Murder Case Upended After Police Read Phone Texts Without A Warrant

from the get-a-warrant-maybe dept

There have been a number of cases on the legality of police going through your mobile phone, and the courts are basically all over the place on rulings, with very little guidance from the Supreme Court. You can find cases where it's legal and some where it's not. The Supreme Court had a chance to clarify and punted (as it often does these days), choosing instead to tap dance around the 4th Amendment issue and deal with the case on other grounds.

Now we've got yet another ruling saying that looking at texts without a warrant violates the 4th Amendment. The case involved a six year old boy who stopped breathing and later died. His mother had called the police to report the not breathing bit... and while the police were in the house, they picked up the mother's cell phone and noticed a written (but unsent) text to her boyfriend which suggested foul play:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg

Other texts mentioned punching the kid. Not surprisingly, police used this to start a murder investigation, leading to the arrest of the kid's mother's boyfriend. Except... the court has now rejected much of the evidence because it was obtained in a manner that violated the 4th Amendment. Even though such info is clearly useful for the case, this (Rhode Island state) court didn't fall for the claim that "if it helps police, there aren't any 4th amendment concerns."

... the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police. Based on the tsunami of illegal evidence collected by the Cranston Police Department, this Court grants Defendant‘s suppression motions and excludes the State‘s core evidence from being used at trial, including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police.

The ruling will almost certainly be appealed, and it's reasonable to want to make use of any evidence that points to a potential murder suspect (especially one who killed a six year old boy!). But, at the same time, we believe in the 4th Amendment for a reason -- and we expect law enforcement to live by that in collecting evidence, or we cross over into a police state (and yes, some people think we're already there). It's the cases like these that are often the toughest, because it's so tempting to come up with some sort of excuse to allow the evidence in order to lock up someone "bad." But at the same time, you want courts to recognize the importance of the 4th Amendment for all of those other cases where people get unfairly searched without a warrant.

Filed Under: 4th amendment, privacy, search, texts, warrants

Twitter Forced To Hand Over Occupy Protestor's Info

from the privacy? dept

We recently wrote about Twitter standing up for a user, Malcolm Harris, who had participated in the Occupy Wall St. protests, and whose info was sought by the government under a 2703(d) order (which has fewer protections than an ordinary warrant). Twitter told Harris about the order, and Harris sought to have it blocked -- but the court claimed he had no standing to do so, as it was just an issue between the government and Twitter. Twitter pushed back, noting that individuals control the content of their own account, so Harris should have standing. Unfortunately, a NYC judge has told Twitter to give up Harris' info, though it did say that the government would need to get a warrant for the last day's worth of info, due to a technicality on timing. The court basically punts on the larger issues, focusing on the fact that most of the information requested, Harris' tweets, are already public, and thus there's little to be concerned about. Of course, if that's the case, it's unclear why the government needs to request info from Twitter in the first place...

Filed Under: malcolm harris, occupy protests, privacy, standing, warrants
Companies: twitter

Congress Plays See-No-Evil, Pretend-There's-No-Evil, Let-The-Evil-Continue With NSA Domestic Spying

from the wtf dept

We're still completely perplexed at how anyone in Congress could recognize that the NSA has refused to tell Congress how often it's violated the privacy of Americans without a warrant under the FISA Amendments Act (FAA) -- and then still vote to renew it. What kind of "oversight" is that? As Julian Sanchez recently wrote, it's no oversight at all. As he notes, the law requires the NSA to "prevent" the spying on folks when both parties in communication are in the US -- but here, the NSA is admitting that it has no mechanism to actually do that. Either (a) it's lying or (b) it's admitting that it cannot do what the law requires.

If we care about the spirit as well as the letter of that constraint being respected, it ought to be a little disturbing that the NSA has admitted it doesn’t have any systematic mechanism for identifying communications with U.S. endpoints. Similar considerations apply to the “minimization procedures” which are supposed to limit the retention and dissemination of information about U.S. persons: How meaningfully can these be applied if there’s no systematic effort to detect when a U.S. person is party to a communication?

Normally, this should be the point at which Congress steps in and says "no more" to the NSA. Instead, it shuns those who even ask the basic questions -- and as in the case of Rep. Dan Lungren, pretends that as long as no one proves to them that the NSA is abusing its power, there's simply no reason to demand evidence. That's not oversight. That's willful ignorance.

And... given that they're choosing to ignore their own oversight obligations over the NSA's spying on Americans, it should come as no surprise that the House Intelligence Committee unanimously voted to extend the FAA for five more years. Why not? It's not like Congress is actually going to make sure that the NSA is playing by the rules. The NSA apparently just needs to say that it would be too much work to do what the law requires and Congress says, "here, have a gift of five more years to spy on Americans against the specifics of the law." And, once again, as Sanchez points out, there are plenty of ways that the NSA could at least estimate how many Americans they're spying on.

