Florida Appeals Court Tells Law Enforcement It Needs Warrants To Deploy Stingrays

from the also-deployed:-parallel-construction dept

The Florida Court of Appeals has upheld a suppression order for evidence obtained through the use of a Stingray device. This decision draws the line between third-party info and info gathered directly by the government, even if the info collected was roughly the same. (h/t Cyrus Farivar)

In the course of investigating an armed robbery that led to the killing of one of the robbery victims, law enforcement sought assistance from the suspect's cell service provider, asking for cell site location info and the placement of a trap-and-trace on the cellphone itself. The following comes from the appeals court decision [PDF]:

A judge signed the “CSLI Order,” which required the service provider to disclose “all cell-site activations and sectors for all incoming and outgoing calls/communications . . . call detail location records, ‘angle from the tower’ data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records.” The judge also signed an order requiring the service provider to install a pen register and trap and trace device on the Defendant’s phone and transmit the information collected to the Broward Sheriff’s Office (the “Trap and Trace Order”).

Later, the State applied for a search warrant of a Fort Lauderdale residence. The affidavit filed in support of the warrant stated that “[m]obile tracking was activated on [the Defendant’s] cell phone pursuant to a lawful court order” and that the Defendant’s phone was “placed specifically” at the residence and had been “stationary overnight within this residence for several concurrent nights.” The search warrant was granted.

Law enforcement testified the cell provider could only provide "tower information," rather than precise GPS location. To make up for this lack of specificity, investigators decided to fire up a Stingray to pinpoint the location of the suspect's phone. This extra step -- performed without a warrant -- ultimately resulted in the suppression of evidence by the trial court. The government appealed, citing the subpoenas and the Third Party Doctrine. The state appeals court disagrees.

Combining the ruling on cellphone searches (Riley) and the invasiveness of new technology (Kyllo) [along with the recent Carpenter decision], the court comes to this conclusion:

Together these cases hold that, without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier.

With a cell-site simulator, the government does more than obtain data held by a third party. The government surreptitiously intercepts a signal that the user intended to send to a carrier’s cell-site tower or independently pings a cell phone to determine its location. Not only that, a cell-site simulator also intercepts the data of other cell phones in the area, including the phones of people not being investigated.

If a warrant is required for the government to obtain historical cell-site information voluntarily maintained and in the possession of a third party, see Carpenter, 138 S. Ct. at 2221, we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator.

The court also notes law enforcement -- in deploying a Stingray -- went far beyond what was actually authorized in the judicial orders it obtained.

The CSLI Order did not authorize the State to act independently. But the sergeant and the Defendant’s expert testified that the information maintained by the service provider could not identify the exact location of the Defendant’s phone. So the State resorted to other means. In other words, the CSLI Order authorized indirect government surveillance.

But the State could not obtain the information it required through the authorized means. So the State conducted direct government surveillance by using a cell-site simulator. And it did so without a warrant. Based on controlling Supreme Court authority, the court correctly suppressed the evidence obtained as a result of the State’s warrantless actions.

The end result is suppression of evidence gathered with the Stingray device. Since it was this device that pinpointed the location of the suspect's cellphone, the evidence obtained from the search of the residence the phone was located at is going to disappear as well. And that's evidence the government likely can't do without. It includes three guns, a mask, ammunition, and a stun gun -- all of which likely played a part in the armed robbery.

That this happened nearly five years ago makes little difference. It may have preceded the Carpenter ruling that created a privacy right for cell site location info, but the other Supreme Court precedent on cellphone searches and the use of invasive technology (like thermal imaging) to cross the threshold of people's homes without ever setting foot inside predates the warrantless Stingray deployment.

And a Stingray does exactly that: it forces phones -- wherever located -- to connect to it and give up location data and identifying info. It's something law enforcement can't obtain without electronic coercement and it's far more precise than the coarse location info it can obtain without a warrant from cellphone providers. Of course, the Carpenter decision changed the math on location info, so if law enforcement really wants to locate a phone, it's now better off seeking warrants for Stingray deployment than approaching third parties for the same data if it's looking for something more "real time."

Filed Under: 4th amendment, florida, imsi catcher, stingray

Court Shuts Down Feds' Attempt To Expand The 'Border Search' Exception To Cover Inland GPS Monitoring

from the short-gov't:-everything-with-the-borders-should-be-subject-to-the-border-exc dept

Cyrus Farivar of Ars Technica has put together a hell of a read from a suppression order obtained by defendants in a drug case. It involves a truckload of cheese danishes, cocaine trafficking, and the US government's attempt to apply the "border exception" everywhere in the United States.

At the heart of it is a GPS tracking device. The government installed it on a truck driven by suspected drug smugglers when it crossed the Canadian border into the US. It then used that device to track the truck as it traveled down to California. The resulting bust only uncovered some bags of sugar, but a previous stop of the same truck had turned up 194 kilos of cocaine.

The defendants in the case have had the evidence suppressed. The ruling [PDF] was handed down late last month. It points to the Supreme Court's 2012 Jones decision, which held that placing GPS devices on vehicles was a search under the Fourth Amendment. Warrants are needed to place the devices. Long-term tracking is also out of the question if warrants aren't obtained.

