Law Enforcement: Traveling From Anywhere To Anywhere Is Suspicious Behavior

from the a-nation-of-300-million-drug-dealers dept

Want to travel from anywhere to anywhere in the United States without being hassled by law enforcement officers? Good luck with that, citizen.

USA Today's Brad Heath pointed out an interesting footnote in an asset forfeiture filing that made the assertion that traveling from Chicago to Los Angeles is inherently suspicious. (One presumes the opposite is also true.)

If you can't see the embed, the government's footnoted assertion reads:

Chicago is a known consumer city for narcotics and Los Angeles is a known source city where narcotics can be purchased.

Also of note: suspect had a backpack, an item used to carry stuff -- something no legitimate traveler would possess.

Turns out this sort of ridiculous assertion isn't limited to this particular filing. Law enforcement agencies are of the firm belief that traveling between any cities where drugs might be "consumed" (which would be every city in the US) and any cities where drugs might be sold (again, the list is long and inclusive) is a healthy indicator of drug-related activity.

The following map lists "known" drug "source" [red] and "destination" [blue] cities, along with links to relevant court filings or statements by law enforcement officials. Pretty much traveling from any large city to anywhere else could be construed as a drug run.


Even though the courts are sometimes unimpressed by this facet of reasonable suspicion, it's still routinely used to justify searches of all things.

US v. Green

Once we discount the facts with which we find weaknesses, we are left with Green's arrival on a plane from a known source city, and her vagueness about the purpose of her trip. These facts are insufficient to demonstrate a reasonable articulable suspicion of criminal activity.

US v. Newland

Given that nearly every stretch of interstate is considered a drug corridor, the fact that a stop occurred on any such route is almost meaningless. See United States v. Wisniewksi, 358 F. Supp. 2d 1074, 1093 (D. Utah 2005) (“[T]raveling on a ‘drug corridor’ cannot reasonably support a suspicion that the traveler is carrying contraband. To so hold would give law enforcement officers reasonable suspicion that every vehicle on every major—and many minor—thoroughfares throughout this country was transporting drugs.”), aff’d, 192 Fed. App’x 749 (10th Cir. 2006). Furthermore, because of courts’ willingness to designate various cities and states as “source” regions for narcotics, it is likely that most major roads in this country could be considered drug corridors. See Foreman, 369 F.3d at 795 (Gregory, J., concurring in part and dissenting in part); United States v. Beck, 140 F.3d 1129, 1138 n.3 38 (8th Cir. 1998) (citing cases recognizing, inter alia, Colorado, Texas, Florida, Arizona, the entire West Coast, New Jersey, New York City, Phoenix, Fort Lauderdale, Houston, Chicago, and Dallas as drug source cities or states); State v. Quirk, 842 N.E.2d 334, 343 (Ind. 2006) (“[C]onsidering the substantial number of states and cities that have been designated as sources of drugs, a motorist, in our highly mobile society, would be hard pressed not to travel either from, to, or through a drug-source jurisdiction.”).

Speaking of which, if you're not flying, you're probably driving. Nearly every major highway in the US can be considered a "drug corridor," depending on who you ask. These "drug corridors," also known as "interstate highways," are prime trolling spots for asset forfeiture. Traveling along these roads subjects out-of-state travelers to instant suspicion and warrantless searches, simply because these roads are also used by drug traffickers. Good luck avoiding using one of these highways during a road trip.


Now, some of you might be saying, "Every one of these cases cited resulted in a law enforcement officer finding drugs! They're right to be so suspicious!" Well, arrestees have more motivation than most to challenge the constitutionality of a search. Many innocent people who have been illegally searched simply because they're on one of these roads/in any major airport won't file a lawsuit. In fact, many people probably believe law enforcement has the right to search people and vehicles simply because of their originating cities and/or destinations. On top of that, many searches and seizures are tied to asset forfeiture, where no conviction is ever obtained and the amount of money seized suddenly seems unimportant when a lawyer informs someone they'd need $5000 or so to even consider fighting the uphill battle to liberate the seized funds.

And if you don't believe me, here's Eighth Circuit Appeals Court Chief Judge Richard Arnold -- from all the way back in 1992 -- explaining the dangers inherent to viewing travellers as drug traffickers simply because of where they're going or where they've come from.

The White opinion is less than three years old, and none of our cases decided since that time has questioned it or thrown doubt upon it in any way. There are differences between the present facts and those in White, to be sure, as there always are, but the differences, on balance, do not place this search and seizure appreciably closer to the line of legality than what happened in White. Like Weaver, White was “very nervous,” he arrived from a source city, the flight was early in the morning, and White had no checked luggage. Some of the facts in White, indeed, appear stronger than the present case: for example, White had purchased his ticket with cash, and it was a one-way ticket. The agents did not know whether Weaver had bought his ticket for cash or not, or whether it was one way. Weaver did not have a copy of his ticket, but sometimes innocent people lose their tickets, to say nothing of ticket coupons which may be of no further use to them. I have lost tickets myself. Weaver had no identification, or at least declined to produce any, but this was his undoubted right: we have not yet come to the point in this country (except maybe in airports) when citizens must identify themselves to public employees.

[...]

Airports are on the verge of becoming war zones, where anyone is liable to be stopped, questioned, and even searched merely on the basis of the on-the-spot exercise of discretion by police officers. The liberty of the citizen, in my view, is seriously threatened by this practice. The sanctity of private property, a precious human right, is endangered. It’s hard to work up much sympathy for Weaver. He’s getting what he deserves, in a sense. What is missing here, though, is an awareness that law enforcement is a broad concept. It includes enforcement of the Bill of Rights, as well as enforcement of criminal statutes. Cases in which innocent travelers are stopped and impeded in their lawful activities don’t come to court. They go on their way, too busy to bring a lawsuit against the officious agents who have detained them. If the Fourth Amendment is to be enforced, therefore, it must be by way of motions to suppress in cases like this.

