Supreme Court To Consider Fourth Amendment Implications Of Cell Site Location Info

from the finally...-but-will-it-be-a-decision-we-really-want? dept

We've been waiting a long time for the Supreme Court to tackle the Fourth Amendment implications of cell site location info. After putting it off for as long as possible (or so it seems...), the nation's top court is finally ready to handle yesterday's hotly-disputed tech/privacy issue.

The Supreme Court agreed Monday to hear a case next term challenging the use of cellphone records without a warrant.

The case, Carpenter v. United States, centers on Timothy Carpenter, who was convicted of committing a string of armed robberies of Radio Shack and T-Mobile stores in Michigan and Ohio between December 2010 and March 2011.

The government’s evidence at trial included business records from the defendants’ wireless carriers, showing his cellphone was used within a half-mile to two miles of several robberies during the times they occurred.

The nation's top court seemed to have a pretty good handle on the issues raised by today's smartphones in its Riley decision, so there's some hope the Court will engage in a thorough examination of the Third Party Doctrine in light of today's technological realities.

The Supreme Court turned down a chance to reconcile a circuit split back in 2015. Its decision to take it up now might make this a bit easier, seeing as that split no longer exists. The holdout -- the Fourth Circuit Appeals Court -- reversed its original finding to align it with the other circuits in stating there is no expectation of privacy in third party records.

The case the Supreme Court will examine comes from the Sixth Circuit Court and deals with historical cell site location records. Almost coincidentally, the Sixth Circuit Appeals Court released another cell site opinion the same day the Supreme Court announced its review, only this time dealing with real-time gathering of cellphone GPS data. In both cases, the Appeals Court found no Fourth Amendment implications, even though it had to push through its own contradictory assertions to arrive at this conclusion.

Unfortunately, a previous Supreme Court decision on GPS tracking further complicates the issue. The Court's decision on this issue -- which is very much related to warrantless access to cell site location info -- was about three-quarters punt. It suggested long-term warrantless GPS tracking could violate the Fourth Amendment, but did not go so far as to institute a warrant requirement. It's likely it could arrive at a similar non-decision here -- one that would allow the continued exploitation of the Third Party Doctrine by law enforcement, even though the wealth of data handed over to third parties by today's smartphones bears almost no resemblance to the dialing records discussed in 1979's Smith v. Maryland.

Filed Under: 4th amendment, carpenter v. us, cell site location info, csli, location info, scotus, supreme court, third party doctrine, timothy carpenter

Strike Three: Lexmark Can't Use Patents, Trademarks Or Copyright To Block Third Party Ink Cartridges

from the good-to-see dept

Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.

The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.

But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."

The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

We conclude that Lexmark exhausted its patent rights in these cartridges the moment it sold them. The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.

The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” ... For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude.... The limit functions automatically: When a patentee chooses to sell an item, that product “is no longer within the limits of the monopoly” and instead becomes the “private, individual property” of the purchaser, with the rights and benefits that come along with ownership.... A patentee is free to set the price and negotiate contracts with purchasers, but may not, “by virtue of his patent, control the use or disposition” of the product after ownership passes to the purchaser.... The sale “terminates all patent rights to that item.” ...

This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act “promote[s] the progress of science and the useful arts by granting to [inventors] a limited monopoly” that allows them to “secure the financial rewards” for their inventions.... But once a patentee sells an item, it has “enjoyed all the rights secured” by that limited monopoly.... Because “the purpose of the patent law is fulfilled . . . when the patentee has received his reward for the use of his invention,” that law furnishes “no basis for restraining the use and enjoyment of the thing sold.”

Simple, right? And, once again, the (unanimous) SCOTUS ruling is not kind to the lower judges at CAFC:

This venerable principle is not, as the Federal Circuit dismissively viewed it, merely “one common-law jurisdiction’s general judicial policy at one time toward anti-alienation restrictions.” ... Congress enacted and has repeatedly revised the Patent Act against the backdrop of the hostility toward restraints on alienation. That enmity is reflected in the exhaustion doctrine.The patent laws do not include the right to “restrain[ ] . . .further alienation” after an initial sale; such conditions have been “hateful to the law from Lord Coke’s day to ours” and are “obnoxious to the public interest.”... “The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration.”