The government argued it didn't need a warrant because it placed the device on the truck at the Canadian border. This would be the "border exception" to the Fourth Amendment -- one carved out by the courts which allows all kinds of warrantless searches to be performed in the name of border security.

But the judge doesn't buy this attempt to salvage ill-gotten evidence. The government cites a number of cases involving searches of vehicles performed at the border -- some more invasive than others -- where warrants weren't needed. The court finds these citations unavailing because they don't actually address what happened here: the placement of a GPS device at the border which was subsequently used to track a vehicle as it traveled far beyond the Canadian border.

The Court doubts that an analysis dependent on the physical aspects of the search is appropriate here where the search extends beyond the initial installation of the device.

And, having taken the Jones decision into account, the court definitely isn't going to allow the government to effectively expand the border search exception to cover searches performed well within the nation's borders.

[T]his Court is hesitant to mechanically apply the border search doctrine where the search stretches far beyond the conduct at the border to create a "precise comprehensive record of a person's movements." [...] Ultimately, the Court concludes the placement of a GPS device on a vehicle at the border, combined with the subsequent tracking of data over a prolonged period away from it, cannot be justified by the border search exception.

Wait, says the government, what about the extended border search doctrine, where we can perform warrantless searches so long as someone or something came across the border recently and we think something criminal is going on? The court says continuous monitoring isn't the same thing as a search dependent on two separate, but linked, predicates. This was a search that began at the border and never stopped.

While the initial placement of the GPS devices on Defendants' truck occurred at the border, the subsequent monitoring of the data over the almost 48 hours constitutes a continuous search… [I[t is this unceasing search over that period that precludes application of the extended border search doctrine.

The court also shuts down the government's request for other exceptions to be applied. The government tried to explain the discovery would have been "inevitable" based on its prior reconnaissance of the truck's route, but the court points out the same route wasn't taken this time and the FBI didn't actually know for a fact where it would eventually end up. It made assumptions but didn't have supportable facts.

As for the good faith exception, the court points out the only controlling case came from the Supreme Court, and it's pretty difficult to imagine well-trained federal agents with all their expertise would not be aware of the warrant requirement. Furthermore, there have been no opinions since Jones that explicitly carve out a "border exception" for GPS tracking device usage. It appears the government did nothing to ensure its actions were legal or Constitutional before engaging in this extended search.

The Court is not persuaded the good faith exception stretches to encompass the government's reasoning for its application. There is no evidence the agents were advised by an attorney that they need not obtain a warrant. Nor has the government been able to point the Court to any precedent that could have served as a basis for the purported 48-hour rule or its looser application to semi-trucks.

The evidence is gone -- what there was of it. The government isn't abandoning its prosecution and it may ask the Ninth Circuit to allow it to apply the border search exception anywhere it wants to. But for now, it's been told the exception doesn't cover hours of inland monitoring, which is a conclusion federal agents should have been able to reach on their own -- long before engaging in 48 hours of continuous rights violations.

Filed Under: 4th amendment, border exception, border search, exemption, gps, illegal search, supreme court, tracking

DHS Continues Facial Recognition Deployment With An Eye On Expanding Program To All Domestic Travelers

from the ALL-YOUR-FACE-ARE-BELONG-TO-US dept

The DHS is moving forward with the deployment of facial recognition tech at ports of entry, including US airports hosting international flights. The tech is still in its infancy, more prone to ringing up bogus hits than removing criminals and terrorists from circulation. But the DHS -- like many other government agencies -- isn't afraid to let a mere toddler do an adult's job. Faces will be scanned, whether travelers like it or not.

The DHS has issued an undated Privacy Impact Assessment [PDF] meant to unruffle the feathers of Americans it informed last year that not traveling internationally was the only way to opt out of this collection. The next phase of the facial rec tech deployment dials things back a bit, offering a bit more in the way of data collection/retention constraints.

In an effort to mitigate the impacts of this expanded collection, CBP seeks to minimize the data it maintains by purging facial images as quickly as possible after use. Each traveler’s biographic and biometric data is deleted from the TSA-issued device, either at the time of the next passenger’s transaction or after two minutes, whichever occurs first. All PII collected for the TVS transaction is stored in a secure database within the CBP network. CBP does not retain images of U.S. Citizens in ATS-UPAX but does retain images of non-U.S. Citizens for up to 14 days for confirmation of the match, as well as evaluation and audit purposes. CBP deletes all photos, regardless of immigration or citizenship status, from the TVS cloud matching service within 12 hours of the match.

[...]

TSA will only use these photos for identity verification at the checkpoint and cannot access the photos after the inspection is completed.

This is one of the better data retention policies the government has rolled out, especially considering it pertains to a border security program. But the DHS is far more vague -- and in some cases appears to be fudging the truth -- when it comes to details about data sharing. DHS claims this data won't be shared with airlines because the airlines have no interest in the data. As Edward Hasbrouck of Papers, Please points out, this statement runs contrary to the DHS's actions.

The joint government/industry interest and intent to develop and deploy a shared system of automated facial image tracking and control of travelers is made clear in white papers on government/industry biometric strategy and in the agendas for events at which CBP, TSA, and industry executives get together to discuss their plans.