But why would it do that? As Sanchez also points out, the NSA seems to redact anything even remotely embarrassing from its reports... including data on how often it failed to follow the law:

More generally, these reports contain a good deal of redacted statistical information that there is simply no plausible excuse for keeping secret. A table of “statistical data relating to compliance incidents,” for example, is included—but entirely blacked out. Are we to believe that the national security of the United States would be imperiled if the public knew the number of times the NSA had difficulty following the law? The reviewers conclude that the “number of compliance incidents remains small, particularly when compared with the total amount of activity”—but is there any legitimate reason for barring the public from knowing what counts as a “small” number, or just how massive the “total amount of activity” truly is?

How do folks in Congress who vote for this kind of thing defend such actions? They can't say that it's to protect Americans, when they refuse to even seek to get the data on whether or not Americans are being illegally spied upon.

Filed Under: congress, fisa, fisa amendments act, nsa, oversight, privacy, spying, warrants

FBI Turns Back On 2,750 Of The 3,000 GPS Devices It Turned Off For Lack Of A Warrant

from the spy-spy-spy-away dept

In January, we wrote about the Supreme Court's somewhat surprising ruling on GPS monitoring by law enforcement, in which it suggested (but didn't fully say) that putting a GPS device on a car might need a warrant -- a pretty easy process that the FBI just didn't want to go through. Following this, we noted a report saying that the FBI scrambled to turn off 3,000 such devices that had been placed without a warrant.

However, in an NPR report about just how unhappy the FBI is about all of this, it notes that the FBI actually scrambled to file for warrants on most of those 3,000 devices, such that only 250 were permanently shut off. And yet it's still complaining about this whole "getting a warrant" thing. As Tim Lee notes, FBI director Robert Mueller is basically complaining to Congress that it's just so hard:

In Congressional testimony last month, FBI Director Robert Meuller said the ruling "will inhibit our ability" to do GPS tracking "in a number of surveillances where it has been tremendously beneficial." Mueller said that in cases where they didn't have probable cause, the FBI is forced to deploy teams of six to eight people to track suspects the old-fashioned way.

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR.

But, uh, isn't that why we require a warrant? It's supposed to be hard to spy on people. That's kind of one of the key principles of the Constitution. Again, as Lee notes:

Of course, that's kind of the point. Law enforcement's job would be a lot easier if we just did away with the Fourth Amendment and gave the police unfettered spying powers. But that would open the door to abuses of power, so the founders wisely limited government searches to cases where the government could demonstrate it had probable cause to believe that a crime had been committed.

Separately, the fact that so many of the devices were able to be turned back on via a warrant suggests that this intermediary review step isn't really a problem for the FBI in most cases. But it's one that likely stops significant abuse of the system.

Filed Under: fbi, gps, robert mueller, spying, warrants

NSA Insists It Doesn't Have 'The Ability' To Spy On American Emails, Texts, Etc.

from the are-they-just-lying? dept

Earlier this week, we wrote about an excellent and detailed article in Wired about the efforts by the NSA to collect and store pretty much all communications data they could get their hands on -- whether originating in the US or not (despite clear rules that the NSA is only supposed to deal with foreign threats and communications). Some of that report merely confirmed earlier stories and news reports about programs like the warrantless wiretapping program the NSA runs, as well as deals with major telcos to allow NSA equipment directly on the network at key points to collect data. But parts of it broke some new news about the extent and depth of the NSA's data collection program, as well as its efforts to break the encryption that protects certain communications. As we noted, it was all pretty terrifying.

The article appears to have caught the attention of Congress as well, with Rep. Hank Johnson directly asking NSA boss General Keith Alexander (who you may remember from his FUD warnings about Anonymous taking down power grids) about whether or not various points made in the article are true, and Alexander denies them all, insisting that the NSA has neither the technical nor the legal capabilities to capture and sift through communications from Americans. He clearly states that "the NSA does not have the ability to do that in the United States," which is almost certainly untrue. He repeatedly states that for content in the US, the NSA would need to get a warrant to get this information. To be fair, he may be responding very carefully to Johnson's question, which is directed at the contents of emails or phone conversations -- which does require a warrant. Many of the bigger questions are less about the direct content of the communications but the metadata around those communications. Though, there are some questions about access to the actual content as well, especially when it comes to email. Alexander also insists that the NSA defers to the FBI on matters involving people in the US, even though many, many reports have suggested this is not actually true.