And then, to help the CAFC out, after quoting another case saying that this result is "too obvious to require illustration"... immediately provides an illustration. In other words, "hey CAFC, how can you be this stupid? You even need us to draw you a picture."

But an illustration never hurts. Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.

As an aside, this "illustration" being used to mock CAFC is likely to come in handy elsewhere. We've been writing a bunch lately about companies trying to kill off "right to repair" laws, and here's the Supreme Court, in a unanimous decision written by the Chief Justice, using the right to repair as a fundamental and obvious point. "That smooth flow of commerce would sputter..." Indeed.

The opinion continues to smack down CAFC later, noting that it "got off on the wrong foot."

The Federal Circuit reached a different result largely because it got off on the wrong foot. The “exhaustion doctrine,” the court believed, “must be understood as an interpretation of ” the infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee.... Exhaustion reflects a default rule that a patentee’s decision to sell an item “presumptively grant[s] ‘authority’ to the purchaser to use it and resell it.” ... But, the Federal Circuit explained, the patentee does not have to hand over the full “bundle of rights” every time.... If the patentee expressly withholds a stick from the bundle—perhaps by restricting the purchaser’s resale rights—the buyer never acquires that withheld authority, and the patentee may continue to enforce its right to exclude that practice under the patent laws.

The misstep in this logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is instead a limit on “the scope of the patentee’s rights.”... The right to use, sell, or import an item exists independently of the Patent Act. What a patent adds—and grants exclusively to the patentee—is a limited right to prevent others from engaging in those practices.... Exhaustion extinguishes that exclusionary power.... As a result, the sale transfers the right to use, sell, or import because those are the rights that come along with ownership, and the buyer is free and clear of an infringement lawsuit because there is no exclusionary right left to enforce.

There was a separate, but related question in the case as well, concerning "international" exhaustion. The above parts were about what happened to cartridges Lexmark sold within the US. But Lexmark had argued separately that products sold outside the US shouldn't be subject to patent exhaustion, so if those cartridges were then sold back into the US, they should be subject to infringement cases, since the exhaustion had not occurred under US patent law (the same issue that came up under copyright in the Kirtsaeng case). And, here, SCOTUS (at 7 to 1, with Justice Ginsburg dissenting) found that the same applies to patent law, pointing to the ruling in Kirtsaeng, ans saying that the analysis is effectively the same here:

Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation... and nothing in the text or history of the Patent Act shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentee’s monopoly.... And differentiating the patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” ... and many everyday products—“automobiles, microwaves, calculators, mobile phones, tablets, and personal computers”—are subject to both patent and copyright protections.... There is a “historic kinship between patent law and copyright law,” ... and the bond between the two leaves no room for a rift on the question of international exhaustion.

The opinion also makes fun of the White House for weighing in on this case with little relevant to add, and with a confusion about the fact that patent law is based on the public interest, rather than as what's in the best interest for the two parties in the transaction:

The Government has little more than “long ago” on its side. In the 1890s, two circuit courts—in cases involving the same company—did hold that patentees may use express restrictions to reserve their patent rights in connection with foreign sales.... But no “coalesc[ing]” ever took place: Over the following hundred-plus years, only a smattering of lower court decisions mentioned this express-reservation rule for foreign sales.... And in 2001, the Federal Circuit adopted its blanket rule that foreign sales do not trigger exhaustion, even if the patentee fails to expressly reserve its rights.... These sparse and inconsistent decisions provide no basis for any expectation, let alone a settled one, that patentees can reserve patent rights when they sell abroad.

