FBI And DOJ Personnel Confirm Agents Frequently Fudge Facts When Seeking FISA Warrants

from the respecting-the-fuck-out-of-the-rule-of-law dept

The fallout from the FBI's highly-questionable Carter Page investigation continues. The problems first came to light in an Inspector General's report which found the FBI did a lot of creative writing to continue its surveillance of Page, even after information came to light indicating the former Trump adviser was not operating on behalf of a foreign power.

The IG pointed out the FBI warrants relied on statements that were "inaccurate, incomplete, or unsupported by appropriate documentation." If the FBI did this in the Page investigation, it could easily be assumed the FBI had done it in other cases utilizing the FISA court. The protections erected to protect American citizens from surveillance by their own government were rendered useless by FBI statements the Inspector General was too kind to call lies.

The FBI has been ordered to overhaul its FISA warrant process by the FISA court. The FBI has agreed to do so, while still trying to downplay its serious violations as a long string of one-offs that apparently dates back at least 30 years. A new report from Charlie Savage and Adam Goldman for the New York Times opens with the recounting of the same sort of material omissions by the FBI during its hunt for an alleged Russian mole in the CIA. In that case, agents did the same thing, adding and subtracting evidence to continue unjustified surveillance.

This is, apparently, how the FBI performs its FISA business -- something acknowledged by the many agents and DOJ officials the reporters spoke to about the latest FBI/FISA fiasco.

The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.

The FBI is a law enforcement bureaucracy. Results are expected and no one gets participation trophies for investigations that go nowhere. To justify expenditures already on the books (and with an eye on funds not yet spoken for), agents have been adjusting narratives to ensure investigations keep running, even when the evidence appears to show there's nothing worth investigating.

The time limits on FISA warrants add to the problem.

F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.

Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.

These all-too-human weaknesses haven't been tempered by DOJ oversight or the FISA court. Since the court isn't adversarial, it's the FBI's word against the FISA court's judgment -- and the Court is often flying blind, cut out of the loop by national security concerns even as it attempts to regulate the business of national security.

Perhaps unsurprisingly, the FBI didn't feel its evidentiary cherry-picking was worthy of discipline. Fortunately, the Inspector General -- who has long complained about the lack of cooperation from the DOJ components he oversees -- referred one FBI official involved in the Carter Page surveillance efforts for criminal investigation.

The problems uncovered in the Page case aren't just an FBI problem. They're a law enforcement problem. Warrants are 90% boiler plate and 10% cherry picking, even during legitimate investigations. When investigations fail to uncover criminal activity, they can be artificially extended by omitting anything that might suggest the target isn't the criminal law enforcement thinks they are. Unlike other criminal cases, FISA evidence is tough to challenge. Whatever isn't obscured by parallel construction is hidden from the defendant (and possibly the judge) as being too "sensitive" to be discussed in open court.

The FBI's habit of abusing its powers isn't going to be reversed just because some of it has been made public. It takes meaningful oversight to make any changes stick. The current Inspector General takes his job seriously, but those above him in Congress often seem more concerned with political point-scoring than actually addressing the root cause of this abuse.

Filed Under: doj, fbi, fisa, fisa court, fisc, warrants

Kentucky Appeals Court Says Cops Need Warrants To Obtain Real-Time Cell Site Location Info

from the another-post-Carpenter-trimming-of-the-Third-Party-Doctrine dept

The Supreme Court's Carpenter decision added Fourth Amendment protections to historical cell site location information (CSLI). The Court recognized people had a privacy interest in their location info, even if it was collected and stored by third parties. This narrow finding -- that historical cell site info is covered by the Fourth Amendment -- has created ripples that are rocking the Third Party Doctrine boat, resulting in the Carpenter decision being applied to other records historically believed to be outside the Constitution's protections.

Kentucky's Court of Appeals has extended protections to real-time cell site location info -- something the country's top court expressly refused to do. (via FourthAmendment.com)

During an investigation of an armed robbery, police officers contacted the suspect's cell phone carrier and had an employee "ping" the phone to discover its location. The officers remained in contact with the carrier for the next hour-and-a-half, pinging the phone until they located the phone and the suspect. Officers intercepted the suspect upon his return to the town where the robbery took place. No warrant was sought.

Citing the Supreme Court's Carpenter decision (and a recent Massachusetts state court ruling), the court [PDF] agrees with the defendant: it's makes little sense to say tracking someone's past movements with historical CSLI is somehow be more worthy of Constitutional protection than actively tracking them using real-time CSLI.

We agree that the acquisition of real-time CSLI implicates significant, legitimate privacy concerns. As the Supreme Judicial Court of Massachusetts recently observed, when the police are able to ping a cell phone in order to discover its location, they also acquire the ability to identify the real-time location of its owner, which is “a degree of intrusion that a reasonable person would not anticipate[.]” Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019) (quoting State v. Earls, 70 A.3d 630, 642 (N.J. 2013)). This distinguishes the situation from one in which the police track an individual in the public thoroughfare or seek access to records held by a third party. “Although our society may have reasonably come to expect that the voluntary use of cell phones -- such as when making a phone call -- discloses cell phones’ location information to service providers, and that records of such calls may be maintained, our society would certainly not expect that the police could, or would, transform a cell phone into a real-time tracking device without judicial oversight.”