Next month’s Future Travel Experience Global 2018 conference, for example, includes presentations by the planning and implementation directors for CBP’s “Biometric Exit” program, followed later the same day by a “working session” with CBP, airline, and airport executives on “Implementing advanced passenger processing with automation and biometrics”.

As for allowing American travelers to opt of the program, the DHS's stance has softened from its earlier "just don't travel" posture. Travelers can bypass face-scanning kiosks, but that just routes them towards CBP secondary inspection. All the CBP/DHS has to do to encourage more opting-in is make the non-scan option as laborious and invasive as possible. As has already been observed by Papers, Please, opting out sends American citizens to the same line as foreign international travelers, ensuring the wait for clearance is much longer than utilizing the facial rec option. Bottlenecks are good way of routing traffic where you want it to go, rather than where it would naturally flow.

The end goal isn't more surveillance of international travelers. The DHS ultimately wants to harvest faces from every domestic traveler in the US. It's not stated in the Impact Assessment, but there are already signs the agency has no interest in limiting this to those arriving from foreign countries.

Use of automated facial recognition is intended by the DHS to become a routine element of the surveillance and control of all air travelers, foreign and domestic. As the head of the CBP, Commissioner Kevin McAleenan, said in a press release in June 2018, “We are at a critical turning point in the implementation of a biometric entry-exit system, and we’ve found a path forward that transforms travel for all travelers.” [emphasis in the original]

The best way to fight this is to opt out. It may subject travelers to longer waits at checkpoints, but it also forces CBP agents to process more people the old fashioned way, without the aid of the DHS's new tech. Annoying the government by refusing to be traffic-shaped by deliberate bottlenecks can be its own small victory, even if the War on Terror machinery continues to rack up loss after loss to terrorists.

Filed Under: 4th amendment, dhs, domestic travelers, facial recognition, privacy, tsa

Officers Lose Their Evidence After Turning A Medical Emergency Call Into A Warrantless Search Party

from the [extremely-Montgomery-Burns-voice]:-'Con-sti-tu-tion???' dept

This case, coming to us via Andrew Fleischman, would be Keystone-Cops-comical if it weren't such a hideous example of law enforcement using someone's rights as a doormat. What began as a 911 call for assistance with an unresponsive infant soon devolved into a full-blown search of house by several officers without a single warrant between them.

Arielle Turner was indicted by a grand jury for the death of her infant. That's gone now, thanks to the careless, self-destructive actions of the officers at the scene. All evidence obtained during the unlawful search has been suppressed, with this Georgia Supreme Court ruling [PDF] upholding the lower court's decision.

Arielle and her mother, Terry Turner, called 911 to report her 10-week-old baby was unresponsive. EMTs arrived and began treating Turner's daughter before taking her (and Arielle) to the hospital. The child's grandmother remained at home.

The first officer to arrive was Joseph Wells who comforted Terry Turner while standing on the porch. Terry invited Officer Wells to come in and sit down because her legs were starting to hurt. They sat and conversed. Detective Victoria Bender arrived shortly thereafter, letting herself in through the open front door. Neither of these two officers performed any searches or seized any property.

Over at the hospital, an examination did not turn up any signs of abuse or foul play. Investigators believed the infant's death to be accidental. This information was relayed to Detective Bender, who passed it on to Terry Turner. Either something got lost in translation or the officers already on the scene decided to make a command decision. Suddenly, the home they were already in was declared a crime scene, despite there being no evidence of foul play.

Once that happened, the floodgates opened. From the decision:

Shortly thereafter, more officers arrived, including a crime scene investigator who, at some point, began photographing the residence. Detective Bender started questioning Terry about the events leading up to the infant’s death and asked Terry to “take her around and tell [her] what went on last night.” Terry testified that she did not consent to the officers entering or searching her home, and she explained that she did not stop the officers because Detective Bender “just told me that’s what they was [sic] supposed to do.”

As to the sudden unexplained presence of a crime scene investigator, the court has this to say about the spotty testimony offered by other officers named in the lawsuit:

At the motion hearing, none of the law enforcement officers could explain how the crime scene investigator was notified or who summoned him to the scene, and the State did not call him as a witness at the hearing.

Another officer brought Arielle Turner back to her house full of cops. About that same time, the county coroner arrived. The coroner also decided to engage in a warrantless search, which included recording some video with his cellphone. Officers seized pretty much anything baby-related and took them to the sheriff's office.

All the assembled officers believed they had a right to do this under state law. Supposedly the state's Death Investigation Act trumps the US Constitution.

At the hearing on Appellee’s motion to suppress, all of the testifying officers confirmed that they did not obtain a search warrant, that they did not have probable cause to search the house, that they did not ask for permission to search the home, and that they did not believe a crime had occurred when the search of the home took place. Instead, the officers and Alcarez explained that their investigation was done pursuant to Georgia’s Death Investigation Act. See generally OCGA § 45-16-20 (2015) et seq. In total, law enforcement remained in Appellee’s home for approximately three hours questioning witnesses, searching, photographing and videotaping the home, and seizing evidence.

The government tried to argue consent was given for a search. Supposedly, Terry Turner's request one officer (who never performed a search) come in and sit down was a permission slip for several officers to search the entire house and seize multiple items for the next three hours. The court says the law (and the Constitution) simply does not permit this interpretation.

