acknowledges the court’s role in preserving the compromise Congress made between individual rights and national security.

But the compromise requires more from plaintiffs like Wikimedia, the court continues. And it goes farther than shutting down legal challenges of FISA-approved surveillance. Sometimes, the government just gets to win.

[T]his problem isn’t unique to FISA. Every state secrets case presents the possibility that a plaintiff will be denied—in the interests of national security—a remedy available by law.

And no one gets to ask questions about secret surveillance techniques because they're secret, says the Fourth Circuit, closing the loop on the state secrets discussion and terminating Wikimedia's lawsuit for the second time.

Wikimedia claims that the NSA is acquiring all communications on a chokepoint cable that it is monitoring. There’s simply no conceivable defense to this assertion that wouldn’t also reveal the very information that the government is trying to protect: how Upstream surveillance works and where it’s conducted. Indeed, “the whole object of [Wikimedia’s] suit and of the discovery” is to inquire into “the methods and operations of the [NSA]”—“a fact that is a state secret.”

[...]

The district court thus correctly held that, in the face of the state secrets privilege, Wikimedia can’t continue to litigate the Wikimedia Allegation to support standing.

This probably isn't supposed to come across as a judicial shrug, but it sure feels like it.

To sum up, evidence of the Wikimedia Allegation establishes a genuine issue of material fact as to standing, but the state secrets privilege prevents further litigation of that issue.

The house wins. And it didn't even have to show its cards. Wikimedia may actually be able to allege an injury that gives it standing, but it can't do that without the government discussing its surveillance programs, which it won't. And the court can't make it do it.

Filed Under: 4th amendment, 4th circuit, ed snowden, nsa, state secrets, surveillance, upstream collection
Companies: wikimedia

Massachusetts Supreme Court Being Asked To Decide Whether Cops Can Engage In Warrantless Surveillance Of Social Media Users

from the cops:-we-of-course-we-can-because-no-one-has-told-us-we-can't dept

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that -- on the surface level -- don't really appear to be that difficult to answer. Here's how Thomas Harrison sums it up for Courthouse News:

The Massachusetts Supreme Judicial Court struggled Wednesday to figure out whether police can use trickery to conduct unlimited surveillance of social media accounts even if they have no reason to think that anyone did anything wrong.

I mean, phrased that way, it seems like this should be a "no." Should the government be able to surveill people suspected of nothing? What else could the answer be in this particular nation with this particular Constitution? And yet, the discussion continues because it's not quite as simple as that.

The government, however, sees this supposedly easy question and says "Yes." The government seems to think it's just that simple, even when it's pointed out that it's not quite that simple.

“The breadth of this is what is worrisome,” Justice Scott Kafker complained to Boston-area prosecutor Ian MacLean. “I get that cops are doing this to detect kiddie porn, but you’re saying they can just go out on social media exploring. You may be right, but it’s concerning that they can just go through people’s social media and go hunting. You’re saying they can do that, right?”

“Yes,” said MacLean, an assistant district attorney for Suffolk County. “In the same way cops can approach random people on a street corner.”

Yes. Cops can approach random people. A cop can walk up to anyone and start asking questions. No one's obliged to stick around but it's true cops can just hassle people without violating the Constitution. If they want to really dig into their doings, they need more. And comparing approaching random people to peering through their online lives is an analogy that only works if you also believe cops can rifle through whatever mail that random person might be carrying or page through their address book to see who they know and spend time with. And yes, those comparisons are as outdated as this simplistic attempt to turn long-term eavesdropping on social media into something as harmless as idle queries from cops who apparently have nothing better to do.

Here's what was actually happening, as described in an amicus brief [PDF] filed by the Massachusetts Association of Criminal Defense Lawyers.

The Boston Police Department has created and used an unknown number of accounts on Snapchat, a social media platform, to lure users into accepting their “friend” requests, so that the police can electronically surveil and record private communications sent by those users to their Snapchat friends. The police have done so with no judicial oversight; no probable (or frankly any) cause; and no constraints on what they will surveil or record, or how long their surveillance will last.

So, this isn't like approaching random people. This is more like an undercover cop hanging out at a house party. Subterfuge is involved, which is generally something necessary in criminal investigations with targeted suspects. And cops apparently believe subterfuge is acceptable, even when doing nothing more than trawling social media services looking for a bite. Courthouse News points to this long-standing belief there's nothing wrong with refusing to comply with platforms' terms of use:

A study back in 2014 revealed that 81% of police officers use social media in investigations, and 80% think it’s ethical to create fake accounts to get a suspect to friend them.

In this case, it's the Boston PD using fake Snapchat accounts to eavesdrop on communications senders likely presumed were private. And officers do it all without training, supervision, or oversight.

Other Boston police officers also use Snapchat as a part of their police work, despite the fact that none have been trained on how to use it. [...] There appear to be no policies or even supervision governing these warrantless, suspicionless electronic surveillance efforts by police.

And here's how that played out in this case:

Before gaining access to the defendant’s “Frio Fresh” private Snapchat account, the police officer did not even know that the account belonged to the defendant. After gaining access to the account -- using what the court assumed was a fake name intended to “resonate with the audience he was attempting to try to . . . snoop on,”-- the officer was able to use the content of the defendant’s private Snaps, which included an undisclosed number of videos and photographs, to identify the defendant as the account owner. For one month, the officer reviewed the content of every communication sent by the defendant to his private friend network without any judicial supervision and without any limitation on the scope or length of the surveillance or which communications he could record.

And that would seem to be a clear violation of constitutions, both national and local.

Article 14 and the Fourth Amendment preclude the police from unilaterally listening in on private telephone calls, sticking electronic devices on walls or in cars, or generally using new technology to learn what would otherwise be unknowable without the investment of substantial investigative resources. In addition, Articles 1, 10, and 16, and the First, Fifth, and Fourteenth Amendments, protect our fundamental rights as citizens of a free democracy to freely associate and speak together, and enjoy due process and the equal protection of our laws -- rights that are severely threatened by the police action in this case.

And yet the Supreme Judicial Court thinks it still may be ok for cops to engage in suspicionless, warrantless, long-term surveillance. Its arguments seem to boil down to a definition of privacy that relies heavily on a person's online popularity. If someone broadcasts a message to enough people, the expectation of privacy dissipates.

Justice Serge Georges objected that “a really big wedding isn’t a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say there’s a reasonable expectation of privacy?”

We'll have to see how this is resolved. The government apparently believes anyone with over 100 followers is fair game, even if investigators don't have any articulable reason to eavesdrop on these conversations. While there's little dispute that public posts on social media are fair game, private messages sent to others (even hundreds of others) aren't visible by those who haven't been invited to in-group. That may be the distinction that matters. If cops want to go "undercover" to listen in on non-public conversations between social media users, they probably should have something more to justify these activities with than "because we can."

Filed Under: 4th amendment, massachusetts, police, social media, warrantless surveillance