Tracking people using CSLI does more than reveal their movements in public spaces -- places they could theoretically be observed by anyone, including law enforcement. It also tracks their movements in private spaces, since their phones go wherever they go. This puts it in Fourth Amendment territory.

Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.

The government argued that the good faith exception should apply. The real-time pings were performed two years before the Supreme Court delivered its Carpenter ruling. Beyond that, the officers said the state courts had delivered no rulings on point that would have put cops on notice they needed warrants to obtain real-time CSLI.

Wrong, says the court. The standard that needs to be applied to gray areas where privacy rights might be implicated isn't the lack of a "no" from the courts. It's the absence of a "yes."

Unfortunately for our purposes, the Hedgepath Court did not rule on the matter because it was able to resolve the case on other grounds, but its commentary makes it clear that at the time Reed’s cell phone was pinged, there was no clearly established, binding precedent in Kentucky regarding real-time CSLI upon which the police could rely. In the absence of such precedent, the decision to proceed without a warrant and without a showing of exigent circumstances or other exception does not support a finding of good faith.

Very few courts are willing to draw the line here. Usually, good faith is granted if no case on point has directly established cops cannot do certain things. But officers should be held to a higher standard: one that demands they have clearly established legal standards before they act, not simply assume the lack of legal blessing (from the legislature or courts) will make their questionable actions acceptable.

Filed Under: 4th amendment, cell site location info, csli, kentucky, location info, warrants

CBP, ICE Hoovering Up Cell Location Data From Third Party Vendors To Track Down Immigrants

from the 'legal-gray-areas'-is-where-we-do-our-best-work dept

Supreme Court precedent says the government needs a warrant if it wants to get cell-site location info. This ruling altered the contours of the Third Party Doctrine, making it clear not every third-party record exists outside the Fourth Amendment's protections.

But that only applies to location info gathered from cell service providers utilizing the data they collect from cell tower connections. When the government wants to track the movement of individuals, it can do it, but it needs a warrant. When it just wants a bunch of location data on everyone in an area, somehow the warrant requirement disappears.

That's what CBP and ICE are doing. According to a report by the Wall Street Journal [paywall], the agencies are buying location info in bulk from third-party vendors. No warrant required.

The Trump administration has been using commercial data that tracks millions of smartphone users' locations to help enforce its policies on immigration and deportation, according to a report Friday from the Wall Street Journal.

The database, owned by a company called Venntel Inc., collects information from run-of-the-mill games, weather and shopping smartphone apps where users have agreed to share their location, according to the report.

This isn't cell-site location info, technically. But a lot of this location data wouldn't exist without cell towers. The CBP believes this is all very legal, as it does not target any one person and, in a rather stupid assertion, claims the data is "pseudonymized." This means the location data isn't linked to identifying info about the cell phone's owner. But that word means even less than the usual "anonymized." The application of analytic tools can strip this anonymization away, even without additional data pulled from other sources.

If the data were truly anonymized, it would be worthless: just a bunch of data points unrelated to anything. But it obviously isn't anonymized -- or at least isn't that way for long after the agencies obtain it -- or the government wouldn't be saying things like this:

Sources told the Journal that Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two divisions under the Department of Homeland Security (DHS), have used the location data to help them identify and locate those who may have entered the country unlawfully, whom they later arrested.

Both agencies have been using this data since 2017, according to contract info obtained by the Wall Street Journal. For now, it's still legal to obtain this data from third parties without a warrant. It's unlikely this data will see a successful challenge any time soon, not if it's coming from third parties that have been given explicit permission to collect location data.

But that doesn't mean current protections for cell-site location info won't eventually expand to cover third parties like Venntel. Voluntarily sharing location info with a company isn't the same thing as voluntarily sharing data with the government, no matter how much the government argues there's no expectation of privacy in records freely given to third parties. Many people feel more comfortable sharing data with companies, since the end result tends to be things like targeted ads, rather than targeted investigations.

Oddly, CBP claims the data is not "ingested in bulk," which seems to run counter to how this data is purchased. If it's truly anonymized, the CBP has no choice but to obtain it in bulk and work from there to determine who it's targeting for removal. Perhaps the CBP's definition of "bulk" is different than the common definition of "bulk." Maybe the agency believes that throwing up a couple of geofences prevents this from being a "bulk" collection. If so, the government is wrong. Anything that provides massive amounts of data from multiple sources is a, by definition, a "bulk collection."

This is working for the government right now. But sooner or later, this haystack-building method will likely find itself on the wrong side of the Constitution, especially when courts are informed of just how meaningless the word "anonymized" is in the context of bulk location data.

Filed Under: 3rd party doctrine, cbp, cell site location info, commercial purchases, csli, dhs, ice, location tracking, privacy, warrants

Colorado Appeals Court: Three Months Of Surveillance Via Pole-Mounted Camera Is Unconstitutional

from the try-to-break-it-up-into-more-constitutional-chunks-I-guess dept

How much warrantless surveillance is too much surveillance? It depends on which court you ask.