Here, a reasonable officer would understand that Terry’s invitation for Wells to enter her kitchen was not consent for additional officers to conduct a search of the home.

The court goes on to note there was no consent, not even tacitly. If anything, Terry Turner was unaware of her rights and no officer on the scene felt compelled to obtain actual consent when it was far easier to just act like everything was being done by the book.

The record further supports the trial court’s finding that Terry merely acquiesced to the authority of the officers. The record reflects that, after the child was pronounced dead, numerous members of law enforcement responded to the Turner residence in order to investigate the death of the child without probable cause, without a search warrant, and without even a suspicion that a crime had been committed. The officers admitted at the hearing that they did not ask Terry for consent to search the home, to take photographs or video, or to remove any items from the residence. Despite this, at least four members of law enforcement, including a crime scene investigator (whose presence, astoundingly, no one can explain) participated in a search of Appellee’s home.

Law enforcement had the knowledge and the power. The officers chose to only use the latter. A deliberate misreading of the situation turned into playground for unconstitutional behavior. At any point, the search could have been stopped and the damage mitigated by a warrant request. Instead, cops took the inch Turner gave and stretched it into a country mile. And they used all this ill-gotten evidence to cook up a case against the infant's mother, even after hospital personnel stated they saw no indications of abuse or foul play.

This is the government at its ugliest -- willfully abusive and meaninglessly punitive. Hopefully this suppression of evidence will result in better behavior, but the past has shown law enforcement officers are slow learners. Why play by the rules when rolling the federal court dice still pays off regularly?

Filed Under: 4th amendment, arielle turner, georgia, medical emergency, warrant, warrantless search

Indiana Appeals Court Says Forcing Someone To Unlock Their Phone Violates The 5th Amendment

from the we'll-take-a-win,-no-matter-how-small dept

Passwords and PINs still beat fingerprints when it comes to the Fifth Amendment. But just barely. Nothing about the issue is settled, but far more cases have been handed down declaring fingerprints to be non-testimonial. Fingerprints are obtained during the booking process -- a physical, traceable representation of the suspect. If they can be obtained during booking, they can certainly be obtained again to unlock a device. A physical aspect of a human being can't be considered "testimonial" as far as courts have interpreted the Fifth Amendment.

Passwords are a different story, but not by much. In a handful of cases, courts have said the compelled production of passwords and PINs has no Fifth Amendment implications. Defendants, conversely, have argued compelled password production forces them to testify against themselves by facilitating the production of evidence to be used against them.

This argument hasn't had much success. Judges have frequently found password production to be just as non-testimonial as a person's fingerprint. The argument here is that all law enforcement wants is a password, not the production of evidence. Under the "foregone conclusion" theory, all the government has to prove is that the person being asked to unlock a device can unlock the device.

This decouples password production from its consequences: the production of evidence by defendants that the government will use against them in court. When this theory is applied, the Fifth Amendment is sidelined and replaced with the ultra-low bar of foregone conclusion.

But passwords aren't fingerprints and can be testimonial. Unlocking a device law enforcement is going to search for evidence states clearly that a person owns or controls the device and its contents. That makes it very easy for the government to link a device's illicit contents to the person who was ordered to unlock it.

A case from Indiana's Court of Appeals -- via FourthAmendment.com -- addresses these arguments with a bit more sympathy for compelled testimony arguments. The government argued there's nothing testimonial about a password. The court, in a lengthy decision [PDF], disagrees.

[W]e consider [Kaitlin] Seo’s act of unlocking, and therefore decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe. We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the State. As discussed above, when the contents of a phone, or any other storage device, are encrypted, the cyphertext is unintelligible, indistinguishable from random noise. In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

The court also says there's nothing to the government's argument that unlocking a phone for police is somehow different -- and less of a Fifth Amendment issue -- than turning over a password to police.

[B]ecause we believe that electronic data and the devices that contain it are fundamentally different than paper documents and paper storage, we reject the State’s attempt to distinguish between compelling Seo to convey her passcode to the State and compelling Seo to simply unlock her phone by entering the passcode itself. It is a distinction without a difference because the end result is the same: the State is compelling Seo to divulge the contents of her mind to obtain incriminating evidence.

This decision shores up Fifth Amendment arguments against compelled decryption and password production. The state appeals court then goes further, instructing state judges and law enforcement agencies to seek less invasive -- and less constitutionally-problematic -- methods of obtaining evidence.

Going forward, we ask reviewing courts of last resort to consider the following structure for resolving decryption requests from law enforcement authorities:

1. Requiring a defendant to decrypt digital data should be legally recognized for what it is—coerced recreation of incriminating evidence— and compulsory process for that purpose should be strictly limited for precisely that reason.

2. In some instances, law enforcement officials will have legitimate need of digital information that is protected by encryption.

3. If the law enforcement request is a bona fide emergency, with verified concern about the possibility of further and immediate serious criminal acts, a warrant that describes the other imminent crime(s) suspected and the relevant information sought through a warrant, both with reasonable particularity, will likely satisfy Fourth and Fifth Amendment requirements.