This is America, post-declaration of (drug) war. This has been 40 years in development. Now, we've added the faulty assumptions of the post-9/11 "national security above all" mindset to it. Traveling from anywhere to anywhere is to invite the suspicions of our nation's domestic "warriors" who patrol our airports and highways, ever-vigilant for the opportunity to rip open luggage or toss a rented car in hopes of finding drugs… or better yet, cold, hard cash.

Filed Under: asset forfeiture, doj, probable cause, suspicion, travel

4th Amendment Lives: Court Tells US Government Get A Warrant If It Wants Mobile Phone Location Info

from the look-at-that dept

A potentially big ruling came out of the courtroom of Judge Lucy Koh yesterday, in which she affirmed a magistrate judge's decision to tell the government to get a warrant if it wants to obtain historical location info about certain "target" mobile phones (officially known as "Cell Site Location Info" -- or CSLI). The government sought to use a provision of the Stored Communications Act (a part of ECPA, the Electronic Communications Privacy Act) to demand this info without a warrant -- using a much lower standard: "specific and articulable facts" rather than the all important "probable cause." Judge Koh says that's doesn't pass 4th Amendment muster, relying heavily on the important Supreme Court rulings in the Jones case, involving attaching a GPS device to a car, and the Riley case about searching mobile phones.

Based on the preceding U.S. Supreme Court cases, the following principles are manifest: (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. Applying those principles to the information sought here by the government, the Court finds that individuals have an expectation of privacy in the historical CSLI associated with their cell phones, and that such an expectation is one that society is willing to recognize as reasonable.

This is big. Obviously, the government is likely to appeal, and so as a first pass, this might seem meaningless. We've still got an appeals court (and possibly a rehearing) and a Supreme Court to get to, but as a first ruling, it's a good one. Koh's analysis is pretty thorough. It notes the similarities to both the Jones and Riley cases:

Here, as in Jones, the government seeks permission to track the movement of individuals—without a warrant—over an extended period of time and by electronic means. CSLI, like GPS, can provide the government with a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Riley, 134 S. Ct. at 2490 (quoting Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)). With the proliferation of smaller and smaller base stations such as microcells, picocells, and femtocells—which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home, ...—the government is able to use historical CSLI to track an individual’s past whereabouts with ever increasing precision. See Riley, 134 S. Ct. at 2490 (explaining that a cell phone’s “[h]istoric location information . . . can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building”). At oral argument, the government agreed that in some instances CSLI could locate an individual within her home, ... and did not dispute that CSLI will become more precise as the number of cell towers continues to multiply.... This admission is of constitutional significance because rules adopted under the Fourth Amendment “must take account of more sophisticated systems that are already in use or in development.”...

In fact, the information the government seeks here is arguably more invasive of an individual’s expectation of privacy than the GPS device attached to the defendant’s car in Jones. This is so for two reasons. First, as the government conceded at the hearing, over the course of sixty days an individual will invariably enter constitutionally protected areas, such as private residences.... Tracking a person’s movements inside the home matters for Fourth Amendment purposes because “private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” Karo, 468 U.S. at 714; see also Kyllo, 533 U.S. at 31 (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (internal quotation marks omitted)). As one court put it, “Because cellular telephone users tend to keep their phone on their person or very close by, placing a particular cellular telephone within a home is essentially the corollary of locating the user within the home.” ....

Second, the government conceded at oral argument that, compared to GPS tracking of a car, the government will “get more information, more data points, on the cell phone” via historical CSLI... (“But, yes, of course the person has the phone more than they have their car, most people at least do, so it gives [the government] more data.”). Cell phones generate far more location data because, unlike the vehicle in Jones, cell phones typically accompany the user wherever she goes.... Indeed, according to a survey cited by the U.S. Supreme Court in Riley, “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”....

Judge Koh points to some survey data from Pew (sent in by EFF) noting that many, many people consider their location information to be "sensitive information" and, on top of that, the fact that CSLI is generated even if someone turns off the GPS or "location data" features on their phone -- meaning they can't even opt out of generating such information to try to keep it private.

More importantly, Judge Koh takes on the issue of the infamous third party doctrine and the awful Smith v. Maryland precedent, which says you have no expectation of privacy in data held by third parties. To date, the Supreme Court has punted on this issue in the Jones and Riley cases. However, Koh addresses the issue head on, and says the third party doctrine should not apply to phone location data like this. The key issue: in the Smith case, the "information" that was given to the third party was the phone number being dialed. This was information that the caller voluntarily conveyed to the phone company in order to make the call. Judge Koh points out that this information is quite different:

Cell phone users, by contrast, do not “voluntarily convey” their location to the cellular service provider in the manner contemplated by Miller and Smith. This is especially true when historical CSLI is generated just because the cell phone is on, such as when cell phone apps are sending and receiving data in the background or when the cell phone is “pinging” a nearby cell tower. As the government’s FBI special agent explained, “CSLI for a cellular telephone may still be generated in the absence of user interaction with a cellular telephone.” .... “For example,” the special agent continued, CSLI may be generated by “applications that continually run in the background that send and receive data (e.g. email applications).” ... At oral argument, the government confirmed that its § 2703(d) application authorizes the government to obtain historical CSLI generated by such activities.