Public areas, which include people's front doors and unfenced yards, have very little in the way of privacy expectations. Consequently, there's a lot of warrantless surveillance aimed at these areas, usually in the form of pole-mounted cameras. While warrants could be obtained, they usually aren't. And, in some cases, the surveillance occurs during the early stages of an investigation where enough probable cause hasn't been established to secure a warrant even if investigators thought they might need one.

In 2014, a Washington federal court judge said six weeks of pole-mounted surveillance was unconstitutional without a warrant. This surveillance wasn't just passive. The camera could be controlled by officers while it was recording in addition to providing investigators with dozens of hours of recordings. This was too much for the federal court, which suppressed the video evidence obtained with the utility pole-mounted camera.

A couple of years later, the Sixth Circuit Court of Appeals said indefinite surveillance from a pole-mounted camera doesn't violate the Fourth Amendment. It reasoned that if an ATF agent could spend an 8-hour shift surreptitiously monitoring a suspect's rural Tennessee home without violating the Constitution, the proxy surveillance that went uninterrupted for ten weeks didn't violate the Constitution either. What's Constitutional for eight hours doesn't suddenly become unconstitutional when it's 1,680 hours.

Six weeks is bad, ten weeks is OK… and in a case from earlier this year, eight months of continuous surveillance falls on the wrong side of the Constitution. The federal court read the Supreme Court's Carpenter decision to expand Fourth Amendment protections (specifically, expectations of privacy), even if that case only dealt with cell site location info. Also at play here were the camera's features, which allowed investigators to remotely access and control the camera, rather than just replay recordings.

A recent decision [PDF] from the Colorado state appeals court sort of splits the difference. More than three months of continuous surveillance by a utility pole-mounted camera is too much for the Constitution to bear. (via FourthAmendment.com)

Like two of the other cases above, the camera's movement could be controlled remotely by investigators as it recorded. This camera also did something the average passerby couldn't do (I mean, in addition to staring at someone's house for 13 weeks straight): it could see above the suspect's six-foot privacy fence to the end of the driveway near the house's garage and entrance.

Nonetheless, the government claimed these areas that were hidden behind the privacy fence could be viewed from certain angles by the proverbial "man on the street" the investigators claimed their camera emulated. Photos introduced during the hearing showed the end of the driveway could be viewed through "thin gaps" between the boards of the privacy fence, as well as from exterior stairways of nearby apartments. The court doesn't think much of these hypotheticals.

We are unpersuaded by the People’s arguments that the area of Tafoya’s driveway behind his privacy fence hypothetically could be seen by a next-door neighbor peering through a small gap in the privacy fence or by the adjacent apartment dweller on a second-story private outdoor stairway (or, for that matter, by someone in a helicopter, or by someone looking through the camera on a drone).

This argument ignores the improbability that a neighbor would peer through a gap in a privacy fence or stand on his or her outdoor stairway for three months at a time. And helicopters and publicly available drones do not remain in flight for three months at a time. Crediting the People’s argument would mean there is no temporal cap on how many months or years the police could have continued the video surveillance of Tafoya’s property.

And for all the concerns about how much long-term surveillance via cell site location data tells the government about their surveillance targets, the court reminds everyone pointing an unblinking eye at someone's home for weeks at a time is just as invasive. It quotes from a South Dakota Supreme Court opinion:

[t]he information gathered through the use of targeted, long-term video surveillance will necessarily include a mosaic of intimate details of the person’s private life and associations. At a minimum, it could reveal who enters and exits the home, the time of their arrival and departure, the license plates of their cars, the activities of the occupant’s children and friends entering the home, information gleaned from items brought into the home revealing where the occupant shops, how garbage is removed, what service providers are contracted, etc.

[...]

[L]ong-term video surveillance of the home will generate “a wealth of detail about [the home occupant’s] familial, political, professional, religious, and sexual associations.” The recordings could be stored indefinitely and used at will by the State to prosecute a criminal case or investigate an occupant or a visitor.

The evidence -- which apparently includes a large amount of drugs -- is suppressed and the conviction overturned. The government gets another chance to prosecute but its case appears to rest largely on the surveillance recordings the court says it can no longer use.

Filed Under: 4th amendment, colorado, pole-mounted camera, privacy, surveillance, warrants

Supreme Court's Warrant Requirement For Cell Site Location Info Apparently Killed Another Domestic Surveillance Program

from the i,-for-one,-welcome-a-Supreme-Court-killing-spree dept

Oh, guess what? The NSA has ended another third party data collection -- one it hopefully ended right after the Supreme Court's Carpenter decision was released. Spencer Ackerman fills in the details at the Daily Beast.

U.S. intelligence agencies have stopped collecting cell-phone location data without a warrant on people inside the United States, the office of the director of national intelligence has affirmed.

Sounds good. Sounds like the NSA probably doesn't have a legal way to continue this warrantless collection now that the Supreme Court has ruled historical cell site location info is covered by the Fourth Amendment. It's been nearly 18 months since this decision was released. The letter sent to Ron Wyden by the ODNI indicates the Intelligence Community abandoned its harvesting of CSLI shortly after that ruling.