4. In non-emergency situations, law enforcement should be required to first seek the digital data it wants from third parties, such as internet “cloud” sources, cellphone companies, or internet providers (ISPs), where a defendant has practically, if not explicitly, consented to production upon legal process from a court of competent jurisdiction.

5. Exceptions to the Fourth Amendment and its state analogues, such as the plain view doctrine and the good faith exception, should be inapplicable to, or strictly limited in, the search and seizure of digital data stored on devices owned or controlled by that defendant, or from “Cloud” subscriptions that defendant owns or uses.

It's a thoughtful decision that runs contrary to many rulings covering the same subject. But it is limited to the state of Indiana, so it's not going to undo any federal precedent. But it does give those representing clients facing demands for password production another citation in their favor. More importantly, it sets a new baseline for lawful demands for data production, wresting control away from law enforcement agencies unlikely to impose these constraints of their own.

Filed Under: 4th amendment, 5th amendment, indiana, kaitlin seo, phone unlocking

American Muslim Challenges Warrantless Border Device Search From An Unexpected Legal Angle

from the may-not-work,-but-definitely-worth-a-try dept

There's more than one way to skin the Fourth Amendment cat. A person who feels her rights were violated by the seizure and search of phone data at the border is sidestepping the expected civil rights lawsuit to expedite the deletion of the seized phone contents. Cyrus Farivar of Ars Technica has more details:

An American Muslim woman has formally asked a federal judge to force border officials to delete data copied from her iPhone 6S Plus, months after it was seized from her when she landed at Newark International Airport in February 2018 while returning from a trip abroad.

However, attorneys for the woman, Rejhane Lazoja, have taken the unusual step of not bringing a run-of-the-mill civil lawsuit.

Instead, in federal court in New Jersey on Wednesday, her attorneys filed what’s called a Rule 41(g) Motion, otherwise known as a "Motion to Return Property."

This motion is normally used in criminal cases to argue for the return of property seized by the government. Lazoja was never accused of a crime, nor was she given any justification for the phone search. Her phone was returned to her intact 130 days[!] after it was seized, so she technically has her property back already. But with the help of the Council on American-Islamic Relations (last seen challenging the TSA's suspicionless surveillance program "Quiet Skies"), Lazoja is hoping to force the federal government to delete any of her data it still has in its possession.

The motion [PDF] details Lazoja's experience with US customs officials, who took her into a room and demanded she unlock her phone for them. She refused, so the CBP seized it, giving her a receipt for her phone and sent her on her way without her personal property. Lazoja alleges a number of Constitutional violations and cites recent phone-related Supreme Court decisions, but it's unlikely these arguments will be availing, what with the courts' deference to the government's assertions that border security trumps individual rights.

What may find a legal foothold is Lazoja's arguments centering on seizure law and the CBP's policies, which say it must state a reason for holding onto personal data it has pulled from searched devices.

Pursuant to CBP’s own policies, if Defendants, their agents and employees do not assert probable cause to seize a device or the information it contains, “any copies of the information held by CBP must be destroyed.” Ex. 3 at § 5.4.1.2. “Upon this determination, the copy of the information will be destroyed as expeditiously as possible, but no later than seven (7) days after such determination unless circumstances require additional time, which must be approved by a supervisor and documented in an appropriate CBP system and which must be no later than twenty-one (21) days after such determination.”

With the phone not being returned for more than three months, it's safe to assume the data the CBP pulled from it was around for at least that long, if it still doesn't reside on a government hard drive somewhere. The government has no plausible reason to retain this data, but if there's no pressure to delete it, it might hang onto it indefinitely.

The CBP is performing more forensic searches of devices at the border than ever before. Growth has been exponential over the past couple of years, suggesting the new normal is demands for passwords, seized devices, and data dumps. If her motion is successful, it may act as a deterrent against future expansion of invasive searches, if only because the CBP will be forced to provide the court with some articulable reason for holding onto the data.

Filed Under: 4th amendment, border search, devices, motion to return property, rejhane lazoja, warrantless search

Appeals Court: City-Owned Utility Pulling Electric Use Info Every 15 Minutes Is A Search

from the but-an-acceptable-search-apparently dept

An oddball, but interesting, decision [PDF] flowing from the Supreme Court's Carpenter ruling has been issued by the Seventh Circuit Court of Appeals. While the Carpenter decision centered on the long term collection of historic cell site location information, the ruling could be applied to a number of situations where records created by citizens are stored and housed by other parties and accessible without a warrant.

This case deals with smart meters, issued by the government (via the public electric utility) to track electric use in citizens' homes. With the old meters, readings were performed by utility employees every few weeks. The new smart meters send back info on electric use every fifteen minutes. This frequency was chosen by the City of Naperville government. It could have gone with something less intrusive, but it chose this method instead.

The city was sued by citizens opposed to being snooped on by the new smart meters. The plaintiffs argued the frequent readings allowed to government to make a great deal of inferences about activities inside citizens' homes, based on the rolling delivery of energy use amounts. The district court tossed the case. So does the Appeals Court, but only after making some interesting findings. (via Orin Kerr/Volokh Conspiracy)

First, the court rules that the government's use of smart meters to retrieve information about electric usage is actually a search under the Fourth Amendment. To do that, it looks to the Supreme Court's Kyllo decision, which dealt with the warrantless deployment of thermal imaging scanners by law enforcement. That decision found deployment to be a search, even if officers never physically entered the residences being scanned. Enough could be inferred about inside activity from the thermal images to be considered a search under the Fourth Amendment. The Appeals Court says the same rationale applies here.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used. By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

This search, performed by smart meters, has more privacy implications than the rough thermal imaging in Kyllo.