[....] In so doing, a cell phone periodically identifies itself to the closest cell tower—not necessarily the closest cell tower geographically, but the one with the strongest radio signal—as it moves through its network’s coverage area.... This process, known as “registration” or “pinging,” facilitates the making and receiving of calls, the sending and receiving of text messages, and the sending and receiving of cell phone data.... Pinging nearby cell towers is automatic and occurs whenever the phone is on, without the user’s input or control.... This sort of pinging happens every seven to nine minutes....

In Miller and Smith, the individual knew with certainty the information that was being conveyed and the third party to which the conveyance was made. Cell phone users, on the other hand, enjoy far less certainty with respect to CSLI. CSLI, in contrast to deposit slips or digits on a telephone, is neither tangible nor visible to a cell phone user. When the telephone user in Smith received his monthly bill from the phone company, the numbers he dialed would appear.... The CSLI generated by a user’s cell phone makes no such appearance.... Rather, because CSLI is generated automatically whenever a cell tower detects radio waves from a cell phone, a cell phone user typically does not know that her phone is communicating with a cell tower, much less the specific cell tower with which her phone is communicating.... It may be, as the government explained, that a cell phone connects to “many towers” during the length of a call,... and the tower to which a cell phone connects is not necessarily the closest one geographically.... Moreover, when an app on the user’s phone is continually running in the background, ... she may not be aware that the cell phone in her pocket is generating CSLI in the first place.

And thus, even with the third party doctrine, this information is quite different than that discussed in the Smith v. Maryland case, which involved phone numbers dialed:

In light of the foregoing, the Court concludes that historical CSLI generated via continuously operating apps or automatic pinging does not amount to a voluntary conveyance of the user’s location twenty-four hours a day for sixty days. Such data, it is clear, may be generated with far less intent, awareness, or affirmative conduct on the part of the user than what was at issue in Miller and Smith. Unlike the depositor in Miller who affirmatively conveyed checks and deposit slips to the bank, or the telephone user in Smith who affirmatively dialed the numbers recorded by the pen register, a cell phone user may generate historical CSLI simply because her phone is on and without committing any affirmative act or knowledge that CSLI is being generated. Smith, for example, never contemplated the disclosure of information while the landline telephone was not even in use.

This sort of passive generation of CSLI does not amount to a voluntary conveyance under the third-party doctrine.

Judge Koh notes that this ruling isn't rejecting the ruling in Smith -- rightly noting that only the Supreme Court can determine that it's no longer good law -- but notes that the ruling there is different enough from this one that it does not apply. Ideally, the Supreme Court will get around to rejecting the ridiculous third party doctrine altogether, but if it must stand, a ruling like this is helpful in returning just a bit of 4th Amendment protected privacy to the American public.

Filed Under: 4th amendment, csli, ecpa, location information, lucy koh, privacy, probable cause, sca, warrant
Companies: aclu, eff

'Insert Probable Cause:' Pen Register Boilerplate Hides Sheriff's Department's Hundreds Of Stingray Deployments

from the nothing-to-see-here-[hides-everything] dept

Despite the combined secretive efforts of nearly every law enforcement agency everywhere (including the FBI), some more Stingray documents have made their way into the public domain, thanks to an FOIA request by Cyrus Farivar of Ars Technica. The San Bernardino Sheriff's Department has released 17 pages of documents that show -- among other things -- that it never seeks a warrant before deploying Stingrays.

The sheriff in San Bernardino County—east of Los Angeles County—has deployed a stingray hundreds of times without a warrant, and under questionable judicial authority.

In response to a public records request, the San Bernardino Sheriff’s Department (SBSD) sent Ars, among other outlets, a rare example of a template for a "pen register and trap and trace order" application. (In the letter, county lawyers claimed this was a warrant application template, when it clearly is not.) The SBSD is the law enforcement agency for the entire county, the 12th-most populous county in the United States, and the fifth-most populous in California.

Ah, the old "an IMSI catcher is really just a high-tech pen register" argument, one that has been deployed by other law enforcement agencies. It really isn't. A pen register is a targeted order seeking calls made from a specific number. A Stingray hoovers up everything in its vicinity (including, in some cases, communications), with disposal of "non-hit" calls/communications left to the discretion of the law enforcement agency that has already hidden its use of this technology from the magistrate signing the order.

This Sheriff's Department hides its use behind pen register orders -- which is either a front-loaded lie or back-end reconstruction, but either way, it definitely is not a "warrant application." This agency has deployed its Stingray 303 times -- apparently often enough that the department felt it wise to streamline its bogus PR/TT orders using a fill-in-the-blank template.

DetectiveName, a Detective for the San Bernardino County Sheriff's Department. hereby applies to the Court for an Order (1) authorizing the use of a PEN register on the telephone lines currently designated by the numbers; Telephone Number (The “Telephone Line”); (2) authorizing the use of a trap-and-trace device on the Telephone Line: and (3) requiring the disclosure of subscriber name and address, whether listed or unlisted. for numbers called by the Telephone Line or numbers calling the Telephone Line. or found during investigation of this case upon oral or written demand of agents of the San Bernardino County Sheriff‘s Department. In support of this application, he states the following:

1) I am a detective for the San Bernardino County Sheriff's Departmant and am requesting an Order authorizing the installation and use of a PEN register and a trap-and-trace device. and the disclosure of subscriber information.

2) I certify that the San Bernardino County Sheriffs Department is conducting a criminal investigation of Crime in connection with possible violations of Crime Definition. It is believed that the below named persons and other unknowns are using the Telephone Lines in furtherance of the subject offenses and that the information likely to be obtained from the PEN register and the trap-and-trace devices is relevant to the ongoing criminal investigation being conducted by the above named agency.