But, as Ron Wyden points out, the ODNI isn't willing to state publicly that the Supreme Court's decision was a contributing factor to its mothballing of the CSLI collection.

“The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the PATRIOT Act to track Americans,” Wyden said in a statement provided to The Daily Beast. “At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance…"

This is another of the NSA's Section 215 collections. The most famous collection under Section 215 was the one exposed by the first Snowden leak: phone call metadata. This collection was retooled by the USA Freedom Act, which forced the IC to approach telcos with targeted orders supported by reasonable suspicion. The NSA was apparently so used to just collecting it all, it couldn't manage to find a way to obtain this data without violating the law. It was abandoned and the NSA recommended to have it shut down forever. The FBI doesn't like that idea, though, and wants Congress to give the phone metadata collection -- along with everything else harvested under Section 215 -- a permanent reauthorization.

At least that's not going to happen. It looks like the phone metadata collection will now become the only thing that's truly forever: dead.

A forthcoming bill from the House judiciary and intelligence committees will reauthorize three other surveillance measures set to expire, but will not permit the Call Detail Records program to survive. With expiration set for Dec. 15, whatever the Senate does the Call Detail Records program, barring some eleventh-hour legislative chicanery, looks like the rarest of birds: a post-9/11 surveillance activity on course for extinction.

You can draw a straight line from the Snowden leaks to the death of this collection. The Patriot Act gave the NSA a handy way to spy on Americans. 14 years later, the USA Freedom Act scaled back that power, altering the program enough that the NSA couldn't seem to find a way to collect these records without violating the law. Five years after this minor surveillance reform effort, the program will be put out of its misery.

But the NSA has plenty of other collection authorities that will remain unchanged and mostly unexamined. Even this Section 215 collection -- which seemingly violates Supreme Court precedent -- hasn't received much public discussion. It seems clear warrantless collection of cell site location info is now illegal, but until more details head Wyden's way, we probably should assume the Office of Legal Counsel is trying to assemble a rationale that allows the Intelligence Community to route around the Carpenter roadblock.

But, if nothing else, the phone metadata collection is dead. Forever. And that's worth celebrating.

Filed Under: 4th amendment, cell site location info, csli, location info, nsa, odni, ron wyden, surveillance, warrants

Georgia Supreme Court Says Cops Need Warrants To Search Vehicle Crash Data Recorders

from the enhanced-privacy-expectations dept

A couple of years ago, the Georgia state appeals court interpreted the Supreme Court's Riley decision to cover data pulled from vehicles after accidents. If warrants were required to search cellphones -- thanks to their ability to store all sorts of personal information -- it stood to reason warrants should be needed to access other data not visible to the naked eye.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

The court told law enforcement that warrants should be considered must-haves in nearly every situation involving data belonging to someone else. The contents of a vehicle's black box are tied to the vehicle, not any third party. In addition, the data recording is mandated by the government, making this an involuntary process. The Third Party Doctrine only covers information voluntarily given to third parties. The data collection that occurs when a vehicle's air bag deploys isn't voluntary.

Georgia's highest court has now come to the same conclusion, but in a different case. (via FourthAmendment.com) It doesn't cite the Riley decision, but it does point to the more recent Carpenter decision, which established a warrant requirement for historical cell site location info. Not all black boxes record GPS location, but that's not really the point. The point is the information belongs to the car's owner. In order for the government to retrieve and interpret it, it has to enter a person's vehicle, attach a device to the car, and download the info. All of these steps implicate the Fourth Amendment, even though this particular issue hasn't been litigated at the federal level.

The key here is the expectation of privacy. Also important in this case is the testimony of officers who undercut their own claims of inevitable discovery by asserting they almost never sought warrants to obtain black box data. A warrant was obtained one day after the data had already been downloaded and examined. The state Supreme Court doesn't consider applying for a warrant after the fact to be the same thing as applying for a warrant before performing a search.

The decision [PDF] follows the steps of the investigation, noting the events that undercut the lower court's application of the inevitable discovery warrant exception. This is what happened at the crash scene:

Investigator Jason Hatcher entered the passenger compartments of both vehicles, attached a crash data retrieval (CDR) device to data ports in the cars, and used the CDR to download data from the ACMs. The data retrieved from the Charger indicated that, moments before the collision, Mobley was driving nearly 100 miles per hour.

The warrant wasn't actually obtained until the next day when a different investigator joined the investigation.

The next day, Investigator Bryan Thornton joined the team of officers investigating the collision. He discussed the case with the officers who had responded to the crash, visited and personally inspected the scene of the collision, and then applied for a warrant to search the Charger and Corvette and to physically remove and seize the ACMs from both vehicles. When Investigator Thornton made his application for a warrant, he was aware that Investigator Hatcher already had retrieved the data from the ACMs and that the data indicated that the Charger had been traveling at an excessive rate of speed.

The court notes that the warrant application did not rely on data already obtained by investigators to establish probable cause for the search. But it also notes Inspector Thornton added something to his warrant application that could only have been discovered via the search that had already occurred: the Charger's high rate of speed.

