Man To Spend 180 Days In Jail For Turning Over Non-Working Password

from the inadvertently-building-up-time-served-credit dept

The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.

It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.

That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.

The court, however, has sided with prosecutors.

A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday — the latest salvo in intensifying legal battles over law-enforcement access to smart phones.

Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work.

All that can be said for certain is prosecutors still don't have an unlocked phone. As prosecutors and this judge see it, the only explanation is that Wheeler lied. That earns him six months of jail time. Maybe Wheeler should have said he couldn't remember.

As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos.

That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot.

Victor claimed he didn't remember the number. He prevailed.

This would be the same judge who determined turning over a password had no Fifth Amendment implications. However, the court found it plausible the defendant might not be able to remember the password to a phone he'd last used over ten months ago. But the ruling doesn't necessarily say the defendant is telling the truth. It only goes so far as saying it's almost impossible to prove he's lying. Given the gap between the phone's seizure and the demand for a password, it's a plausible claim.

His co-defendant made no such claim. Like Wheeler above, Victor's girlfriend handed over a password but it didn't work. The court has asked her to explain why. Given the judge's earlier Fifth Amendment determination, it's safe to assume Hencha Voigt will be facing jail time if the explanation isn't to the judge's liking.

Filed Under: 4th amendment, 5th amendment, christopher wheeler, encryption, forced revelation, locked phones, password, wesley victor

Another Judge Says The Microsoft Decision Doesn't Matter; Orders Google To Hand Over Overseas Data

from the when-reality-is-complicated,-simply-ignore-it dept

Microsoft may not have to respond to government demands for US persons' data held overseas, but it looks like everyone else (specifically, Google) will have to keep trawling their foreign data stores for US law enforcement.

The Second Circuit Appeals Court ruled US government warrants don't apply to overseas data. Courts outside of the Second Circuit are finding this ruling doesn't apply to Google's foreign data storage. The most obvious reason for this is other circuits aren't bound by this decision. The less obvious reason has to do with how Google stores its data.

As Google describes it, communications and data are in constant motion, moving in and out of the country as needed for maximum efficiency. When a warrant arrives, Google gathers everything it finds in its domestic servers but hands back a null response to data currently held overseas. Sometimes what Google hands law enforcement is nothing more than unusable digital fragments. Obviously, the government isn't happy with this new status quo.

And it is a new status quo, as is pointed out in this ruling [PDF] by a DC magistrate judge [via FourthAmendment.com]. The ruling here aligns itself with one handed down in Pennsylvania earlier this year. In that decision -- like in this one -- the judge noted Google used to capture everything requested, no matter where it was located. It's only very recently Google has refused to chase down data (and data fragments) located in servers around the world.

The process was described this way in the Pennsylvania decision:

Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies.

As a result, the country or countries in which specific user data, or components of that data, is located may change. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time.

Nothing has changed here. And nothing has changed in terms of legal analysis, despite this memorandum order being issued in a DC court. The court finds Google does not effect a seizure of requested data because it simply makes a copy of it. It also points out (and Google concedes) that it does not act as a government agent when it does this, despite the only reason for Google's copying of the data is to respond to a government warrant. The court notes the Stored Communications Act does carry privacy implications, but only as far as the private entity's actions -- not the government's demands. The court's analysis states the SCA provisions only prohibits unlawful access (such as hacking) while regulating companies' responses to government demands.

The court goes on to say Google's view of its legal responsibilities is completely untenable. Because of the transitory nature of Google's data handling, it would never be able to fully comply with demands for records, no matter which country issued the order.

Finally, it must be said that the above Morrison analysis of the operative sections of the SCA has the added benefit of avoiding the bizarre results that application of the Microsoft decision to modern data networks like Google's would produce. If that decision's focus on the physical location of the data's storage were to be applied to service providers using such networks, the records and information the government would receive in response to an SCA warrant may differ significantly depending on the date on which the warrant is served. Indeed, the same warrant served on ten different days may well produce ten different results depending on where on the network the shards of responsive data are located at the moment each warrant is served. Such random results -- generated by a computer algorithm -- would serve the interests of neither privacy nor international comity.

Compounding the problem, even assuming the service provider could and would identify for law enforcement the location of the foreign-based servers on which the missing data was stored (as Google refused to do here), that knowledge would effectively be useless to the government here. By the time the government could initiate the international legal process necessary to obtain the missing data from wherever it was stored, it is entirely possible that the network would have relocated the data yet again to a server in a different country. Moreover, it is Google's position that it need not respond overseas to any such international legal requests because it is only at its headquarters in California that its data can be accessed and compiled into a recognizable electronic file. Thus, in Google's view, the only means available to obtain records and information related to a Google account is by serving an SCA warrant on its LIS team in California.

The magistrate says that's not going to work -- not under the stipulations of the SCA. In fact, it's just not going to work at all because of Google's data-handling. It may be primed for efficiency, but does little to help it comply with warrants.