AFFIDAVIT "Insert Probable Cause"

It's that last line -- the one that implies PC is almost an afterthought -- that is a bit problematic. The Sheriff's Department obviously wants to hide its Stingray use from magistrate judges (as per the now-standard non-disclosure agreement with the FBI and DOJ) but its application includes something not needed to acquire pen register orders: probable cause.

Curiously, in the SBSD template application, it includes a section for the detective to "insert probable cause," which is not required under the federal pen register statute.

"The fact that order requires probable cause but isn’t labelled a warrant is also interesting," [Hanni] Fakhoury [EFF] said. "[It's] definitely good that the Sheriff and the court are using the probable cause standard but a warrant is about more than just probable cause; a warrant also requires particularity and continuing oversight by the judge who has to review the inventory and receipt to make sure only authorized things were taken."

"So it’s like this order does some of the stuff a warrant would do, but not all," he said.

And, for whatever reason, also included in the responsive document is what appears to be a boilerplate form for judicial approval of (faux) pen register requests. It certainly gives the appearance of judicial rubber stamping (which, considering the low evidentiary bar for actual pen register order requests, isn't that surprising), but it may be nothing more than an example of an approved order for use in training or as reference material.

Notably, the documents include the NDA agreement with the FBI and DOJ, which states the San Bernardino Sheriff's Department is to route FOIA requests through the feds. Did it? The documents returned here don't technically fall into the areas the agreement specifies (mainly Harris Corp. docs that would expose technical details, etc.), but similar requests have returned fewer documents, with the standard NDA being cited as justification for withholding documents. It's far too early for the DOJ's plan to eventually compel the release of more Stingray documents to have kicked in (something like this seems to take at least a half-decade to implement), so it may be that the Sheriff's Department made its own logical determination as to what fell outside of the FBI's many FOIA restrictions. Still, it's considered bad form to show the public how your agency abuses its legal authorities to hide its surveillance activities.

Filed Under: 4th amendment, imsi catcher, pen register, probable cause, san bernardino, sheriff's department, stingray

Court Shuts Down NYPD's Argument That When Searching For Black Male Suspects, Any Black Male Will Do

from the stop-and-friskiness-costs-NYPD-a-conviction dept

Racial profiling certainly appears to be a problem for some law enforcement agencies. It's not often you hear the government arguing that it should be allowed to profile citizens racially, but that's exactly what it did. Unsurprisingly, the government body arguing for the right to search any black male simply because a black male is being sought is the NYPD -- an argument which highlights the sort of behavior its "stop and frisk" program encouraged.

A couple of years ago, the NYPD was searching for a robbery suspect with the following description:

On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.

In addition, one of officers had direct knowledge of Butler's physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided -- after a fruitless ninety-minute search -- that another black male could be made to fit the description.

[A]t about 5:00 in the afternoon, when it was still light out -- [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.

Watson was in the vicinity of the description, but didn't necessarily fit it. But when Watson's later actions proved he wasn't the sought suspect, the officers tried to pin their illegal search on something else.

The officers testified that when they first caught sight of Watson, they “believed” he was Butler. At that time, moreover, he was with two other individuals and appeared to be engaged in a drug sale. After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car. Officer Vaccaro then immediately drew his gun and, approaching the three men from behind, “announced himself as a police officer.”

Watson was then searched for weapons and contraband by the officers, who found 27 baggies of crack in his pockets. That was the officers' take on the events leading up to the search. Watson, however, argued that he was not engaged in a drug deal (although he was carrying a weapon). He was instead walking with a friend when he was ordered to turn around by the NYPD officers. One of the officers asked Watson if he was Butler, which he (obviously) denied. He then handed his ID card to the officers. The officers then asked if he was carrying any contraband, which he (obviously, but for different reasons) denied. The officers performed the search anyway, despite lacking the reasonable suspicion to do so and being well-aware they weren't dealing with the robbery suspect they were looking for.

This search was the officers' undoing.

In an oral ruling delivered from the bench, the district court found that the search was unconstitutional for two reasons. The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.

Second, and of relevance here, the district court determined that, even assuming arguendo that the officers would have had authority to search Butler if they had encountered him, the search of Watson was objectively unreasonable because the officers had no reasonable basis to believe he was Butler and did not in fact believe he was Butler. Furthermore, the officers had no alternative ground to search Watson, for, as the district court found, the officers did not observe any hand signals indicative of a drug transaction; no third person existed or escaped from the scene; and Watson’s coat was closed and the butt of his gun was concealed.

Judge Scheindlin -- who has never been one to oblige the NYPD's excesses -- made it clear in her ruling that the officers had no reason to search Watson, no matter which line of logic it pursued.

Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing.

In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.

The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.

The NYPD appealed this decision, using some truly regrettable arguments -- ones that not only suggest racial profiling might be OK because people sometimes have certain features in common, but that its officers are sometimes so visually impaired they can't tell the difference between the person depicted on a NYPD "ID card" and the person standing right in front of them, presenting identification that proves otherwise.

The Government argues, inter alia, that, to the extent that the district court’s finding that the two men do not look alike was based on its in-person observation of Watson, we should discredit it because the district court had an extended opportunity to view Watson in a well-lit courtroom, whereas Officer Vaccaro viewed him for only a minute. But the testimony in the record shows that it was light out at the time of the stop, and that, once he exited his car, Officer Vaccaro’s view was not impaired. A material difference in skin tone, facial features, and height is not something that takes a long time to process. Thus, we see no reason to conclude that the factual findings of the district court are clearly erroneous.

Quite obviously, this isn't the outcome the NYPD's lawyers were hoping for when it laid down its suspect arguments. But even if this wasn't exactly what it meant, this was the only conclusion the court could reach. And it's a severely ugly conclusion.

The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.