[A]lthough he did not testify explicitly about his knowledge of the substance of that data at the time he applied for a warrant, he said that the data was the basis for the conclusion that Mobley committed vehicular homicide in the first degree (as opposed to some lesser offense or no offense at all). In the warrant application, Investigator Thornton represented that the ACMs likely contained evidence of vehicular homicide in the first degree. His testimony at the hearing implies, therefore, that he had a meaningful awareness of the substance of the data when he made the warrant application.

The officers argued recovery of crash data was routine in these investigations. This is likely true. But it's also true investigators almost never obtained warrants for this data, making it far less likely the data would have been obtained Constitutionally. A certain amount of intrusion into a person's property -- in this case, a car -- is needed to retrieve the data, which should have put officers on notice warrants were necessary.

Although Mobley disputes the idea that he had no reasonable expectation of privacy in the data retrieved from the ACM on the Charger, we find it unnecessary to resolve that question. To retrieve the data, Investigator Hatcher entered the passenger compartment of the Charger and connected a CDR device with the ACM by way of an onboard data port. A personal motor vehicle is plainly among the “effects” with which the Fourth Amendment—as it historically was understood—is concerned, see United States v. Chadwick, 433 U.S. 1, 12 (4) (97 SCt 2476, 53 LE2d 538) (1977), and a physical intrusion into a personal motor vehicle for the purpose of obtaining information for a law enforcement investigation generally is a search for purposes of the Fourth Amendment under the traditional common law trespass standard.

There is no warrant exception that excuses the warrantless search. The automobile exception doesn't apply because the vehicle was immobilized by the accident and under the control of law enforcement for the duration of the investigation. There were no exigent circumstances for the same reason. The likelihood of evidence being destroyed or going missing was almost nil.

And the reason inevitable discovery does not apply is because there's no reason to believe investigators would have inevitably discovered the damning evidence legally.

In its order denying the motion to suppress, the trial court concluded that an application for a warrant was inevitable, a conclusion based entirely on its finding that Investigator Thornton “always seeks such a warrant in accidents involving fatalities.” Investigator Thornton, however, was off duty on the day of the collision, and there is no evidence that his involvement in the case was even contemplated until the next day. That a particular officer always seeks a search warrant in similar circumstances cannot logically show that a warrant was inevitable at a point in time prior to that officer becoming involved in the case. Equally important, Investigator Thornton did not actually testify that he always obtains warrants in fatality crash investigations. To the contrary, he said that he always retrieves ACM data in such investigations, most commonly without a warrant at the scene of the crash. Investigator Thornton testified that, if ACM data could not be retrieved at the scene, he would seek a warrant, but that hardly suggests that warrants always or usually are sought, considering that the routine practice is to retrieve data at the scene without a warrant.

Warrants are far from "inevitable" in crash investigations, according to officers' own testimonies. Applying this exception -- as the lower court did -- is clearly erroneous. It gives the officers credit for work they almost never do.

With the lower court's decision reversed, the warrant is suppressed. In Georgia, cops need warrant to search vehicle black boxes. This shouldn't be that tough to comply with. Crashes severe enough to warrant criminal charges will usually result in immobilized vehicles and a large police presence. Time is on law enforcement's side. And if it has the time, it can certainly get a warrant.

Filed Under: 4th amendment, georgia, searches, vehicle crash data recorders, warrants

Magistrate Judge Rejects Govt's Attempt To Use A Stored Records Law To Seek Future Cell Site Location Info

from the thanks-for-the-warrant-but-you're-still-doing-it-wrong dept

Someone's keeping the government in line in Idaho. Federal judge Ronald E. Bush isn't just skimming warrant applications and signing them. He's actually reading them and applying the law. This probably isn't endearing him to federal agents.

In May of this year, he told the government that forcing a suspect to unlock a phone using swipe pattern was unconstitutional. He told the government the same thing a couple of months later when it was attempting to get a court order compelling fingerprint production. One of these was rolled back by the district court, but it appears warrant applications in Ronald Bush's court are receiving more scrutiny than they are elsewhere.

Judge Bush's latest pushback deals with cell site location info. This information, collected by cell service providers, used to be acquired without a warrant. Up until the Supreme Court's 2018 decision, CSLI was considered a third party record that could be obtained with only a subpoena. Historical location data now needs warrants, hence these warrant applications -- one of which Judge Bush has rejected [PDf}.

Bush says the Stored Communications Act (SCA) warrant is fine as long as the government sticks to, you know, stored communications. But the government wants to do more under this same authority. Since the government doesn't appear to know exactly where its suspect is located, it wants to use the SCA to track the location of the suspect's phone as location records are generated.

The second application, however, seeks not historical location information or other historical subscriber data, but rather seeks thirty days of prospective “location information” regarding the target telephone. In other words, the Government seeks a warrant under the Stored Communications Act to permit the Government to gather future information, which the application defines to include “all available E-911 Phase II data, GPS data, latitude-longitude data, and other precise location information, as well as data about which ‘cell towers’ (i.e., antenna towers covering specific geographic areas) and ‘sectors’ (i.e., faces of the towers) received a radio signal from the cellular telephone.” Such location information is sometimes referred to as “real-time cell-site location information” or “real-time CSLI.”