What’s more, the data collected by Naperville can be used to draw the exact inference that troubled the Court in Kyllo. There, law enforcement “concluded that [a home’s occupant] was using halide lights to grow marijuana in his house” based on an excessive amount of energy coming from the home. Id. at 30. Here too, law enforcement could conclude that an occupant was using grow lights from incredibly high meter readings, particularly if the power was drawn at odd hours. In fact, the data collected by Naperville could prove even more intrusive. By analyzing the energy consumption of a home over time in concert with appliance load profiles for grow lights, Naperville law enforcement could “conclude” that a resident was using the lights with more confidence than those using thermal imaging could ever hope for. With little effort, they could conduct this analysis for many homes over many years.

The court notes this isn't a Third Party Doctrine case, unlike the Supreme Court's Carpenter decision. This argument, raised by the city in its defense of its info collection, is unavailing. There is no third party. This dismantles the city's argument the data collection was somehow a "voluntary" exchange. The information flows from citizens' houses directly to the government. There's nothing "voluntary" about electric service provided by the government, and that's where the Carpenter decision comes in.

The third-party doctrine rests on “the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”But in this context, a choice to share data imposed by fiat is no choice at all. If a person does not—in any meaningful sense—“voluntarily ‘assume the risk’ of turning over a comprehensive dossier of physical movements” by choosing to use a cell phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), it also goes that a home occupant does not assume the risk of near constant monitoring by choosing to have electricity in her home. We therefore doubt that Smith and Miller extend this far.

Ultimately, the court sides with government. Unreasonable searches need warrants. They're permission slips for things we don't want our government doing without permission from an impartial judge and without laying out the justification for the search. In this case, the flow of data to the government (in exchange for the flow of electricity from the government) is a search, but it's a "reasonable" search. The appeals court says that the government's interest in modernizing the grid and energy deployment is worthwhile and done "without prosecutorial intent." Law enforcement does not have constant access to this info. Only the utility does. Presumably, additional paperwork would be necessary if law enforcement does want access, but the court doesn't see anything on the record that suggests public utility shoulder surfing by police officers.

Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability. We hold that these interests render the city’s search reasonable, where the search is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.

Somewhat strangely, the court decides that the more smart meters the government rolls out, the less of a Fourth Amendment issue it becomes.

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is “in general public use.” While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public.

In the court's own words, now that airplanes are a routine part of daily life, stuff viewable from overheard has a diminished privacy interest. Apparently, the same thing applies to the continuous flow of electric usage data to government utilities. Once smart meters are no longer a niche item, Americans will just have to get used to the government drawing inferences from the multiple data points it gathers daily.

This seems at odds with the Carpenter decision (which partially stems from the Supreme Court's ruling on cellphone searches). The more pervasive the tech is, the more privacy implications it raises. Once cellphones became ubiquitous, the government could no longer be allowed to treat them as tracking devices loaded with personal information that could be accessed without a warrant.

The tech in this case may be owned by the government, but the same thought process should apply. Turning peoples' homes into a steady stream of data points via the rollout of smart meters should weigh against the government's easy access, rather than be treated as a supporting argument for it. But that's the way the Supreme Court precedent sits right now, which makes for some very inconsistent Fourth Amendment applications.

Filed Under: 4th amendment, 7th circuit, carpenter, electric utility, naperville, smart meters

Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

from the an-affidavit-needs-to-be-more-than-a-sketchy-conspiracy-theory dept

The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.

Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.

But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.

This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.

When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.

In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.

The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine.” He further speculated that “a portion of the cocaine seized” from Rocha-Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine ; and that the affidavit had been presented to and approved by “the Akron Police Legal Advisor.”

Having perused Detective Gilbride's speculative affidavit, a local judge granted the Akron PD the permission to seize:

[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

So, based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house (if not the house itself, because, you know, "transfer/concealment/expenditure of money").

Then the government obtained a second warrant after finding a utility bill with Tucker's name on it listing an address on Penguin Ave. [Keep in mind, the supposed target of this investigation is still Rocha-Ayon, who once parked in the driveway of the Saxon Ave. residence.] This affidavit copy-pasted the Saxon Ave. speculation and dragged in a completely unrelated service call from the Akron PD to this Penguin Ave. for a domestic dispute involving Tucker. This warrant was approved as well.

The lower court said the Saxon Ave. warrant (the first one obtained) was so bare bones it could not possibly justify a search. And if that warrant was bad, it invalidated the second warrant because that one was largely based on evidence recovered during the first invalid search.

The appeals court agrees. And in doing so, it provides a crystal clear description of a "bare bones" warrant -- the kind that can't be salvaged by "good faith" pleas from the government. It also points out officers utilizing warrants like these terrible ones cannot expect a judge's signature to save them from their own better judgment.

Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable where “a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate’s authorization.” One such situation is where the affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Everything about the Saxon Ave. warrant was garbage. And everything arising from that one -- the Penguin Ave. warrant -- is just more garbage. Here's the PD's bare bones warrant, stripped of its boilerplate and CopSpeak, bleeding to death in the harsh light of judicial examination.

The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit. Stripped down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested that drug dealing may have occurred there.

The court then drags the government's arguments on behalf of its terrible warrant into the same light and lets them soak in their own shame.

The government attempts to resist this conclusion by pointing to additional, allegedly “critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always— used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon stopped to purchase household items that are sometimes—but not always—used by drug traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting cocaine. Based on these additional facts, the government claims that a reasonable law enforcement officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of cocaine…"

If that's the argument the government wants to make, the court will let it. But all it does is show the officer involved in obtaining this warrant is either incredibly poorly trained or an idiot.

Contrary to the government’s assertion, no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit…

Building another warrant on the skeletal framing of the first bad warrant can't save the second warrant. The court discusses the issue, but points out it doesn't even need to reach a "good faith" decision on the second warrant. It clearly sprung from the first invalid warrant/search and is similarly nothing but unconstitutional garbage. Evidence obtained from both searches is suppressed, leaving the government with its original investigation target -- the one they arrested 135 miles away from the residences searched and in which the suspect parked his car once at only one of the residences.

It's an exception to the rule that's actually supposed to be an exception. Only the worst law enforcement actions are refused the GFE pass for the halls of justice. This isn't a win for the Fourth Amendment. It just one of the few times the government's disregard for civil liberties actually results in suppressed evidence.

Filed Under: 4th amendment, 6th circuit, akron, akron police, camiolo rocha-ayon, carl tucker, doj, drug dealer, fbi, mv gilbride, search, warrant

Exposure Of Secret TSA Surveillance Program Nets The Government More Terrorist Watchlist Litigation

from the clearly-audible-responses-to-the-'Quite-Skies'-program dept

The recent exposure of the TSA's "Quiet Skies" program by the Boston Globe is leading to more terrorist watchlist litigation. The "Quiet Skies" program sends air marshals all over the US to watch travelers swallow, shop, use the restroom, and stare at things. It's suspicionless surveillance even the air marshals disagree with, with some quoted by the Globe calling the program a worthless waste of tax dollars, if not just a vehicle for repeated Constitutional violations.

The Council of American-Islamic Relations (CAIR) is using this information in two of its lawsuits against the government. Its lawsuit against the Terrorist Screening Center -- which originated in 2016 -- will hopefully be aided by the Globe's reporting. A motion to compel discovery [PDF] seeks details on the program for use in this litigation. The filing notes the government continues to hide information about its many watchlists from the plaintiffs it represents, forcing it to rely on leaked documents to obtain information it has already requested from the government.

Throughout discovery, Plaintiffs have sought to determine, at the very least, the broad outlines of the watchlisting system. And yet, throughout discovery, Defendants have kept TSA’s Quiet Skies program hidden. Even though all indicators show that Quiet Skies is responsible for engulfing thousands of innocent Americans within the watchlisting system, the program appears in no document produced to Plaintiffs nor in any answers to Plaintiffs’ discovery questions. It was conveniently left out and not referenced; deposition questions which would have unmasked it were blocked. With this latest news, the Court should conclude that Defendants continue to improperly withhold basic watchlist information.

The motion points out this exposed secret watchlist likely explains the actions observed by one of its clients -- a possible "Quiet Skies" target -- when traveling. (It should be noted that fliers noticing they're being tailed by someone is also considered suspicious activity, especially if the flier does anything to ditch the tail or otherwise expose the surveillance.)

Plaintiff El-Shwehdi reports that once at JFK he was “shadowed” by what appeared to be a plainclothes security officer. The man followed him “with a clipboard with some paper” from “near the ticket counter,” through security, continuing while El-Shwehdi put back on his belt and shoes, and kept up the monitoring for the next “two hours” in the boarding area. The plainclothes man even tailed El-Shwehdi when he went to the bathroom, and when he went to get soup. These detailed descriptions of constant monitoring by an undercover officer map precisely onto Quiet Skies.

CAIR's new lawsuit over terrorist watchlists targets a few dozen government officials and agencies, including the FBI, DHS, TSA, TSC (Terrorist Screening Center), DOJ, and CBP. The complaint [PDF] alleges the government engages in routine suspicionless surveillance of US citizens and lawful residents, resulting in a number of harmful outcomes, including a lifetime of government snooping and severe curtailment of personal freedoms.

Through their watchlisting system, the federal government makes it known— to every law enforcement agency in the country, every part of the federal government, more than 60 foreign countries, an unknown number of private companies, international bodies, and other third parties—that the Plaintiffs should be treated as dangerous threats. The Plaintiffs’ friends, family, and others with whom the Plaintiffs associate are punished for their relationship with a watchlisting system’s target.

The Defendants know that their watchlisting system has never prevented an act of terrorism inside the United States and is completely ineffective, but they continue to expand it anyways.

Plaintiffs and almost all others targeted by the watchlisting system have never been arrested, charged, or convicted of any type of terrorism-related offense. Nonetheless, the federal government has designated them as “known or suspected terrorists,” wreaking havoc on Plaintiffs’ personal, religious and professional lives.