The officers had no reason to search Watson because he didn't physically match the description and had provided ID stating the contrary. Ah, but some will say, what about the drug deal the officers observed? Well, that description of the events was considered so contradictory to other testimony that the lower court discredited it completely. And, while the officers first attempted to justify their search with the "we saw a drug deal" story (rather than basing it on the momentary "belief" that Watson was Butler), the government's lawyers did not rely on this disputed narrative during the case's trip to the Second Circuit Court.

So, for all intents and purposes, the only narrative that survives is Watson's, and in his, he's not dealing drugs nor displaying a weapon. Instead, he's walking down the street being just black enough to "fit the description." And, according to the government's own arguments, that's all it needs to justify a search.

Filed Under: 4th amendment, nypd, probable cause, search

Newly-Released Documents Show NSA Claiming An Email Address Is A 'Facility,' Skirting Probable Cause Requirements

from the so,-you-know,-more-of-the-same dept

If it's late Friday afternoon and the public's attention is focused elsewhere, it must mean it's time for another document release from James Clapper's office (ODNI). The heavily-redacted documents dumped by the ODNI deal with the precursors to the FISA Amendments Act (FAA): the Terrorist Surveillance Program (TSP) and 2007's interim legislation (Protect America Act or PAA) that bridged the gap between the TSP and the FAA.

The most interesting document in the release is an April 3, 2007 order [pdf link] from the FISA court which contains some rare hesitation from a FISA judge (Roger Vinson) as he deals with the NSA's desire to capture communications without providing probable cause support for its actions.

A footnote attached to the first paragraph of the order makes it clear Judge Vinson felt he was drifting into uncharted waters, with much of that being due to the NSA's shifting definitions of surveillance terms in its previous legal arguments.

This order and opinion rests on an assumption, rather than a holding, that the surveillance at issue is 'electronic surveillance' as defined at 50 U.S.C. 1801(f), and that the application is within the jurisdiction of this Court.

Vinson's order points out that the NSA attempted to change the rules of its interception program, both in terms of the evidence it provides as well as its desire to collect communications of known US persons.

Until recently, these were the only circumstances in which the government had sought, or this Court had entered, a FISA order authorizing electronic surveillance of the telephone or e-mail communications of suspected international terrorists. However, on December 13, 2006, in Docket No. [redacted], the government filed an application seeking an order that would authorize the electronic surveillance of telephone numbers and e-mail addresses thought to be used by international terrorists without a judge's making the probable cause findings described above, either before the initiation of surveillance of within the 72 hours specified in 1805(f)...

The NSA claimed in its support memos that the probable cause finding was preventing the agency from working at maximum efficiency, causing it to fall behind a constantly moving terrorist threat. In addition, its January 2007 requests included one seeking permission to collect communications from known US persons, again without meeting even the lowered bar of probable cause required by the FISA court. While the court did hand down a number of stipulations, it allowed the NSA to use its proposed "emergency FISA application" to skirt probable cause requirements and the 72-hour notice period. It also granted this for rolling 90-day periods, subject to renewal. By doing this, the FISA court turned "emergency" surveillance into the new normal.

Beyond that, the NSA also sought to expand its set of "selectors." Previously, email addresses and phone numbers known to be used by (or about to be used by) members or agents of "foreign powers" or other redacted terrorist organizations were the only ones allowed to be used as selectors when collecting communications. In these applications, the NSA wanted to start contact chaining -- tasking email addresses or phone numbers that referred to previous selectors as new selectors. Judge Vinson's order notes that there's no way the NSA can hope to meet the probable cause requirement by doing this.

The acquisition of e-mail communications because they refer to a selector e-mail address does not appear to have been authorized under FISA prior to Docket [redacted] and is discussed further below.

The "further discussion" includes Vinson highlighting this relevant part of the FISA court's probable cause requirements.

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.

Because the NSA couldn't credibly claim that these new guilty-by-association selectors are being used by the targets it was authorized to collect from, the agency deployed a number of word games. Vinson points out that one memorandum of law defines "facilities" one way (more traditionally as an operations base), while the most recent one defined the word quite differently. (In particular, the NSA maintained that an email address or phone number is a "facility" in and of itself, simply because both "facilitate the transmission of communications." Footnote on page 32.)

Underlying the government's position, therefore, is the premise that 1805(a)(3)(B) can be applied so variously that a FISA judge has great discretion in determining what "facilities" should be the subject of the judge's probable cause analysis.

Much of what follows is redacted, especially where further clarification would be extremely useful. Reading between the black blocks, it appears the NSA attempted to argue that the collection of communications was distinct from the term "electronic surveillance," except for the gathering of internet communications, which it claims is synonymous with the statutory definition. After reading through the government's multiple citations (most of which the judge deems irrelevant) in support of its seemingly contrary arguments, Vinson arrives at this conclusion.

Tellingly, none of the cited eases stand for the proposition on which this application rests that electronic surveillance is not 'directed' at particular phone numbers and e-mail addresses.

That would be the NSA's argument that a "facility" can be an email address, except for the times when the more traditional definition allows it to cast a wider net. Vinson further points out that accepting the NSA's arguments means discarding the intent of Congress and removing the court's ability to act as a check against executive branch overreach.

However, even if the statutory language were as elastic as the government contends, it would still be incumbent on me to apply the language in the manner that furthers the intent of Congress. In determining what interpretation would best further congressional intent, it is appropriate to consult legislative history. That legislative history makes clear that the purpose of pre-surveillance judicial review is to protect the fourth amendment rights of US persons. Congress intended the pre-surveillance "judicial warrant procedure," and particularly the judge's probable cause findings, to provide an "external check" on executive branch decisions to conduct surveillance.