As the judge points out, the SCA does not cover records that haven't been created yet, much less "stored."

The Court will deny the second application because the SCA does not authorize issuance of a warrant to allow the Government to collect prospective location information.

There is an option the government can use to collect real time CSLI. Under Rule 41, the government can obtain this data, deploying the warrant to collect the info as it comes in. But the government doesn't want to use its Rule 41 powers because they're a bit more limited in scenarios like these. SCA warrants can compel production from anywhere. Rule 41 allows tracking of an individual's movements via a device (or a third party) but the "device" must be installed in the district. Since the government doesn't actually know where the targeted phone is located, it cannot meet the venue requirements needed to secure judicial permission.

The government's argument is basically, "If you don't let us do this the wrong way, there's a possibility we won't be able to do it at all."

The Government notes that “if the Court declines to issue the warrant, the Government will have to rely on other less-direct and potentially less-effective methods to find” the subject.

The court agrees this might be more difficult for the government.

The Court will accept the Government’s representation that the task of locating the suspect may be more cumbersome if the prospective location information warrant is not granted.

But it isn't the court's job to make the government's work easier.

[T]he relative expediency or arguable cumbersomeness of the method of obtaining the location information sought by the Government is not a basis to rule that the SCA allows for something which its language otherwise does not permit.

The government will have to cut investigative corners somewhere else. Judge Bush's court isn't going to help out by participating in the government's self-induced SCA delusion. Stored records aren't records that don't exist presently and still have a chance of never existing, no matter how much the government believes they are.

Filed Under: 4th amendment, 5th amendment, cell site location info, csli, location info, ronald bush, sca, stored communications act, warrants

Appeals Court Takes Immunity Away From Cop Who Entered A House Without A Warrant And Killed The Family Dog

from the as-it-should dept

Qualified immunity has been stretched to cover a wide variety of rights violations, law enforcement misconduct, and excessive force deployments. Every so often, a federal court will refuse to extend this courtesy to sued officers, but these decisions are relative rarities.

Every so often, officers engage in such egregious violations that no court is willing to give them a pass on their bad behavior. This case [PDF], handled by the Sixth Circuit Court of Appeals, is one of those. It details a case where officers went out to put someone in protective custody and ended up killing some random person's dog. In between, officers went to the wrong address and entered a house without a warrant. Here's how it started:

On November 20, 2014, a probate judge had ordered a man named Donte Cox to report to Allegiance Health Hospital, as he had failed to pick up his prescribed medication. If Cox did not appear at Allegiance Health, the order stated that police officers would take Cox into protective custody and transport him to the hospital. When Cox failed to appear, the Jackson Police Department dispatched Officers Matthew Peters and Lewis Costley to look for Cox at several addresses in Jackson, including 511 South Blackstone Street and 513 South Blackstone Street. Cox did not live at 513 South Blackstone Street in 2014, and it is unclear from the record whether Cox had ever lived at either Blackstone address.

The info the officers had was, at best, terrible. It gave them the power to approach a bunch of different residences but no knowledge whatsoever about what they were expected to find… other than someone who hadn't picked up a prescription.

So, the two officers approached the first set of addresses, located across from each other. Both addresses were clearly marked on the exterior doors which made it clear these were two different units. Officer Costley did his job correctly.

Costley went to the door labeled “511,” and Peters went to the door labeled “513.” Costley knocked on the door at 511 Blackstone, waited, and did not receive a response, so he did not enter the residence.

Officer Peters did not.

Peters, in contrast, approached the door at 513 Blackstone and walked inside without knocking or ringing the doorbell.

And he admitted all of this while testifying:

Peters admits he had no search warrant, no consent to enter the home, and no exigent circumstances that would have permitted him to enter the home absent a warrant or consent.

Instead, he tried to excuse his behavior by claiming he had no idea what address numbers on front doors signify.

Peters contends that the front screen door was slightly ajar and there was no solid door behind the screen door, so he presumed that the door led to a common front entry for multiple apartments, despite his acknowledgement that only one house number— 513—was listed next to the door.

The people inside 513 knew it was not a "common front entry." So, they had no idea who was letting themselves into their residence. Their dog noticed the intruder, who did not identify himself as a police officer immediately. Not that it would have mattered to the family's dog, which only knew Officer Peters was not someone he recognized and was in a house he didn't belong in. The dog responded to the rapidly-evolving situation like any dog would: he ran in the direction of the intruder and growled.

Standing inside the foyer, Peters knocked on the interior wall of the apartment. After the knock, the audio recording from Peters’s body microphone captures Harris yelling from the living room, “Who the f–ck is it?” (Peters Audio at 1:39.) Peters responds, “Police.” (Id. at 1:42.) Right after Harris yells and Peters responds, the audio recording captures the sound of Kane running and growling for four seconds. (Id. at 1:43–1:47.) Peters then contends that he said, “Get your f–cking dog,” but Harris contends that he could not hear Peters saying anything to him. (Peters Dep., R. 45-7, PageID 594.) The audio recording captures Peters saying “. . . [expletive] dog,” but the recording quality makes it difficult to discern the full quote or how loudly Peters was speaking. (Peters Audio at 1:47–1:48.) Kane continues to make noise, though it is unclear whether the sound is running, growling, or some combination of the two. Within two seconds of Peters saying “[expletive] dog,” the audio recording captures him shooting and killing Kane.

