Court Says LA Police Warrantless Access Of Hotel Records Is 'Unconstitutional'

from the still-leaves-several-exploitable-holes-in-the-Third-Party-Doctrine dept

There hasn't exactly been a plethora of good news Fourth Amendment-wise lately. Every positive decision that restores a little protection seems to be followed by another decision that sets the bar back to where it was.

An appeals court decided back in October that attaching a GPS device to a car should require a warrant. This followed a Fifth Circuit Court of Appeals decision that declared warrantless cellphone location tracking to be perfectly legal and not a violation of the Fourth Amendment. Two different court decisions on the NSA's Section 215 bulk phone metadata collection came to opposite conclusions. Judge Leon (DC district court) declared the program was "likely unconstitutional" while Judge Pauley (SDNY) found the program to be completely legal (and a good way of stopping terrorists despite a complete lack of evidence supporting that theory).

A little more good news has arrived on the Fourth Amendment front, but if the recent past is any indication of what the future holds, an opposing decision is lurking just around the corner. In an en banc hearing, the 9th Circuit Court has found that a Los Angeles ordinance granting warrantless access to hotel records violates the constitutional rights of hotel/motel owners.

"The Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks," Judge Paul Watford wrote for the appellate panel.

"Hotel operators are thus subject to the 'unbridled discretion' of officers in the field, who are free to choose whom to inspect, when to inspect, and the frequency with which those inspections occur," Watford added. "Only by refusing the officer's inspection demand and risking a criminal conviction may a hotel operator challenge the reasonableness of the officer's decision to inspect. To comply with the Fourth Amendment, the city must afford hotel operators an opportunity to challenge the reasonableness of the inspection demand in court before penalties for non-compliance are imposed."

As the law stands now, the only way for an owner to challenge access to the records is to simply refuse, opening them up to criminal charges. The court's decision doesn't go so far as to require police obtain a warrant, but it does state that the ordinance needs to be altered to give hotel operators a way to challenge police requests that won't result in fines and/or jail time.

This decision doesn't do anything to carve holes in the government's expansive reading of the Third Party Doctrine. Guests staying at hotels aren't being given any additional privacy protection. Anything they gain from this is only a side effect of the court's direction to alter the Los Angeles statute governing law enforcement access to hotel records.

The four dissenting judges found plenty to complain about in the majority's decision.

Writing in one of two dissents to the majority ruling, Judge Richard Tallman argued that the panel should have ordered dismissal of the case because there was not enough evidence for a facial challenge.

"They leave us with no evidence to prove that all requests made under the ordinance must violate the Fourth Amendment," Tallman wrote.

"The majority's decision to nonetheless entertain the facial challenge eschews Supreme Court guidance to the contrary."

The ordinance's language says that the hotel owner must provide the guest register if the police request it, he noted.

"The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."

Tallman's assertion doesn't do the Fourth Amendment any favors. He seems to believe that the LAPD would voluntarily adhere to Fourth Amendment limitations even though the ordinance (as written) doesn't ask it to do any such thing. It simply says operators have to turn the info over to police when requested or face fines and jail time.

Tallman's rosy view of the LAPD's deference to the Fourth Amendment has very little basis in real life. If an ordinance provides for unquestioned, warrantless access to information, you can safely assume the information is being accessed without warrants 100% of the time. Everything flows down the path of least resistance. By erecting the tiniest of roadblocks, the court is deterring lazy law enforcement fishing expeditions.

Judge Tallman seems to think the case should never have been entertained because doing so assumes the worst about the LAPD. Someone needs to point out to him that assuming the best about the PD doesn't make the court an effective check against systemic abuse. By providing a small avenue of recourse for operators, the court has made a minimal contribution towards making the Fourth Amendment's protections meaningful.