Contrary to this intent of Congress, the probable cause inquiry proposed by the government could not possibly restrain executive branch decisions to direct surveillance at any particular individual, telephone number or e-mail address.

[...]

Thus, under the government's interpretation, the judge's probable cause findings have no bearing on the salient question: whether the communications to be acquired will relate to the targeted foreign powers. As discussed below, the government would have all of the probable cause findings bearing on that question made by executive branch officials, subject to after-the-fact reporting to the Court, through processes characterized by the government as minimization. That result cannot be squared with the statutory purpose of providing a pre-surveillance "external check" on surveillance decisions, or with the expectation of Congress that the role of the FISA judge would be the same as that of judges under existing law enforcement warrant procedures.

He concludes:

I am unable, on the basis of the facts submitted by the applicant, to find probable cause to believe that each of these facilities "is being used, or is about to be used, by a foreign power or an agent of a foreign power." The application contains no facts that would support such a finding.

In this, we see the NSA behaving much like its spiritual brethren in law enforcement and investigative agencies -- seeking to route around probable cause requirements under the pretense that bad guys will always be at least one step ahead if the government is forced to follow the rules. Rather than stay within the confines, the NSA plays word games in an effort to bypass governing statutes. The agency has demonstrated repeatedly that it has little desire to work within the framework of the law and has on multiple occasions attempted to short-circuit the system by feeding the court bad information and pursuing elliptical legal arguments. The end result is the current surveillance framework, thanks to the FISA Amendments Act's codifying of the NSA's questionable collections under the Protect America Act.

Filed Under: 4th amendment, email, james clapper, nsa, odni, probable cause, surveillance

Judge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'

from the in-the-weeds-finding-some-weed dept

There's been an update of sorts in the Peoria Mayor v. Twitter Parody fiasco, although reading the headlines attached to most of these articles tells a much different story than what's actually contained in the body. This has nothing to do with the parody account owner's (Jon Daniel) lawsuit against the city [pdf], filed with the assistance of the ACLU. (Many headlines actually lead with this, as though the filing of the lawsuit didn't actually happen over a month ago.)

Judge Thomas Keith ruled that police had probable cause to perform the raid at Daniel's residence -- which also netted his roommate, Jacob Elliott, with felony drug possession charges when marijuana and paraphernalia were discovered. And it's Elliott who's actually in court seeking to have charges dismissed and the warrant invalidated.

The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.

Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.

Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.

This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.

But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.

Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.

This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.

Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.

As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.

Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.

Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.

But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.

The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.

The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.

Keith's obeisance to "probable cause" is ridiculous but you can't expect much more from a former prosecutor who minored in cybercrime and majored in death sentences.

Filed Under: false personation, illinois, jacob elliott, jim ardis, jon daniel, parody, peoria, probable cause, raid, search, search warrant

Former NSA Boss: We Don't Data Mine Our Giant Data Collection, We Just Ask It Questions

from the um,-that's-the-same-thing dept

General Michael Hayden, the former head of both the NSA and the CIA, has already been out making silly statements about how the real "harm" in the latest leaks is it shows that the US "can't keep a secret." However, he's now given an even more ridiculous interview trying to defend both the mass dragnet collection of all phone records and the PRISM collection of internet data. In both cases, some of his claims are quite incredible. Let's start with this whopper, in which he claims that they don't do any data mining on the mass dragnet data they collect, they just "ask it questions."

HAYDEN: It is a successor to the activities we began after 9/11 on President Bush's authority, later became known as the Terrorist Surveillance Program.

So, NSA gets these record and puts them away, puts them in files. They are not touched. So, fears or accusations that the NSA then data mines or trolls through these records, they're just simply not true.

MARTIN: Why would you be collecting this information if you didn't want to use it?

HAYDEN: Well, that's - no, we're going to use it. But we're not going to use it in the way that some people fear. You put these records, you store them, you have them. It's kind of like, I've got the haystack now. And now let's try to find the needle. And you find the needle by asking that data a question. I'm sorry to put it that way, but that's fundamentally what happens. All right. You don't troll through the data looking for patterns or anything like that. The data is set aside. And now I go into that data with a question that - a question that is based on articulable(ph), arguable, predicate to a terrorist nexus. Sorry, long sentence.

I'm not sure if Hayden is just playing dumb or what, but asking it questions is data mining. What he describes as asking it questions is exactly what people are afraid of. It's exactly the kind of data mining that people worry about. On top of that, just the fact that he flat out admits that they're putting together the haystack to "try to find the needle" is exactly the kind of issue that people are so concerned about. The whole point of the 4th Amendment is that you're not allowed to collect the haystack. You're only supposed to be able to, on narrow circumstances, go looking for the needle with proper oversight. Yet, here, he admits that there's no such oversight once they have that haystack:

MARTIN: May I back up? Do you have to have approval...

HAYDEN: No.

MARTIN: ...from the FISA court...

HAYDEN: No.

MARTIN: ...which is the intelligence surveillance court established in order to go in and ask that question.

You have had a generalized approval, and so you've got to justify the overall approach to the judge. But you do not have to go to the judge, saying, hey, I got this number now. I'll go ahead and get a FISA request written up for you. No, you don't have to do that.

That should be a "wow" moment right there, because it also appears to contradict President Obama's claim that "if anybody in government wanted to go further than just that top-line data ... they'd have to go back to a federal judge and — and — and indicate why, in fact, they were doing further — further probing." Furthermore, he's basically admitting that they basically give the FISA Court some vague reason why they need every possible record on phone calls, and then there's no oversight by the court on how those are used, other than vague promises from the NSA that they're not being abused for data mining -- but just for "asking questions," which is data mining.