The theory behind the Government’s express-reservation rule also wrongly focuses on the likely expectations of the patentee and purchaser during a sale. Exhaustion does not arise because of the parties’ expectations about how sales transfer patent rights. More is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. Instead, exhaustion occurs because, in a sale, the patentee elects to give up title to an item in exchange for payment. Allowing patent rights to stick remora-like to that item as it flows through the market would violate the principle against restraints on alienation. Exhaustion does not depend on whether the patentee receives a premium for selling in the United States, or the type of rights that buyers expect to receive. As a result, restrictions and location are irrelevant; what matters is the patentee’s decision to make a sale.

As for Ginsburg's dissent over international exhaustion, she also dissented from Kirtsaeng, and more or less repeats that argument here.

In the end, this is a big win for consumer rights, and blocks companies from trying to abuse patent law from restricting how people can actually use products they bought.

Filed Under: cafc, ink cartridges, patent exhaustion, patents, scotus, supreme court
Companies: impression products, lexmark

Sorry East Texas: Supreme Court Slams The Door On Patent Jurisdiction Shopping

from the no-more-bulls dept

Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the "expert" on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you've probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it's become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are "patent friendly" jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said "sure, that's great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.

Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court -- which has spent the past decade reteaching patent law to CAFC every chance it gets -- has done so again. Once again, the decision was unanimous, with the court voting 8 - 0 that trolls can't just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorporated was the proper jurisdiction.

While most of the ruling is deep in the weeds about definitions in the law, and whether or not Congress intended to change certain definitions, here's a simplified version of what happened: some have interpreted patent law to mean that a patent holder can sue an alleged infringer anywhere that a product is sold/available. In the age of the internet, this generally means "anywhere." Thus, as long as your product was available in Texas or Delaware, trolls could sue in those locations -- even if the company was nowhere near those locations. Here, however, the Court has said that the lawsuits are supposed to be filed where the company "resides," which it says is the state where the company is incorporated. This is a huge win for companies who are targeted by patent trolls. Rather than being dragged across the country to courts like East Texas or Delaware, which have built up large practices and reputations for supporting patent trolls over actual innovators, now cases will need to be filed where the alleged infringer is actually incorporated.

Expect to see the usual whining from patent trolls and their supporters about this -- but just remember: if they have a serious case of infringement, they should be fine filing it wherever the defendants actually are. Their concern is not about how this is somehow bad for patent owners. It's really about how certain courts were biased in their favor and they can no longer take advantage of that. Of course, this might mean that the ice rink in Marshall, Texas needs to find a new sponsor.

Filed Under: cafc, delaware, east texas, jurisdiction shopping, patents, scotus, supreme court, venue
Companies: tc heartland

Kim Dotcom Asks US Supreme Court Not To Allow US Government To Steal All His Stuff Without Due Process

from the due-process-matters dept

Over the past few years we've covered what may seem like a side issue in the many legal issues facing Kim Dotcom, but it's an important one: is the US able to legally take all of his money and stuff, despite (1) him not being found guilty of anything and (2) that stuff not being anywhere near the US? As we've said, even if you think Dotcom is guilty of horrible crimes and should rot in jail, how the US is going about taking his assets should concern you massively. The fact that courts have blessed the DOJ's actions doesn't make it any less concerning.

On Friday, Dotcom (along with some powerhouse legal help) asked the Supreme Court to review this issue. The real issue here is one that we've covered a lot in other contexts: civil asset forfeiture, in which the US seizes and sues stuff rather than people. That's why this lawsuit is not actually against Kim Dotcom (there are other such lawsuits), but rather the United States v. All Assets Listed in Attachment A (no, really, that's the case). Of course, "Attachment A" is all of Dotcom's assets, mostly in Hong Kong. But the situation with Dotcom takes the normal questions about asset forfeiture and adds layer upon layer of complexity.

There are three specific issues that Dotcom is asking the Supreme Court to review, and all are important here. The first is whether or not a US court can allow for asset forfeiture for assets that are outside the US and outside of US government control. As the dissent pointed out in the appeals court ruling in this case, a federal court issuing a ruling is supposed to be a binding ruling, not an advisory ruling. And if the assets are held outside the US and not under the jurisdiction of the US courts, the ruling can't be binding.