This six seconds is the point of the dispute. The dog's owner claims he tried to run down the stairs to get his dog but the officer killed the dog before he could get there. Officer Peters -- who had already engaged in a warrantless entry -- claimed the dog ran downstairs and began "growling, snarling, and biting at my feet and ankles" within this six-second period. He also claims he yelled for someone to get the dog and "kicked at it" before he decided to shoot it. The audio recording does not appear to contain this yell for assistance.

Officer Peters also claimed the dog's owner only came part of the way down the stairs before stopping and yelling at the officer, rather than attempting to get the dog.

Peters contends that, after he yelled, Harris appeared at the top of the stairway, ran a third of the way down the stairs, and started yelling at Peters, though the audio recording does not capture Harris yelling at this point.

And more inconsistencies:

After the shooting, the audio recording captures Harris saying, “Why you shoot my dog, man?” (Peters Audio at 1:52.) Peters says, “He was [expletive] biting me, man.” (Id. at 1:53.) But when deposed, Peters admitted that Kane never bit him. There, he testified that Kane was “biting at [him],” but Kane “did not make physical contact with [his] leg.” (Peters Dep., R. 45-7, PageID 592, 595.)

The family sued over the warrantless entry and the killing of their dog. The district court denied immunity on all counts. So does the Appeals Court, which finds much of what the officer did unreasonable, and suggests a jury might have trouble reconciling his actions with the Fourth Amendment.

Peters contends that when he entered through an unlocked door in a multi-occupant building, he believed that the door would lead to a foyer from which he could access the doors to multiple interior units. In his deposition, Peters testified that, in Jackson, “[t]here are countless large homes with multiple apartments inside of that large building most of which you have to go into to get to the individual apartments, be it one, two, three, A, B, C,” and, in his experience, the address markings on the exterior of such buildings would not always indicate that there were multiple units inside. (Peters Dep., R. 45-7, PageID 594.) But Peters also agreed that he had received no information from dispatch indicating that such subunits existed in this apartment, and that he was not asked to look for an individual in 513A, B, or C—he was simply told that Cox might be at 511 or 513 South Blackstone Street, each of which had its own door and address marking on the exterior of the home. The fact that some houses in Jackson have this design does not preclude a jury from finding that Peters was unreasonable in assuming that this house had such a feature.

The photographs of the home’s exterior further undermine the reasonableness of Peters’s belief: the clear address markings, individual mailboxes at each door, and the doorbell outside of the door marked 513 cut against the idea that this front door led to a common area rather than the entryway of an individual’s home.

[...]

Because there is a genuine dispute of material fact regarding whether Peters’s belief that he had not entered the plaintiffs’ home when he walked through their doorway was reasonable, we affirm the denial of qualified immunity as to this claim.

The same goes for his decision to shoot the family's dog. Peters tried two arguments to get out of being held responsible for this shooting. Neither of them work.

Despite this court’s holding in Brown, Peters argues that the right at issue was not clearly established for two reasons, neither of which is convincing. First, Peters argued that Brown was issued in 2016, which is later-in-time than the conduct at issue and therefore cannot suffice to clearly establish the law. This argument misreads Brown, where we unequivocally stated that the “constitutional right under the Fourth Amendment to not have one’s dog unreasonably seized . . . was clearly established in 2013.” Brown, 844 F.3d at 566–67. Because the right was clearly established in 2013, it was also clearly established when Peters shot Kane on November 28, 2014.

It's pretty bad when you can't even cite precedent right. It's worse when the precedent you cite undercuts your argument. But Peters' other argument is somehow even worse than this citation failure.

Second, Peters argues that he could not have been expected to anticipate our recognition in Smith v. City of Detroit, 751 F. App’x 691, 692 (6th Cir. 2018) that unlicensed dogs are property under the Fourth Amendment. Had Peters argued that he shot Kane because he believed Kane was unlicensed and that Harris and Richards had no property interest in an unlicensed dog, this argument might have some force. But Peters gives no indication that he knew or even considered whether Kane was unlicensed at the time of the shooting. [...] Thus, Peters’s ability to anticipate this court’s ruling in Smith has no bearing on whether Peters should reasonably have known that his actions were unconstitutional.

Be more reasonable, says the court. None of your arguments are at this point. Back it goes to the district court to do a few more rounds of motions and testimony to clear up the disputed narratives. Given the testimony Officer Peters has already handed out, it seems unlikely he'll be able to talk a jury into taking his side. This is going to end up costing taxpayers some money, even though the officer is now officially liable for his actions.

Filed Under: 4th amendment, donte cox, jackson police department, matthew peters, qualified immunity, warrants

Unsealed Warrant Shows SFPD Officer Misled Court About Journalist's Occupation

from the law-enforcement-still-the-best-at-law-stuff dept

One of the search warrants used by the San Francisco police department to go after a journalist for documents a PD employee leaked has been released. This is only one of the five warrants targeting "stringer" Bryan Carmody, whose house was raided by the SFPD back in May.