Filed Under: 4th amendment, hotel records, privacy, warrants

Texas Court Allows Cops To Search First, Acquire Warrants Later

from the Fourth-Amendment-now-filling-out-change-of-address-forms dept

The Texas Court of Criminal Appeals has just made it much easier for Texas cops to skirt the Fourth Amendment. Why secure a warrant when you can just take a look around beforehand to see whether a warrant's worth pursuing? (h/t to Techdirt reader K Marshall)

The case - Wehrenberg v. State - involved a drug bust in Parker County in which officers received a tip from a confidential informant that the defendant and others were "fixing to" cook meth later that evening. Three or four hours later, after midnight, officers illegally entered Mr. Wehrenberg's residence "without a search warrant and without consent," handcuffing everyone inside and escorting them all into the front yard, conducting a "protective sweep" of the house. Then they held everyone outside in handcuffs for an hour and a half while one of the officers went to find a judge to secure a search warrant. The search warrant affidavit did not inform the judge that officers had already entered the premises and detained everyone found in the house. The judge issued a warrant, police found contraband, and charged Mr. Wehrenberg with a second degree felony, for which he was convicted.

There are several problems with what went on here, not the least of which is the Texas Court of Criminal Appeals' determination that these officers (in effect) did nothing wrong. According to the court, the pre-warrant search may have been illegal but the evidence can't be excluded because its existence was confirmed by an "independent source."

The dissenting opinion from Judge Lawrence Meyers takes issue with the entire decision, first noting that no criminal activity was taking place when the cops made their first, warrantless sweep of the premises.

Meyers said the confidential informant’s tip that Wehrenberg was “fixing to” cook meth wasn’t independent evidence but a prediction.

“Search warrants may now be based on predictions of the commission of future crimes,” the judge lamented.

This is hardly heartening news. No one -- at least no one on this side of the blue line -- is in any hurry to start prosecuting people for crimes they haven't committed yet. We've already gone Orwellian with our domestic surveillance. Why push to go Dickian in the law enforcement arena?

This rhetorical question largely doesn't matter. As Scott Greenfield points out, criminal conspiracy laws already hold us liable for acts that haven't yet occurred.

While the question of whether “fixing to” is sufficient to establish probable cause to believe that a crime will be committed, and thus provide an adequate factual predicate for a warrant, is a bit tricky, it’s not all that surprising. When it comes to narcotics cases, already watered down from the demands applied to pretty much any other crime where, under federal law, no overt act is needed in a conspiracy to prove the crime, there doesn’t seem to be a floor below which courts won’t allow police to go.

The more problematic aspect is that the ruling allows cops to acquire search warrants post-search as long as they have a confidential informant ("independent source") who can fill in the blanks. This is where the real abuse begins. The usual abuse (detailed above), encouraged by the War on Drugs, will continue unabated. But Fourth Amendment protections are going to start gathering dust in Texas.

Here's what Judge Meyers had to say about the officers' actions now being condoned by the state:

“Had the officers entered the home and found the occupants only baking cupcakes, the officers would not have bothered to then obtain the warrant at all,” wrote CCA Judge Lawrence Meyers. “It was only after unlawfully entering and finding suspicious activity that they felt the need to then secure the warrant in order to cover their tracks and collect the evidence without the taint of their entry.”

Not only that, but any excuses about "exigent circumstances" are equally weak.

[T]he 3-4 hour delay [is] completely inconsistent with the idea that the officers had to conduct an unwarranted entry because of exigent circumstances or to prevent destruction of evidence. Had such circumstances actually existed, the officers would have proceeded immediately to the residence rather than delaying for the number of hours that they did. There was more than enough time to secure a search warrant before the officers' intrusion into the premises, but they deliberately chose not to attempt to obtain it until after they had conducted the unlawful entry.

This is where the real perversion of justice lies.

The argument adopted here was that the search warrant, based on the snitch, was independent of the intervening grossly unconstitutional search. The problem here is that this is utter, unadulterated nonsense, and a gross bastardization of a horrible concept that rewards deliberate constitutional violations…

[T]here was no attenuation of the “taint,” but at best an intentional circumvention of the 4th Amendment. They left out of the warrant application that they took the snitch’s information, violated the Constitution and then sought a warrant in a post hoc effort to legalize their search.