Stuff that's legal for Americans to do -- traveling to the Mideast, speaking Arabic, worshiping at mosques -- are all considered suspicious activities by those running the watchlists. This must be discriminatory behavior since it certainly isn't justified by any paperwork or research the government's been able to produce.

Leaked government documents as well as public governmental reports, reveal that the federal government’s terrorist watchlisting system is discriminatory, standardless, and devoid of adequate procedures. These documents include the March 2013 Watchlisting Guidance (Exhibit 1), the Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013 (Exhibit 2), the Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist (Exhibit 3), and a 2018 informational bulletin on the “Quiet Skies” program (Exhibit 4).

The fact that watchlisting radiates outward from targets means children, relatives, friends, business associates, and fellow worshipers may all be added to the government's lists simply because they have frequent contact with a target. This creates exponential expansions of watchlists with each new "connection" added, all without individual, particularized suspicion.

Recourse for targeted travelers is limited and restricted to border crossings. For those targeted and traveling from place to place in the US, there's no way to challenge the TSA's "Quiet Skies" watchlist placement. And, as the lawsuit notes, the government hasn't been forthcoming about its many watchlists, so those suing may be on others they can't even begin to challenge because no one has acknowledged their existence.

This is an extremely unfortunate state of affairs for a country that used to welcome immigrants from around the world and held itself up as the standard bearer for personal freedoms. Capitalizing on a horrific tragedy, the government as a whole has used the specter of terrorism to amass and consolidate power. The multiple secret watchlists compiled without articulable suspicion is only one symptom of the country's failure to handle a terrorist attack in a manner befitting the leader of the free world.

Filed Under: 4th amendment, quiet skies, tsa, watchlist
Companies: cair

TSA Admits 'Quiet Skies' Surveillance Program Is Useless, Promises To Continue Engaging In Useless Surveillance

from the 'no-terrorists-yet-but-you-know,-we'll-just-keep-up-the-spying-because-r dept

More news comes from the Boston Globe about the TSA's "Quiet Skies" program. Having decided the skies were too quiet, the TSA started nominating people for surveillance based on god knows what and sent air marshals all over the US to tail "suspects" as they unsuspectingly went about their travels. Some of the targets included flight attendants and law enforcement officers. To those tasked with this futile (and likely unconstitutional) surveillance, the program is a waste of time and resources, if not a full-blown civil liberties catastrophe.

To the TSA, this previously-hidden bullshit is just some more discretion-flexing on behalf of the American public to save them from terrorists it inadvertently admitted aren't even targeting aircraft anymore. Why go through the hassle of the boarding process, smuggling precursors past half-inept, half-asleep TSA agents when you can just rent a van from Home Depot and drive it into a crowd?

The TSA insists the program has value and that it will continue to send air marshals out to tail flagged randos. It also insists better education of air marshals will shut complaining marshals the hell up. But what it failed to do in a Congressional hearing, called after the Globe's expose, is actually present any evidence the program works.

On Wednesday and Thursday, TSA officials shared details of the program with congressional staffers from four committees and fielded questions in closed-door briefings.

The officials said about 5,000 US citizens had been closely monitored since March and none of them were deemed suspicious or merited further scrutiny, according to people with direct knowledge of the Thursday meeting.

THIS JUST IN:

CARTS, HORSES IN EMBARRASSING MIXUP, SAY TSA OFFICIALS
Cart-horse confusion expected to continue for the foreseeable future

The TSA had to tail 5,000 people just to determine they weren't suspicious. That's the wrong way around, constitutionally-speaking. The government isn't allowed to snoop on people until it can find a reason to snoop on people. That's not how the Fourth Amendment works. The TSA's inept comparison to cops on the beat is worse than apples in regards to oranges. Cops don't tail people to see if they're going to do something suspicious. Suspicions are in place before the surveillance starts since, most of the time, law enforcement agencies don't have the manpower/funding to tail people all over town to see if they might be up to something.

Get a load of this talking point, delivered by someone who doesn't appear to care it's directly contradicted by statements made to Congress by TSA officials.

“The program analyzes information on a passenger’s travel patterns, and through a system of checks and balances, to include robust oversight, effectively adds an additional line of defense to aviation security,” TSA spokesman James Gregory said Monday.

Bullshit. All of this is bullshit. The "robust oversight" is especially bullshit since Congress was first introduced to this program by the Globe's reporting. The TSA claimed it had informed Congressional oversight about the program but oversight members pushed back, stating they'd never heard of it.

The "line of defense" is more bullshit. A program that has, to date, surveilled 5,000 people only to discover the TSA had no reason to surveill these 5,000 people is not a "line of defense." What it actually is is what the union representing the air marshals says it is: a waste of resources.

The air marshals union, which represents many of the 2,000 to 3,000 so-called flying FAMS, criticized Quiet Skies last week, saying that the criteria of the program were unacceptable and that the public would be better served to have air marshals assigned elsewhere.

Now, the TSA is being told it will need to answer questions about its no-longer-secret surveillance program -- one it instituted without input from its oversight and without informing anyone it was putting it in place. And the program has wasted resources 5,000 times to achieve zero wins on the national security front.

Filed Under: 4th amendment, congress, oversight, quiet skies, surveillance, tsa, useless