Moving on to PRISM. Hayden's responses are equally astounding. He's asked about the fact that the NSA has admitted that they try to make a determination of if the person is foreign and have a system to determine if they're 51% sure that a person is foreign in deciding whether or not to keep their data. As the interviewer notes, 51% "seems mushy." Hayden's response is ridiculous:

Yeah, well, actually, in some ways, you know, that's actually the literal definition of probable, in probable cause.

Um, whether or not that's the standard for probable cause is meaningless. Probable cause is the standard used to determine if someone can be arrested (or to have a search done). It is not the standard for determining if the person is foreign or not, subjecting them to mass surveillance by the NSA. The 4th Amendment requires probable cause for a search, but not probable cause in foreignness, rather probable cause in criminal activity. Is Hayden honestly suggesting that being foreign is probable cause of criminality? Because that's insane.

Filed Under: data mining, michael hayden, nsa, nsa surveillance, probable cause, surveillance

Police Chief Deploys Officers With Assault Rifles To Stop & ID Everyone; Says Local Crime Stats Give Him Probable Cause

from the your-police-chief-needs-to-talk-less-and-listen-more dept

It's been frequently posited that the US is slowly becoming a police state, what with the near-constant surveillance of citizens, the "Constitution-free" zone surrounding our borders, the endless hassles of attempting to board a plane, NYC's controversial "stop-and-frisk" program, and the many security agencies that either were created or greatly expanded post-9/11.

Apparently, "slowly becoming" a police state isn't fast enough for the police department of Paragould, Arkansas. In response to an increase in crime, the Paragould PD will be deploying armed officers into high crime areas, clad in SWAT gear, to check IDs on any residents they happen to encounter.

[Police Chief] Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

"[Police are] going to be in SWAT gear and have AR-15s around their neck," Stovall said. "If you're out walking, we're going to stop you, ask why you're out walking, check for your ID."

Stovall said while some people may be offended by the actions of his department, they should not be.

"We're going to do it to everybody," he said. "Criminals don't like being talked to."

You know who else doesn't like to be talked to by police armed with AR-15 assault rifles and dressed in tactical gear? Damn near everybody. Since it is written exactly nowhere that US citizens are required to carry identification at all times, this sort of "papers, please" activity is going to please no one and do very little to make anyone feel any "safer." (And Stovall, your jurisdiction doesn't really cover things like determining what should or shouldn't offend constituents.)

Despite the obvious issues with this plan, the mayor is fully onboard and ready to start violating some rights!

Gaskill backed Stovall's proposed actions during Thursday's town hall.

"They may not be doing anything but walking their dog," he said. "But they're going to have to prove it."

Fantastic. Now pets will need some ID as well, not to mention be willing to sign a statement in your defense, should the need arise. Despite the dubious aspects of this plan (of which there are several), Chief Stovall has convinced himself that not only is this necessary, but fully justified.

Normally, police would not stop individuals for simply walking on the street, but Stovall said the level of crime in certain areas and concerns from residents gave his officers the right to institute the actions announced at the town hall event.

"This fear is what's given us the reason to do this. Once I have stats and people saying they're scared, we can do this," he said. "It allows us to do what we're fixing to do."

Stovall further elaborated on the stop-and-ID policy Friday morning, claiming the city's crime statistics alone met the threshold of reasonable suspicion required to lawfully accost a citizen.

"To ask you for your ID, I have to have a reason," he said. "Well, I've got statistical reasons that say I've got a lot of crime right now, which gives me probable cause to ask what you're doing out. Then when I add that people are scared...then that gives us even more [reason] to ask why are you here and what are you doing in this area."

I'm sorry, but crime statistics in aggregate do not automatically convert citizens into "suspects." I'm completely baffled that someone would actually say, out loud, that crime statistics equal "reasonable suspicion." That's some messed up police work right there. And it gets worse. Here's some more statements from Stovall, which range from "flabbergasting" to "you DO realize you're still on the record?"

Individuals who do not produce identification when asked could be charged with obstructing a governmental operation, according to Stovall... "I'm hoping we don't run across [any] of that," Stovall said. "Will there be people who buck us? There may be. But we have a right to be doing what we're doing. We have a zero-tolerance. We are prepared to throw your hind-end in jail, OK? We're not going to take a lot of flack..."

Stovall said he did not consult an attorney before announcing his plans to combat crime. He even remained undaunted when comparing his proposed tactics with martial law, explaining that "I don't know that there's ever been a difference" between his proposals and martial law.

Note that Stovall did not consult an attorney. If he had, he might not be as breezily confident about his "Police State of Paragould, Arkansas" plan. Here's what City Attorney Allen Warmath had to say, which attempts to walk back a some of Stovall's claims.

Warmath said while he had not directly spoken to Stovall, he understood that the street crimes unit would actually be less confrontational than Stovall let on...

As for having IDs, he said citizens wouldn't have to worry about that, either. He said the police would not arrest residents solely for failing to produce identification when asked.

Stovall himself has taken to the Paragould PD website to walk back a few of his claims as well, perhaps prompted by the heat he's received for his earlier statements.

Most often, this identification process will be nothing more than making contact with a subject, handing them a business card, and asking if they live in the area and if there's anything we can do for them. During hours in which crime seems to be more prevalent (i.e. between the hours of 11pm and 5 am), our process will become more stringent. We will be asking for picture identification. We will be ascertaining where the subject lives and what they are doing in the area.

Well, that is very different from the "zero tolerance" toss-your-non-ID-having ass in jail portrait he painted before the criticism began rolling in. Suddenly, it looks like an actual police operation that might fall within the limitations imposed on it by the Constitution. Stovall also clarifies the SWAT team look he was playing up earlier.