The second two issues are connected: and it's basically the question of whether the courts were right in saying that the federal government could take Dotcom's stuff and that Dotcom could not protest, because he was "a fugitive." Of course, he's not a "fugitive." He's just fighting extradition to a place he's never been. He isn't running away and is going through the full legal process he's entitled to in New Zealand. That's not someone hiding from the US, it's someone who is following the basic rules of due process, which the US wishes to deny him. The specific questions are at what stage of the process he can be declared a fugitive and the other is whether or not intent needs to be shown.

As we have noted repeatedly, the Supreme Court rejects most requests to hear cases, but the lawyers here (Dotcom's long-term lawyer Ira Rothken along with legal giant Quinn Emanuel) have done a good job demonstrating real circuit splits in appeals courts on each of the three questions, which is often important in convincing the Supreme Court to actually take a case. As the filing notes:

This Court has previously admonished that the “harsh sanction” of fugitive disentitlement in a civil forfeiture action is “most severe and so could disserve the dignitary purposes for which it is invoked,” because it “foreclos[es] consideration of claims on the merits.” ... The Court noted that it “ha[d] held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States,” but left open the question of “whether enforcement of a disentitlement rule under proper authority would violate due process.” ... Nonetheless, a divided panel of the Fourth Circuit affirmed civil forfeiture based on fugitive disentitlement.

I imagine that the federal government will insist there's no reason for the Supreme Court to weigh in here, but hopefully the court decides to review the case. Again, even if you dislike Dotcom or think he's guilty of a "megaconspiracy" to infringe on copyrights, the due process questions around civil asset forfeiture should concern you -- and hopefully they concern the Supreme Court.

Filed Under: doj, kim dotcom, scotus
Companies: megaupload

Supreme Court Won't Hear Case About Copyright Protection Of Pre-1972 Sound Recordings

from the and-other-news-about-pre-1972 dept

For many years now, we've been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection -- some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn't apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it's easier just to say "pre-1972 sound recordings.") And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has... made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit).

And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren't covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law.

Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA's safe harbors don't apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA's safe harbors protected that site, it argued that pre-1972 sound recordings didn't qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit's ruling had to be in error because it was "contrary to the considered view of the United States Copyright Office."

The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA's safe harbors. While the 2nd Circuit's ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits -- and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn't see that reading as particularly egregious.

Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no "performance" right under NY's state copyright, and thus they can't magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California's state copyright law provided some proto-performance right to pre-1972 works.

And, just a few days after that, the state of Georgia's Supreme Court ruled that pre-1972 sound recordings can be played by streaming sites, and some copyright holders can't bring "RICO" claims (IT'S NEVER RICO!!!!!!) just because iHeartRadio plays those songs.

As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn't blocked proposals along those lines, none of this mess would have happened. That's why I find it somewhat surprisng, that one of the RIAA's favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more.

Filed Under: california, copyright, dmca, georgia, ny, pre-1972 sound recordings, safe harbors, scotus
Companies: riaa, vimeo

Supreme Court Says Patent Trolls Can Wait A While Before Suing

from the laches-upon-laches dept

In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.

The 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of "laches" applies in patent cases. Laches is a principle that penalizes a rightsholder who "sleeps on their rights" by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product.

The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected "patent exceptionalism" and has often reversed the Federal Circuit for creating special rules for patent law. So this week's decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law.

Together with Public Knowledge, EFF filed an amicus brief at the Supreme Court explaining the many ways that companies accused of patent infringement can be harmed if the patent owner sleeps on its rights. For example, evidence relevant to invalidity can disappear. This is especially true for software and Internet-related patents. In his dissent, Justice Breyer cited our brief and explained:

[T]he passage of time may well harm patent defendants who wish to show a patent invalid by raising defenses of anticipation, obviousness, or insufficiency. These kinds of defenses can depend upon contemporaneous evidence that may be lost over time, and they arise far more frequently in patent cases than any of their counterparts do in copyright cases.