A clash between federal and state-level statutes governing the admissibility of illegally-obtained evidence has now become a Texas-sized loophole for local law enforcement. As it stands now, LEOs in Texas can perform illegal searches and simply "launder" the evidence by securing warrants post-search. This should give Texas cops a 100% success rate in serving warrants, what with its new Pre-Search® program being given the thumbs-up by the highest appeals court in the state.

Filed Under: 4th amendment, search, texas, warrants

If You're An American Who Believes In The 4th Amendment, You Have No Excuse Not To Sign This Petition

from the don't-let-it-continue dept

We've written a few times recently about the importance of ECPA reform, to bring a woefully out of date law into the 21st century. Specifically, we've urged people to sign this White House petition in favor of ECPA reform. That petition closes soon, and it's still a bit short of the 100,00 goal.

Why is this important to you? Because, without it, it's much easier for the government to snoop on your emails without a warrant. What people want is for emails and regular mail to be treated the same, which is simply not the case today. While this is a separate issue from the NSA stuff, it does matter quite a bit, and this is a chance for there to be a real win that helps protect your privacy. Fighting against this proposal are a variety of government agencies, led by the IRS and the SEC, which have made good use of this loophole to read emails without getting a warrant. This is not what the law was intended for at all. It's a loophole based on the outdated law, which was written in 1986, before anyone could comprehend things like web-based email. The IRS and SEC like having this loophole, and they don't want it to go away. In fact, they want it to be made explicit, rather than an accidental loophole of history. That should be a massive affront to folks who believe in the 4th Amendment and the basic concept that a search should require a warrant based upon probable cause.

I know that many people have dismissed the whole concept of White House petitions, and take a rather cynical view of the whole thing. That's a very dangerous approach here, only helping to further the problems:

1. Yes, it's true that the White House has ignored certain petitions in the past. It's also true that there are certain issues where the White House doesn't really seem to care what people have to say, it's made up its mind.
2. But, that is not always the case, and the White House has used these petitions to take strong positions in the past -- including on things like SOPA and mobile phone unlocking. When accompanied by a strong campaign beyond just the petition, the White House seems open to taking certain issues more seriously. This is one of those.
3. By all indications, there are some in the White House who agree that ECPA is out of date and needs to be fixed. There appears to be an internal debate about where the official White House position will be -- whether it's siding with the IRS and SEC -- or with the 4th Amendment rights of the public. Having a ton of signatures from the American public on their side will absolutely help those in the White House who support real and meaningful ECPA reform push back against the agencies.
4. This isn't an empty gesture. There are bills in the House and Senate to fix ECPA, close the loopholes and protect your 4th Amendment rights. Getting White House support could finally push those bills over the edge and make them law.
5. Sticking with the cynical approach and refusing to sign guarantees failure. Not signing works to the advantage of the IRS and SEC and others who like using this loophole. Even if you're cynical about this, signing the petition at least gives it a chance to influence the debate.

And, yes, I know that outside of the general debate over ECPA, people will look at the NSA situation and argue that it doesn't really matter what the law says. That's not true. Yes, the NSA issue is a big one that needs to be dealt with, but this is about a loophole that goes way beyond the NSA, and is used and abused by different government and law enforcement agencies. Here's a real chance to push back on that and to score a real victory for privacy. Letting cynicism and apathy dictate your move here guarantees that the forces pushing against your 4th Amendment rights win. So take a chance and sign the petition.

Filed Under: 4th amendment, ecpa, ecpa reform, irs, petition, privacy, sec, warrants

Kansas City Cops Tell Man They'll Kill His Dogs And Destroy His Home If Forced To Obtain A Search Warrant

from the i-keep-a-gun-holstered,-but-only-on-the-right-side,-that's-the-cop-side dept

Good news, citizens! You have the right to refuse a warrantless search of your premises. It's a right that's guaranteed by the Fourth Amendment. But that right won't protect you from the consequences of your failure to roll over for law enforcement. Nope, the right to not be subjected to a warrantless search can actually be held against you -- not in a court of law, mind you -- but by the police themselves.