This search warrant targeted Carmody's phone records. It was granted on March 1st, allowing the SFPD to obtain records from Verizon. This was done supposedly to track down which cop called Carmody over a two-day period prior to the release of the leaked document to California news agencies.

Earlier this month, Judge Rochelle East quashed the warrant, saying it showed the SFPD omitted key info that would have made it clear it was targeting a journalist -- something forbidden by California's journalist shield law. The judge also unsealed the warrant. It has finally been released and it shows SFPD Sgt. Joseph Obidi writing his way around the fact that Carmody is a journalist.

In the application [PDF], Sgt. Obidi cut-and-pasted part of Carmody's LinkedIn profile. The officer included the part that said Carmody was a "Freelance Videographer." But he excluded the part that said Carmody "has decades of experience shooting, editing and reporting news," as well as the long list of new agencies he had worked with. It also excluded the fact that the SFPD had issued a press pass to Carmody -- one that was still current when the warrant was obtained.

This was pointed out during the hearing about the warrant by Judge East, who said the existence of a press pass should have told the SFPD to steer its investigation away from Carmody.

While under other circumstances in other cases there may be some question as to what a journalist is. In this case I think there is none. The fact that he has a press pass from the San Francisco Police Department indicates to this Court that he is a journalist.

The narrative in the application shows the SFPD suspected an officer or SFPD employee. Yet, the Department decided to go after a journalist for possessing and distributing a document that was illegally leaked by one of its own. It could have limited its investigation to its own staff and their phone records. But it didn't, and now it's only a few weeks away from seeing all of its warrants tossed (and hopefully unsealed) and presumably less than 365 days away from being sued by Bryan Carmody.

Filed Under: 4th amendment, bryan carmody, journalism, lies, sfpd, warrants

New Hampshire, ACLU Fighting Back Against DEA's Warrantless Access To Sensitive Medical Records

from the you-can-have-your-rights-or-our-failed-drug-war,-citizens dept

The DEA regulates controlled substances, including medications containing controlled substances. The DEA has taken this to mean any number of medical privacy laws don't apply to it. If the DEA was forced to respect the law, well, it might just mean some drug dispensation wouldn't be quite as closely regulated as the agency wants it to be.

Since drugs have a war on them, the DEA has been given a long leash to investigate drug use/abuse. The DEA has argued in court that federal law overrules state-level privacy provisions. It has also done less legal things, like impersonate medical board investigators to gain access to denied records and ignored warrant requirements instituted by state legislatures.

This last tactic worked -- up to a point -- in Oregon. It resulted in the state suing the DEA for ignoring state warrant requirements when pulling records from Oregon's Prescription Drug Monitoring Program. The same thing is happening in New Hampshire. The fed DOJ got stiff-armed by the state DOJ when seeking warrantless access to medical records.

New Hampshire received a warrantless search demand from the federal Drug Enforcement Administration (DEA) for two years of a patient’s PDMP records last year. The N.H. Department of Justice correctly and courageously refused to comply, because doing so would violate the state law requiring a warrant and infringe on privacy rights. After the DEA sued in court, they stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution.

The ACLU has stepped in to argue in favor of requiring the DEA to use warrants. Its amicus brief [PDF] argues the records contained in the PDMP are not third-party records requiring nothing more than a subpoena. And even if the court does determine they are third-party records, the Supreme Court's decision in the Carpenter case has changed the contours of third-party record access.

The prescription records at issue in this case reveal intimate, private, and potentially stigmatizing details about patients’ health, including details of those patients’ underlying medical conditions. For that reason, as with other medical records, people have a reasonable expectation of privacy in them. As the Supreme Court explained in Carpenter v. United States, when law enforcement seeks records from a third party in which the subject of the investigation has a reasonable expectation of privacy, use of an administrative subpoena is unreasonable under the Fourth Amendment, and a warrant is required instead. Such is the case here.

While the records may be held by a third party, there's nothing voluntary about the records' creation. These records are created by healthcare professionals to comply with a state mandate. Patients do not volunteer to hand over this sensitive information. The only way to opt out is to never see a doctor.

The records expose at least as much personal information as the location records protected by Carpenter. The Supreme Court didn't believe going through life without a cellphone was a realistic option for citizens. I'm sure the Supreme Court would similarly conclude going through life without ever consulting a physician to be even more unlikely.

The DEA's position isn't based on an investigative need. Unless you're just fishing around, warrant requirements won't slow down the DEA much during investigations. It's just that the DEA is used to doing things its way, which is often the easiest way that involves the least amount of oversight possible.

Unfortunately for New Hampshire residents, trying to make the DEA respect state-level warrant requirements hasn't worked out yet. Oregon's lawsuit against the DEA ended with a defeat in the Ninth Circuit Appeals Court, which held that federal subpoena requirements trumped state-level demand for warrants. Sooner or later, this issue is going to end up in the Supreme Court, but for now, the DEA can still rely on subpoenas to hoover up sensitive patient records.

Filed Under: 4th amendment, dea, medical records, new hampshire, warrants