The seven justices in the majority suggested that patent defendants might be able to assert "equitable estoppel" instead of laches. But that would likely require showing that the patent owner somehow encouraged the defendant to infringe. In most cases, especially patent troll cases, the defendant has never even heard of the patent or the patent owner before receiving a demand. This means estoppel is unlikely to be much help. Ultimately, today's ruling is a victory for trolls who would wait in the shadows for years before using an obscure patent to tax those who do the hard work of bringing products and services to market.

Republished from the EFF's Deeplinks Blog

Filed Under: copyright, laches, patent troll, patents, scotus, supreme court
Companies: first quality baby products, sca hygien

After Appeals Court Flip-Flop, Aaron Graham Asks Supreme Court To Examine Warrantless Access To Cell Location Info

from the one-more-time dept

Aaron Graham -- the defendant at the center of a Fourth Amendment dispute over the warrantless acquisition of cell site location info -- is hoping to get one more court to take a look at his case.

Last summer, the 4th Circuit Court of Appeals became the first appeals court to institute a warrant requirement for historical CSLI. As was noted then, the court found that the records generated by cell phones (and held by phone companies) had an expectation of privacy -- at least when obtained for a significant period of time. In Graham's case, the government obtained 221 days of historical cell site location data -- the sort of extended period the Appeals Court found troubling… originally.

The government appealed and attempted to differentiate its long-term, post-facto tracking of Graham's movements with eight months of CSLI from the Supreme Court's Jones decision -- which (sort of) found that deploying a surreptitious GPS tracker required the use of a warrant. It claimed this form of location tracking was completely different than the other form of location tracking, mainly because in Graham's case the tracking was done by the phone company. The government simply benefitted from the warrantless collection of records the phone company was already compiling.

The court bought the government's arguments the second time around. The short-lived warrant requirement was removed and the 1979 definition of the Third Party Doctrine (Smith v. Maryland) was reinstated. The dissent correctly pointed out that no cell phone user voluntarily turns over location data to service providers. It's just something that has to happen for phones to make calls or access data. It also pointed out that, unlike other third-party records, customers aren't allowed to access their own cell site location data. Only the phone company and the government can do that, even though it's the customer generating the records and paying for their collection and storage.

Graham is now petitioning [PDF] the Supreme Court to review the case. (h/t Gitmo Watch) If it does, things could get interesting. Unfortunately, there's no telling which version of "interesting" we'll get.

As it stands now, there's no cohesive stance on CSLI in the nation's courts. If there are precedential findings, most side with the government's Third Party Doctrine theory. A few lower courts have recognized an expectation of privacy in these auto-generated records, but at the Appeals Court level, nothing else has come down in favor of this finding. There are some open pending appeals, but no rulings have been handed down yet.

The cert petition notes that courts should not be so quick to extend a benefit of a doubt to law enforcement agencies who do everything they can to avoid filling out a search warrant application.

Leon explains that police officers who obtain a warrant that appears to satisfy the probable cause requirement can “literally” do “nothing more . . . in seeking to comply with the law.” Id. at 921 (internal quotation omitted). Suppressing evidence after a police officer conducts a search with a warrant in hand will not serve the exclusionary rule’s deterrent effect because suppression would not “alter the behavior of individual law enforcement officers or the policies of their departments.” Id. at 918.

The Fourth Circuit’s contrary conclusion misapplies Leon to the point of creating a direct conflict with this Court’s precedent. Here, in contrast, law enforcement easily could, but chose not to, follow the constitutionally secure path. They could have followed 18 U.S.C. § 2703(c)’s explicit warrant requirement, which clearly satisfies the Fourth Amendment, instead of taking their chances with the non-warrant procedure of § 2703(d). Unlike Leon, the prosecutor who sought and used the § 2703(d) order knew that the order was neither a warrant nor the equivalent of a warrant, and knew that the constitutionality of his choice was already in doubt.