Eric Crinnian, an attorney in Kansas City, Missouri, says police came to his door looking for parole violators, and got upset when he refused them permission to tramp through his house and paw through his possessions. In fact, he claims, one cop went so far as to threaten to shoot his dogs if he made them abide by the requirements of the law by getting a search warrant to look through his home.

Here's the direct quote from the news article:

“If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs [...] and then we’re going to ransack your house looking for these people.”

This sounds suspiciously like a threat (several threats, actually). This is the classic "you can do this the easy way or the hard way" persuasion technique that's been deployed by law enforcement since there's been law enforcement. Even when not spoken out loud, the "or else" always hangs in the air when LEOs "ask nicely" for permission to do things they can't legally do without your consent.

Rarely is this threat spoken with such clarity and detail, however. As both Reason and the Volokh Conspiracy note, the threat delivered by a KCPD officer may not actually be illegal.

John Hamilton, an associate professor of criminal justice administration at Park University and a retired Major with the Kansas City, Missouri, Police Department, told the news station that the officers' threats may not be illegal, though they're inappropriate and it's possible they violate department policy. He also pointed to the matter of appearances, saying that such behavior "makes it tenuous when you appear in front of the court in a case like that."

Not exactly illegal, but not very helpful should this incident result in a lawsuit. In fact, Missouri's laws give police officers leeway to make threats such as these without repercussion, as Reason's J.D. Tucille notes.

Missouri has a statute that defines a "credible threat… against the life of, or a threat to cause physical injury to, or the kidnapping of, the person, the person's family, or the person's household members or domestic animals or livestock" as aggravated stalking and might fit the bill in this situation. However, that law explicitly exempts law enforcement officers "conducting investigations of violation of federal, state, county, or municipal law," which is more than a little disturbing.

In all likelihood, the citizen who exercised his Fourth Amendment rights will be the only one who is punished (in one fashion or another) for the officer's threats. Making these allegations public will decrease the likelihood of the KCPD following through on its offer to tear apart Crinnian's home and shoot his pets. Of course, this could just as easily go the other way. The PD has already promised to retaliate for his refusal to permit an unconstitutional search. It may up its level of retribution in the wake of this public embarrassment.

There's also this to consider. While the officer's words may sound like a threat, what he's saying may not be a threat. It may just be a simple observation of what doing this the "hard way" will entail.

Some people have hypothesized that the police officer was merely describing the normal warrant execution process rather than threatening to retaliate by causing gratuitous property damage. I think it's worth noting that these are not inconsistent. It would not surprise me to learn that the police routinely retaliate against people who make their lives difficult by causing gratuitous damage during the warrant execution process.

No-knock warrants are always more damaging than those announced by a knock on the door. Police use different tactics depending on their perception of the person they're serving the warrant to. People with the power and money to retaliate in court are often handled with more respect (and less collateral damage) than those that are perceived to be powerless (yet somehow more dangerous). Note how an arrest of celebrity is carried out much differently than arrests of millions of nobodies.

"We'll come back with a warrant, but we'll make you wish you had consented earlier." It's almost extortion and yet, it's almost certainly not punishable under Missouri law. Gotta love that Fourth Amendment protection, which grants you the right to turn down a warrantless search, but instead subjects you to a violent, noisy, destructive search of your house once the proper paperwork is secured.

Hopefully, Crinnian's public complaint will either a) force the KCPD to conduct an orderly, non-dog-shooting search of his premises or b) move any judge asked to sign this warrant makes sure the KCPD has dotted every evidentiary "i" and crossed every reasonably suspicious "t." Better yet, let's hope it convinces the PD to drop its apparently errant investigation of Crinnian.

But the underlying message is both terrible and crystal clear. You are protected from illegal searches, but not from petty retaliation conducted under the color of law. The system has checks and balances, but these are essentially meaningless when the balance of power has shifted this far out of whack.