Johnson does press Alexander a bit on the question of whether it's the legal or technical parts that are holding the NSA back, and Alexander repeats that they simply don't have the technical capabilities:

"We don’t have the technical insights in the United States. In other words, you have to have something to intercept, or some way of doing that either by going to a service provider with a warrant or you have to be collecting in that area. We’re not authorized to do that, nor do we have the equipment in the United States to collect that kind of information."

There is a slight pause between "technical" and "insights" in the way he says it, as if he's searching for the proper word before choosing insights, but he later clearly says they don't have the equipment to do so -- which seems to contradict a ton of reports out there from pretty credible sources within the NSA.

As Ryan Singel writes at Wired:

It’s hard to tell here whether Alexander is parsing the questions closely, misspeaking or telling the truth. The heads of the intelligence service have a long tradition of misspeaking or telling untruths that advance their agenda. President George Bush himself on the re-election campaign trail said that no American had been wiretapped without a warrant, which was plainly false, according to numerous news stories and the government’s own admissions of the program.

In the aftermath of those half-truths, the Congress passed, and Bush signed into law, the FISA Amendments Act, which re-wrote the nation’s surveillance laws to give the NSA a much freer hand to wiretap American infrastructure wholesale.

I know that the assumption many will make is that he's flat out lying, and that wouldn't surprise me, but I do wonder if he's trying to pick his words carefully to get around lying—or if he knows he's so protected that he can just say whatever he wants without much fear of ever being called on it.

Filed Under: keith alexander, nsa, privacy, spying, warrants, wiretapping

RIAA Law Lets Law Enforcement Ignore 4th Amendment, Search Private Property With No Warrants

from the the-infringement-police dept

One of my favorite historical stories that really demonstrates how a "legacy" industry can take regulatory capture to extreme lengths to protect their monopoly rights is the story of the French button-makers guild in 1666, as relayed by famed economic historian Robert Heilbroner:

The question has come up whether a guild master of the weaving industry should be allowed to try an innovation in his product. The verdict: 'If a cloth weaver intends to process a piece according to his own invention, he must not set it on the loom, but should obtain permission from the judges of the town to employ the number and length of threads that he desires, after the question has been considered by four of the oldest merchants and four of the oldest weavers of the guild.' One can imagine how many suggestions for change were tolerated.

Shortly after the matter of cloth weaving has been disposed of, the button makers guild raises a cry of outrage; the tailors are beginning to make buttons out of cloth, an unheard-of thing. The government, indignant that an innovation should threaten a settled industry, imposes a fine on the cloth-button makers. But the wardens of the button guild are not yet satisfied. They demand the right to search people's homes and wardrobes and fine and even arrest them on the streets if they are seen wearing these subversive goods."

It's not hard to see the RIAA or the MPAA in that description of the old guilds, and it seems like they're trying to take the comparison even further. As we covered back in May, the RIAA has been pushing really, really hard for California to pass a law that would allow for warrantless searches of private property, specifically of anyone involved in reproducing CDs or DVDs for "commercial" purposes. The RIAA was so cavalier about this, that a spokesperson even said: "I don't think the scope of the search is something a regulator needs to be worried about." In other words, no government oversight. Just go ahead and search private businesses.

This seemed to be so obviously against the 4th Amendment that it seemed ridiculous that anyone would seriously consider such a bill. So, of course, Governor Jerry Brown of California just signed it into law. The law decimates the 4th Amendment, and says that law enforcement has the right to search the premises of anyone making optical discs for commercial purposes, without any warning or warrant. Hell, even the state's own analysis of the bill warns that it's not sure that the bill "would stand up to constitutional scrutiny."

It's beginning to sound like the French button makers guild getting to enter your homes and closets to find those dreaded "non-compliant" buttons. It's getting so ridiculous that even those who are generally supporters of the RIAA/MPAA's positions are saying this bill goes way too far, noting that it grants way too much power to law enforcement (often at the urging of private industry) to go on "fishing expeditions" at companies they dislike. And let's not even get started on what kind of precedent it sets when you can so easily remove the Constitutional requirement for a warrant.

Filed Under: 4th amendment, private property, warrants
Companies: riaa

Details Emerging On Stingray Technology, Allowing Feds To Locate People By Pretending To Be Cell Towers

from the without-warrants-of-course dept

More details are emerging on yet another secret program used by federal law enforcement to locate people using their mobile phones... but without obtaining warrants. The WSJ has the scoop on what's generically referred to as Stingray tracking devices (even if the actual products go by a few names, and only some are actually called Stingrays). They appear to be devices that mimic mobile phone towers. The feds use them hoping to have the phones of people they're tracking connect to the device (instead of a real mobile phone tower), and then using signal strength to figure out how far away they are. Do that a few times and you can triangulate someone's location, even if they're not making a call, and without having to ask the telcos for any location info (which, so far, they've been more than happy to turn over anyway).