Graham argues the evidence obtained should be suppressed, rather than put back into service on the back of the good faith exception and a multitude of conflicting court decisions. A deterrent only works if you actually apply it.

Indeed, suppressing the evidence here would alter the behavior of both individual officers and policies of departments and thus would serve the deterrent purposes of the exclusionary rule. Prosecutors and police departments would be put on notice that they should not always be looking for loopholes to the warrant requirement. They would know that in the future, documents that do not satisfy the Fourth Amendment’s warrant requirement more likely than not will not justify the search of a citizen’s person, papers, and effects.

Whether or not the Supreme Court will take also remains to be seen. The court has been rather schizophrenic on its Fourth Amendment decisions in recent years and it may not be in any hurry to handle something with this many future implications while it's still short a justice.

Filed Under: 4th amendment, aaron graham, csli, location info, scotus, supreme court

Supreme Court Knocks A Little More Off The 4th Amendment; Gives Cops Another Way To Salvage Illegal Searches

from the endlessly-forgiving dept

The Supreme Court hasn't necessarily been kind to the Fourth Amendment in recent years. While it did deliver the Riley decision, which instituted a warrant requirement for searches of cellphones, it has generally continued to expand the ability of police to stop and search anyone for almost any reason.

Its Heien decision said it was perfectly fine for police officers to remain ignorant of the laws they're enforcing by allowing them to continue making bogus traffic stops predicated on nonexistent laws. The Rodriguez decision at least prohibits officers from artificially extending stops to bring out drug dogs or beg for consent to search a vehicle, but it doesn't do anything to prevent the bogus stops in the first place.

With its just-released Strieff decision, the Supreme Court -- in a 5-3 ruling -- extends the reach of bogus stops/searches to pedestrians. To get to where we are now, you have to go back a decade:

The case, Utah v. Strieff, started in 2006, when the Salt Lake City police got an anonymous tip reporting drug activity at a house. An officer monitored the house for several days and became suspicious at the number of people he saw entering and leaving. When one of those people, Edward Strieff, left to walk to a nearby convenience store, the officer stopped him and asked for his identification.

A routine check revealed that Mr. Strieff had an outstanding “small traffic warrant.” The officer arrested him based on that earlier warrant, searched him and found a bag of methamphetamine and drug paraphernalia in his pockets.

The evidence obtained should have been suppressed because the officer had no reason to stop Strieff and demand his ID. The state of Utah has already conceded this was an illegal stop. But it has appealed it all the way to the nation's top court because it wants the fruits of the illegal search to remain unsuppressed and, more importantly, the government wants the precedent. It got it. From the opinion [PDF]:

To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.

Working backwards from the arrest and search incident to the arrest, the court finds that the warrant the officer knew nothing about before stopping Strieff is all the connective tissue lower courts will need to refuse suppression of evidence obtained from similar illegal stops. The majority says this reverse engineering is perfectly fine because it probably won't be abused -- and even if it is, those whose rights are violated can always lawyer up and file a civil suit.

Strieff’s counterarguments are unpersuasive. First, neither Officer Fackrell’s purpose nor the flagrancy of the violation rises to a level of misconduct warranting suppression. Officer Fackrell’s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs. Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police. Such misconduct would expose police to civil liability and, in any event, is already accounted for by Brown’s “purpose and flagrancy” factor.

The majority acts as though this sort of thing is an isolated incident -- a unicorn in the pantheon of law enforcement. Justice Sotomayor's angry dissent tears this argument apart, pointing out how the majority has just given law enforcement a permission slip for illegal searches while claiming this is a narrow reading of a one-off incident.

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.

The majority's decision pretends outstanding warrants won't encourage police fishing expeditions. But to mix a couple of metaphors, law enforcement agencies have access to massive honeypots.