Filed Under: intimidation, kansas city, police, threats, warrants

The IRS And SEC Want To Snoop Through Your Email Without A Warrant; Don't Let Them

from the speak-up,-fix-ecpa dept

We've talked a lot about ECPA reform -- which is the incredibly outdated "electronic communications privacy act" which actually makes sure that you have less privacy than other forms of communication. This isn't necessarily on purpose, but because the law was written in the mid-1980s when email itself was a relatively new concept. It includes some bizarre distinctions between opened and unopened emails and if a message has been "left on a server" for more than 180 days (at which point it's considered "abandoned" and not subject to a warrant). Obviously it never anticipated the kind of internet we have today. It also goes against basic 4th Amendment principles and treats electronic messages differently from physical messages.

There actually is a fair bit of support in both Congress and the White House to fix this... if we can get enough public support behind it, which includes getting more people to sign this petition. As with SOPA, there's a strong suggestion that if this petition tips the scales at 100,000, we can get the White House to come out in favor of ECPA reform.

What's standing in the way? Well, a bunch of government agencies, honestly. There are the obvious ones like the DOJ and DHS. That's to be expected. They always want to make it easier to snoop through emails and written communications. But apparently some of the strongest voices trying to block ECPA reform within the government are coming from the SEC and the IRS, because they too see plenty of advantages in trying to snoop through emails without having to take the trouble of getting a warrant.

As I write this, I'm participating in a Reddit AMA (Ask Me Anything) with Chris Calabrese from the ACLU, Mark Stanley from the Center for Democracy and Technology and Julian Sanchez from the Cato Institute. This coincides with a day of action involving a bunch of companies and organizations trying to get more people to speak out on the importance of ECPA reform. And, finally, the folks at TechFreedom have put together a great infographic, which we've also embedded below.

Filed Under: ecpa, ecpa reform, emails, irs, messaging, privacy, sec, warrants

Tell The Government That It Needs To Get A Warrant If It Wants To Read Your Email

from the they're-not-getting-the-message dept

While there's been so much attention lately on the NSA's surveillance tactics and its legality, for years there's been a separate issue that we've been covering: the outdated ECPA (Electronic Communications Privacy Act) rules (written in the '80s) that cover law enforcement's ability to get access to your data, such as emails. The laws make almost no sense today, as they were written in a time when the internet was much more limited. The idea of everyone storing pretty much all of their information and communications online wasn't even a concept at the time -- and that creates bizarre and nonsensical rules, like arguing that emails that have been on a server for more than 180 days are considered "abandoned" and no warrant is needed to view them.

There's a simple way to fix all this: reform ECPA to protect private data and say that law enforcement needs to get a warrant to view that information. This is not a difficult requirement, and yet law enforcement has been fighting hard against it for quite some time. Back in September, we noted that if Congress really wants to protect online privacy, beyond just the NSA stuff a good first start would be comprehensive ECPA reform.

To that end, someone recently created a "We The People" petition on the White House website asking for ECPA reform, with a key message: the government should get a warrant.

Americans are deeply concerned about NSA surveillance.

But the NSA’s not the only problem. An outdated law says the IRS and hundreds of other agencies can read our communications without a warrant.

That law, known as the Electronic Communications Privacy Act (ECPA), was written over 25 years ago, before the services we use today even existed.

Right now, several bills in Congress would fix this by updating ECPA to require a warrant, but regulatory bodies are blocking reform in order to gain new powers of warrantless access.

We call on the Obama Administration to support ECPA reform and to reject any special rules that would force online service providers to disclose our email without a warrant.

While many are (perhaps reasonably) skeptical about the "We the People" petitions, they have been shown to be effective tools in getting the White House to take a position on important issues. And, while the DOJ is against this kind of ECPA reform, that's not to say that others in the White House couldn't be convinced to go the other way if they really believe there are enough people in support of such a program. So, check out the petition and let the White House know that it should fix the law so that if law enforcement wants your data, it needs to get a warrant.