To give a little background information, several of our patrol officers already carry AR-15 rifles in their patrol vehicles. The AR-15 and police work is nothing new. Our Street Crimes Unit will not be wearing them constantly. That would be impractical. As we have stated in our meetings, our main purpose of mentioning this was to prepare our residents in the event that they saw an officer armed with one. When our officers deploy into areas where there is the potential for contacting several subjects in a high-crime area, that is when the potential deployment of AR-15's will occur.

Stovall states the new patrols are not out to "violate anyone's rights" but it's hard to square this intention with the thought process that turns aggregate crime statistics into a "reasonable suspicion" blank check. Finally, he bemoans the lack of attendance at town hall meetings held by the police department regarding its new anti-crime street patrol (fewer than 100 people attended the first two meetings)... and then cancels the remaining town hall meetings because they might be "unproductive" (and full of angry citizens).

In the interest of public safety, we have elected to cancel the remaining Town Hall Meetings.

We have corresponded with numerous residents and non-residents today alone who were both supportive and against our Street Crimes Unit and Town Hall Meetings. Some of the correspondance has caused us great pause in whether or not the meetings should remain as scheduled.

As the police department, it is our duty to protect ALL residents and non-residents from harm. We feel that with the strong feelings on both sides of the Street Crimes Unit issue, a safe and productive meeting would not be the probable outcome.

Wow. I can't imagine why people might be angry... or why Chief Stovall might want to dodge the backlash. This is the fundamental disconnect infects so many of those who create and enforce laws. Chief Stovall feels these tactics are completely justified and doesn't even flinch when they're compared to martial law. This is the person calling the shots, someone who institutes something that skirts the very edge of Constitutionality without even consulting an attorney. The message being sent is that the police will play by their own rules, with the citizens expected to be helpful, grateful, cooperative and, at all times, in possession of an ID, a clean criminal record and full justification for any suspicious "walking around" they might be doing.

And when the backlash hits, Stovall first tries walking his statements back before turning around completely and running away from the issue. So much for listening to "suggestions" and "feedback." Say hello to armed patrols and "papers, please."

Filed Under: arkansas, id, paragould, privacy, probable cause

Think Tank Says DHS Should Stop Laptop Border Searches

from the but-dhs-will-ignore dept

We've definitely been concerned about Homeland Security and the US government's belief that it's okay to search laptops at the border without probable cause. We've discussed over and over again why the argument that it's the same as searching luggage simply doesn't make any sense. There are some key and important differences:

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include.
• The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

It appears others are starting to recognize these issues as well. A think tank called The Constitution Project has put out a report saying that Homeland Security should stop these laptop searches. The full report (pdf) is an interesting read, and makes the case that these searches, unlike searches of luggage, go beyond what is Constitutionally sound:

Historically, the scope of what was covered by the border search exception was fairly limited, since the exception is confined to the items a traveler carries across the border. As a practical matter, most private documents, letters, photographs, and other personal effects would remain in an individual�s home, safeguarded by full Fourth Amendment protections and the warrant requirement. With today�s technology, however, people can and do travel with vast quantities of private, personal information stored on their laptops and other electronic devices. Unlike at any time in the past, individuals who travel internationally, by virtue of legitimately choosing to carry electronic devices, are unknowingly subjecting volumes of personal information to involuntary and suspicionless search and review by federal law enforcement authorities. This problem is compounded by the fact that many electronic devices are used to carry both personal and business-related information. The continual evolution in how people use electronic devices in their everyday lives creates growing tension between the Fourth Amendment guarantees and what historically has been viewed as a narrow exception to the requirements for probable cause and a warrant.

Unfortunately, we've seen such arguments made in court, and very few courts seem sympathetic to this argument. I find the argument compelling, but courts don't seem bothered by the massive stretching of the once-narrow exception thanks to the massive change in technology. In part, I believe, it's because they haven't really taken into account just what a massive conceptual change it is to have all of your personal records stored on your computer. If you don't think of what the technology allows, but just think of it as "a thing" then you can see why a court would be confused. But, that's why we get so concerned about technologically illiterate courts deciding things that pertain to technology.

Of course, it's unlikely that this report will make much of a difference. Homeland Security has made it clear that they are going to search laptops and they're not really much interested in the intention behind the Constitution.

Filed Under: 4th amendment, border, dhs, ice, laptops, privacy, probable cause

Feds: 4th Amendment Shouldn't Apply To Online Emails Because... That Would Make Us Have To Work Harder

from the um...-that's-the-point,-isn't-it? dept

Ah, our ever-dwindling Fourth Amendment. The latest is that the Obama Administration has come out against a particular reform of ECPA (the Electronic Communications Privacy Act), the 25-year-old statute that governs online privacy issues, which almost anyone with any sort of technical knowledge admits is woefully outdated. For example, a key point is that any content stored on a server for more than 180 days is considered "abandoned," and thus the government does not need a warrant to access it. But, of course, these days, when many people leave all of their content on a remote server, that doesn't make much sense. So the effort underway is to reform and fix those problems.

But the Obama administration doesn't like that because it likes being able to access such content with ease and without the oversight of having to show probable cause in a warrant.

Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means -- a probable cause warrant -- for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

In other words, "the 4th Amendment makes life hard for us, so please let us ignore it." You see, the point of the 4th Amendment is that it's supposed to make the government's life hard. It's supposed to be hard work for law enforcement to prove that it needs to violate someone's privacy. It's supposed to be difficult, because the point of the 4th Amendment is to protect citizens from the government, not to make the government's job easy.

Filed Under: 4th amendment, ecpa, probable cause