These factors confirm that the officer in this case discovered Strieff ’s drugs by exploiting his own illegal conduct. The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check. The officer’s discovery of a warrant was not some intervening surprise that he could not have anticipated. Utah lists over 180,000 misdemeanor warrants in its database, and at the time of the arrest, Salt Lake County had a “backlog of outstanding warrants” so large that it faced the “potential for civil liability.”

This opinion gives officers the option to demand ID from every pedestrian they encounter in order to run a warrant check. There no longer needs to be a reason for the stop. Officers can work backwards by performing the stop, running an ID and, finally, arresting a person and performing a search if the database returns a hit. If you want a police state, you've got one, as Sotomayor points out.

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.

The logic of the majority's decision -- now the law of the land -- says even a warrant for an unpaid parking ticket is a free pass for officers to perform a search of your person. It sounds innocuous but it isn't. You'll be stopped and not allowed to leave. You may be pushed up against a wall or bent over the hood of a police car. Your personal belongings will be taken, laid out, and cataloged. You may also have your genitalia and bodily orifices probed and inspected. And, most likely, all of this will happen in public in full view of passersby. A search is an invasion, but the Supreme Court's decision treats as a minor inconvenience -- and one whose illegality can be excused after the fact.

Filed Under: 4th amendment, illegal searches, police, scotus, strieff, supreme court

Supreme Court Approves Rule 41 Changes, Putting FBI Closer To Searching Any Computer Anywhere With A Single Warrant

from the impeccable-timing dept

The DOJ is one step closer to being allowed to remotely access computers anywhere in the world using a normal search warrant issued by a magistrate judge. The proposed amendments to Rule 41 remove jurisdiction limitations, which would allow the FBI to obtain a search warrant in, say, Virginia, and use it to "search" computers across the nation using Network Investigative Techniques (NITs).

This won't save evidence obtained in some high-profile cases linked to the FBI's two-week gig as child porn site administrators. Two judges have ruled that the warrants obtained in this investigation are void due to Rule 41(b) jurisdiction limitations. (Another has reached the same conclusion in an unrelated case in Kansas). The amendments recently approved by the US Supreme Court would strip away the jurisdiction limitation, making FBI NIT use unchallengeable, at least on jurisdiction grounds.

Rule 41. Search and Seizure

(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:

(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:

(A) the district where the media or information is located has been concealed through technological means; or

(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

The DOJ claims the updates are needed because suspects routinely anonymize their connections, making it difficult to determine where they're actually located. Opponents of the changes point out that this significantly broadens the power of magistrate judges, who would now be able to approve search warrants targeting any computer anywhere in the world.

The real problem, though, is this: there's no significant Congressional opposition (save Ron Wyden) to the proposed amendments.

“These amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices. I plan to introduce legislation to reverse these amendments shortly, and to request details on the opaque process for the authorization and use of hacking techniques by the government,” said Wyden.

“Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime. These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting. Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process.”

Worse, the amendments will be adopted if Congress does what it frequently does best: nothing. Congress actually needs to take action to block the amendments, but seeing as it only has until December 1, 2016, to do it, it seems highly unlikely that it will make the effort to do so -- not during an election year and certainly not during the annual struggle of approving a budget.

On the bright side, Ron Wyden is generally pretty good at mobilizing opposition, even when there appears to be little support for his efforts. We can also expect a variety of civil liberties groups and activists to start pushing Congress to "opt out" of the proposed changes.

Filed Under: fbi, hacking, rule 41, scotus, supreme court

Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants

from the teamwork dept

We've talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team's name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on "offensive" terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we've talked a bit about, that of the Asian music group, The Slants.

The Slants' case is different from the Redskins', with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band's trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.

If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.

Tam is the short-form reference to The Slants' case. It's a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team's name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn't. There's no provision for who is applying for, or holding, the trademark in question.

Another reason it's a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it's the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants' case holds up, then the cancellation of the team's trademark would make no sense.

And the Redskins are right. The team's name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.

Filed Under: first amendment, free speech, offensive, redskins, scotus, slants, supreme court, trademark
Companies: washington redskins