Filed Under: ecpa, ecpa reform, email, petitions, warrants, we the people, white house

Now Is The Time To Reform Outdated Electronic Privacy Laws

from the vanishing-rights dept

Given everything that's been going on with the stories of NSA surveillance lately, it's more clear than ever that our electronic privacy laws are broken. For many years, we've written about the drastic need for ECPA reform. ECPA is the Electronic Communications Privacy Act, which was passed in 1986. As you can imagine, it's exceptionally outdated and convoluted (such as claiming that any emails on a server for more than 180 days should be considered "abandoned" and available for law enforcement to read -- a concept that makes no sense in an era of hosted email with tremendous storage). ECPA is regularly abused by law enforcement agencies seeking information on Americans. This goes well beyond what the NSA is doing in many ways. There's been support in Congress in the past for ECPA reform, but it's never quite made it.

A large group of organizations and companies -- including us at Floor64/Techdirt, along with (among others) EFF, Center for Democracy and Technology, Free Press, Fight for the Future, Demand Progress, ACLU, Engine Advocacy, CCIA, American Library Association, reddit, DuckDuckGo and more -- have teamed up to create VanishingRights.com, to push for a much needed update to ECPA's outdated rules. Instead, we'd like to see a return to basic 4th Amendment ideas like requiring a warrant to search for info. Sounds crazy, I know, but we're in an age where we actually have to tell Congress that it's time to respect the Constitution, because they seem to forget about it all too often.

The latest proposal to support ECPA reform, called the Email Privacy Act, or HR 1852, was introduced by Rep. Kevin Yoder and has 137 co-sponsors -- so it has significant support in Congress. But it needs more support if it's actually going to pass in this do-nothing Congress that we have.

Please check out the site, where you can let your elected officials that ECPA needs to be reformed, and that it should respect the basic tenets of the 4th Amendment. You can also read more about ECPA, why it's broken, and what it means for your privacy.

Filed Under: 4th amendment, ecpa, ecpa reform, email, privacy, vanishing rights, warrants

Feds Had Court Reverse Ban On Warrantless Searches On Americans Because 'We Wanted To Be Able To Do It'

from the that-whole-4th-amendment-mean-anything-to-you? dept

Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program -- the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like "target" and "relevance." We noted that this was due to a "rule change" in 2011, but the details of that change weren't entirely clear... until now.

The Washington Post has the story (along with the recently released -- though heavily redacted -- FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it's almost certainly a major 4th Amendment violation. The Obama administration's reasoning? As noted below, a chief administration lawyer explains: "We wanted to be able to do it." The "it" there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.

What's a little surprising is that I'm pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines "target" not to mean just the person that they're targeting, but rather the entire investigation. So as long as the goal of the collection was to "target" a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.

What's astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Um. "We wanted to be able to do it" is not exactly a valid reason for violating the clear language of the 4th Amendment. I'm sure plenty of government officials "wanted to be able to do" all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don't like. But we don't allow it because the Constitution says you can't do that.

But Litt just can't help himself, he's so proud of violating the 4th Amendment.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The duplicity here is incredible. First, they redefine "target" to allow them suck up American's communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say "oh fine" and overturn a clear rule that says they can't look at those communications, and Litt doesn't see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don't happen. Yet, now he nonchalantly waves off the issue as being "of course" they search that information because he thinks it's "lawfully collected" despite being almost directly against the plain language of both the law and the Constitution? Wow.

Oh, and as a "bonus" they appear to have tossed in the ability for the NSA to keep Americans' communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.

And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this "rule change." Once again, it seems that the administration and the NSA's defenders keep claiming one thing, and only later, as it's pointed out that the opposite is true, do they say something like "oh, yeah, well of course we do that..."

Filed Under: 4th amendment, backdoor loophole, fisa amendments act, nsa, nsa surveillance, prism, robert litt, section 702, warrants

NJ Supreme Court Says Cops Need A Warrant To Obtain Cell Phone Location Data

from the another-small-victory dept

The New Jersey Supreme Court joins a handful of other courts in deciding that law enforcement agencies need a warrant in order to obtain cell phone tracking data.