They apparently used this technology to arrest a guy named Daniel David Rigmaiden, but he's now causing some trouble. That's because he's asking for the details of how he was found, and the court seems equally concerned that this was done outside of the bounds of the Fourth Amendment. It won't surprise you to discover that law enforcement regularly uses such Stingrays without a warrant. Apparently, the court is skeptical of the government's claim that it doesn't need a warrant to use such a device:

In a February hearing, according to a transcript, Judge Campbell asked the prosecutor, "Were there warrants obtained in connection with the use of this device?"

The prosecutor, Frederick A. Battista, said the government obtained a "court order that satisfied [the] language" in the federal law on warrants. The judge then asked how an order or warrant could have been obtained without telling the judge what technology was being used. Mr. Battista said: "It was a standard practice, your honor."

Judge Campbell responded that it "can be litigated whether those orders were appropriate."

Last week, the feds argued that they should not have to explain how they tracked Rigmaiden, because it would reveal too much information "since its public release could harm law enforcement efforts by compromising future use of the equipment." So, we can't tell you if the tracking system we use violates the 4th Amendment, because, you know, you might stop us from using it. Very compelling, but all too typical of law enforcement these days. Hopefully the court rejects the argument.

Later in the article, various law enforcement officials say that they can use the device since it only detects location, but doesn't eavesdrop. That's pretty questionable. The 4th Amendment doesn't make such a distinction. In fact, reading the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It would seem that using such a device to locate a person in their house without a warrant seems to clearly violate the text of the Amendment. Hopefully the court will agree.

Filed Under: 4th amendment, privacy, stingray, tracking, warrants

Surprise: Federal Court Says Warrant Needed For Mobile Phone Location Info

from the didn't-see-that-coming dept

There have been some mixed rulings on whether or not the government needs a warrant and to show probable cause (a la what's left of the 4th Amendment) in order to get mobile phone location info. Courts have ruled in different ways, but the federal courts, for the most part, have been much more agreeable to saying no warrant is needed (state court seem to lean the other way). However, in a bit of a surprise, a federal court went the other way and said a warrant is needed under the 4th Amendment.

The court actually lays out the issue directly, and worries about what it means if the government can just get this info without showing probable cause:

What does this mean for ordinary Americans? That at all times, our physical movements are being monitored and recorded, and once the Government can make a showing of less-than-probable- cause, it may obtain these records of our movements, study the map our lives, and learn the many things we reveal about ourselves through our physical presence.

After going through the relevant (and at times conflicting) laws and case law, the court notes that while general location info may be public, rather than private info, a massive collection of such info seems to go over the line. That's especially true when the government can access multiple records from multiple people:

The cell-site-location records at issue here currently enable the tracking of the vast majority of Americans. Thus, the collection of cell-site-location records effectively enables "mass" or "wholesale" electronic surveillance, and raises greater Fourth Amendment concerns than a single electronically surveilled car trip. This further supports the court's conclusion that cell-phone users maintain a reasonable expectation of privacy in long-term cell-site- location records and that the Government's obtaining these records constitutes a Fourth Amendment search.

The court also dives into the controversy over the third party doctrine, which basically says that once you "give up" information to a third party, you no longer have 4th Amendment protections over it -- and in this case, the government argues that users have given up their location info to mobile operators. The court notes that the third party doctrine does still apply to such info, but that it should not apply to cumulative records, saying that this is an important limitation on the third party doctrine.

This court concludes that cumulative cell-site-location records implicate sufficiently serious protected privacy concerns that an exception to the third-party- disclosure doctrine should apply to them, as it does to content, to prohibit undue governmental intrusion. 7 Consequently, the court concludes that an exception to the third-party-disclosure doctrine applies here because cell-phone users have a reasonable expectation of privacy in cumulative cell-site-location records, despite the fact that those records are collected and stored by a third party.

Finally, and most importantly, the court makes a plain language rejection of the excuses often used by the government to pick away at the 4th Amendment:

The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by "choosing" to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records.

It's definitely a compelling and well-reasoned argument from Judge Nicholas Garaufis, and we hope that other courts will follow. However, we fear that he walks such a fine line in distinguishing this ruling from other cases, that it will be way too easy for higher courts to overturn this ruling.

Filed Under: 4th amendment, location data, mobile phone, privacy, third party doctrine, warrants