The case itself goes back to 2006, dealing with three warrantless location requests placed by police to T-Mobile. These "traces" were used to track down a suspected burglar. Once on trial, the defendant moved to suppress, which the court agreed with, stating he had a reasonable expectation to privacy in terms of his cell phone data. However, the evidence was still allowed under an "emergency aid" exception. On appeal, the court allowed him to reopen his challenge of the suppression ruling but its decision aligned itself with many others, stating he did not have a reasonable expectation to privacy for information "in plain view." This specific challenge proceeded to the state Supreme Court, resulting in this ruling.

The ruling is somewhat state-specific. The court found that, historically, New Jersey's Constitution afforded greater protection against warrantless searches than the Fourth Amendment. (This relies on previous rulings by NJ courts, as the wording is nearly identical.)

This Court has found that Article I, Paragraph 7 of the New Jersey Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment. When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. Instead, they can reasonably expect that their personal information will remain private.

Splitting off further from the third party doctrine claim of reduced privacy expectations, the court offered this observation.

Viewed from the perspective of a reasonable expectation of privacy, what was problematic in 2006 is plainly invasive today. We are not able to draw a fine line across that spectrum and calculate a person’s legitimate expectation of privacy with mathematical certainty –- noting each slight forward advance in technology. Courts are not adept at that task. Instead, our focus belongs on the obvious: cell phones are not meant to serve as tracking devices to locate their owners wherever they may be. People buy cell phones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cell phone to share detailed information about their whereabouts with the police. That was true in 2006 and is equally true today.

The court's argues that the more specific the data is, the greater the need for a warrant, and so-called metadata is surprisingly specific, especially when location data is included. Many investigative and intelligence agencies have gathered a lot of phone records by pushing the narrative that cell phone users are complicit parties in the creation of this data and therefore, willingly ceding their expectation of privacy. The New Jersey court's ruling is a strong rebuttal to that narrative.

This ruling will be effective moving forward and the court has decided not to apply the new standard retroactively. The new requirement goes into effect in 30 days, which may mean NJ telcos are in for a few last-minute fishing expeditions. The justices have kicked the case back to the appeals court and instructed it to apply the new ruling in determining whether its use of the "emergency aid" exception to allow the warrantless evidence was proper.

It may be a very venue-specific decision, but it's another small step towards restoring the expectation of privacy to cell phone users and their data.

Filed Under: fourth amendment, new jersey, privacy, third party doctrine, warrants

Microsoft Fires Off Rebuttal To Latest Leak; Angry Letter To Eric Holder

from the at-this-point,-I'm-pretty-sure-no-one's-telling-the-complete-truth dept

The recent leak detailing Microsoft's extremely close work with US intelligence agencies seemed to contradict pre-leak statements made by the company concerning responses to data requests. Microsoft claimed it only did the minimum required by law, but the leaked documents portrayed the software giant as working in concert with the NSA and FBI to provide them with pre-encryption access to several services, including Outlook, SkyDrive and Skype.

Microsoft has responded to this leak via a blog post and a letter to Eric Holder. The blog post is a long refutation of every claim made in the leaked documents. Rather than give the agencies direct, pre-encryption access, as was stated in the leak, Microsoft claims it only provides metadata and content as requested -- and then only if Microsoft deems the request valid.

Microsoft does not provide any government with direct and unfettered access to our customer’s data. Microsoft only pulls and then provides the specific data mandated by the relevant legal demand.

If a government wants customer data – including for national security purposes – it needs to follow applicable legal process, meaning it must serve us with a court order for content or subpoena for account information.

We only respond to requests for specific accounts and identifiers. There is no blanket or indiscriminate access to Microsoft’s customer data. The aggregate data we have been able to publish shows clearly that only a tiny fraction – fractions of a percent – of our customers have ever been subject to a government demand related to criminal law or national security.

All of these requests are explicitly reviewed by Microsoft’s compliance team, who ensure the request are valid, reject those that are not, and make sure we only provide the data specified in the order. While we are obligated to comply, we continue to manage the compliance process by keeping track of the orders received, ensuring they are valid, and disclosing only the data covered by the order.

With this across the board denial of the leaked documents' contents, we're left with only a few possibilities. Either the document isn't accurate and Microsoft's statement is truthful or the statement is false and the document is the truth. Or, somewhere in between, there's a way both can be accurate (or "least untruthful"), which boils down to subjective definitions of certain words, most notably "access." Microsoft could have provided near real-time access while still only complying with court orders. Everything stored and turned over to the NSA and FBI was technically "pre-encryption," in the fact that Microsoft had unencrypted access to the data. As we haven't actually seen a court order or national security letter directed at Microsoft, it's tough to say how direct and how close to real time this access is.

Microsoft's rebuttal doesn't entirely refute the documents, however. There's no doubt it worked closely with these agencies to provide the access, content and data they were seeking, even if it was all strictly "by request." In terms of Skype, Microsoft doesn't even bother refuting the government had access to audio and video via its Prism connection. All it addresses is the statement that claimed video production had tripled "since a new capability was added" in July of 2012.

The reporting last week made allegations about a specific change in 2012. We continue to enhance and evolve the Skype offerings and have made a number of improvements to the technical back-end for Skype, such as the 2012 move to in-house hosting of “supernodes” and the migration of much Skype IM traffic to servers in our data centers. These changes were not made to facilitate greater government access to audio, video, messaging or other customer data.

These changes may not have been made to "facilitate greater government access," but that's not what the document claims. All it says is that this new capability tripled video production. Moving to in-house hosting and migrating traffic to Microsoft data centers could certainly aid in the "production" (read: harvesting) of Skype video calls. Whatever the intent, the end result was the same -- easier, faster access to Skpe data and content for intelligence agencies.

This back-and-forth is unlikely to result in establishing definitive guilt or innocence on the part of Microsoft. Either way, it's of negligible importance. The fact is that intelligence agencies are, by way of court orders and security letters, inserting themselves deeper and deeper into the underlying fabric of online communications, something that stretches much further than Microsoft.

Microsoft itself is hoping to address the larger, more problematic issue of our growing surveillance state. In addition to its blog post, the company sent a rather irate letter to Attorney General Eric Holder [pdf]. It dispenses with most of the usual diplomatic niceties and confronts the government with the damage it's doing to American citizens and American companies with its surveillance activities.

Since the initial leak of NSA documents, Microsoft has engaged constructively with the Department of Justice, the FBI, and other members of the Intelligence Community on the ground rules governing our ability to address these issues and the leaked documents publicly. We have appreciated the good faith in which the Government has dealt with us during this challenging period. But we’re not making adequate progress. When the Department and FBI denied our requests to share more information, we went to the Foreign Intelligence Surveillance Court (FISC) on June 19 to seek relief. Almost a month later, the Government is still considering its response to our motion.

Last week we requested official permission to publicly explain practices that are the subject of newly-leaked documents that refer to Microsoft and have now been misinterpreted in news stories around the world. This request was rejected. While we understand that various government agencies are trying to reach a decision on these issues, this has been the response for weeks.

This is no surprise to anyone who's attempted to obtain information or official responses from our intelligence agencies. The standard m.o. is to wait it out while chanting "grave damage to national security." But what Microsoft adds next serves as a slap in the face to those parties attempting to wait it out.

As I know you appreciate, the Constitution guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. It’s time to face some obvious facts. Numerous documents are now in the public domain. As a result, there is no longer a compelling Government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.

In other words, "Your secrets aren't secret anymore. Get over yourselves."

At this point, only government employees who dutifully ignore what their employer tells them to ignore aren't aware of these leaked documents and their contents. If our "national security" was suffering "exceptionally grave damage" from these leaks, you'd think at least some of that damage would be noticeable. Instead, what we have is the large scale embarrassment of government officials who are now forced to explain actions that contradict the very principles they claim this country stands for -- that they say they stand for. Refusing to allow companies to discuss activities already outed by leaks is simply the most self-serving form of damage control. The threat to officials' reputations easily exceeds the threat to the security of the American public, and continuing to deny these companies an opportunity to explain their involvement does them, and the public, a disservice.

Filed Under: eric holder, fisa rulings, free speech, nsa, nsa surveillance, skype, surveillance, warrants, wiretapping
Companies: microsoft