To reach the conclusion advanced by Google here, the Court would need to find that a properly-issued SCA warrant requiring the disclosure to law enforcement in the United States from Google's headquarters in the United States of digital files accessible only from the United States constitutes an extraterritorial application of the SCA simply because pieces of data that make up those files were stored on a server located outside the United States at the moment in time the warrant was executed. Because such a conclusion runs contrary to the straightforward extraterritorial analysis of the SCA under Morrison detailed above, the Court finds that Google has not shown cause for its failure to produce all the records and information called for in the instant warrant within its possession, custody, or control.

In the end, the court orders Google to ignore the realities of its data flow. It may make things easier for law enforcement, but it has very little to do with keeping the government within its jurisdictional confines.

Google's LIS representatives in California can access, compile, and disclose to the government those records and information with the push of a button and "without ever leaving their desks in the United States." Microsoft, 829 F.3d at 229 (Lynch, J., concurring). Because that "entire process takes place domestically," id., Google will be ordered to comply with the warrant in full, and to disclose to the government all responsive electronic records and infonnation identified in Attachment B to the warrant within its possession, custody or control, wherever those records and information may be electronically stored.

In essence, Google is being ordered to act as a government agent to secure all requested data wherever it happens to reside. Since it can do it from a California office, the court reasons nothing foreign is touched -- at least not by the government. Once it's all packaged up locally, the local boys can access it without fear of a suppression challenge.

Filed Under: 4th amendment, doj, ecpa, international data, privacy, sca, subpoena, warrant
Companies: google, microsoft

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

Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue

from the unfortunate-unanimity dept

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court held—and we affirm, holding that the government’s detection of Montai Riley’s whereabouts in this case, which included tracking Riley’s real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Riley’s GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennessee—but only after inquiring of the front-desk clerk did the government ascertain Riley’s specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Riley’s whereabouts than what Riley exposed to public view as he traveled “along public thoroughfares,” id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Riley’s motion to suppress evidence found upon Riley’s arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or “pinging” of the latitude and longitude coordinates of Riley’s phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subject’s mobile device on the service provider’s network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Riley’s phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Riley’s phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still…)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a “voluntarily procured” cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because “the defendant’s movements could have been observed by any member of the public,” ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individual’s location (or a cell phone’s location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveled—but the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precision—even if the Airport Inn were only one story tall—to reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within… a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Riley’s whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby “along public thoroughfares,” Skinner, 690 F.3d at 774—even if Riley meant to keep his location a secret, one cannot expect privacy in one’s public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

Filed Under: 4th amendment, 6th circuit, csli, location info, third party doctrine

EFF Sues FBI For Refusing To Turn Over Documents About Its Geek Squad Informants

from the best-buys,-best-friends dept

A child porn indictment in California has led to a full-fledged examination of the FBI's use of "private searches." Private searches, performed by citizens, can be used to instigate investigations and obtain warrants. In this case, the private searches were performed by Best Buy Geek Squad members, who came across alleged child porn images while fixing the defendant's computer.

Private searches during computer repairs are normal. But they're not roughly analogous to searches performed with a warrant. Companies that repair electronic devices are legally required to report discovered child porn to law enforcement. What they're not supposed to do, however, is dig through devices they're repairing in hopes of finding something illegal.

Most techs don't go looking for child porn. But the FBI's close relationship with Best Buy turned private searches into searches performed by paid informants. Once government money is introduced into the equation, the search can no longer be considered "private." The introduction of cash rewards also skews the incentives, possibly encouraging Geek Squad members to spend more time looking for illicit images than focusing on the repair job at hand.

Documents uncovered in this case strongly suggest the FBI has been using Best Buy repair center techs as confidential informants, paying them for their discoveries while claiming these warrantless, secondhand searches are nothing more than completely legal "private searches."

The EFF wants to know what the FBI knows about its long-running Best Buy partnership. The FBI isn't nearly as interested in making this information public. It sent a FOIA request to the FBI in early February. The FBI's first response was a Glomar. From the EFF's FOIA lawsuit [PDF]:

By letter to Plaintiff dated April 18, 2017, the FBI denied EFF’s request for agency records. The FBI stated, inter alia, that “it is the FBI’s policy to neither confirm nor deny the existence of any records which would tend to indicate or reveal whether an individual or organization is of investigatory interest to the FBI.”

The EFF immediately appealed this determination. Since then, the FBI has yet to respond. The EFF's lawsuit seeks a better response to its FOIA request, as well as a ruling finding in favor of its requested fee waiver. The EFF's decision to move forward with a FOIA lawsuit is the unfortunate result of the government's disinterest in fulfilling its FOIA obligations. There's hardly any action a citizen can take to speed up this process. Lawsuits are only marginally better than firing off reminder emails. Unfortunately, they're also a lot more expensive.

There's a good chance these documents -- should they ever be released by the FBI -- will show this sort of thing isn't limited to Best Buy repair centers.

We think that the FBI's use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires.

This bears watching. The FBI loves parallel construction and law enforcement in general loves anything that allows it to bypass obtaining warrants. Turning repair crews into informants serves these interests well.

Filed Under: 4th amendment, fbi, foia, geek squad, informants, private searches
Companies: best buy, eff

Court Says Password Protection Doesn't Restore An Abandoned Phone's Privacy Expectations

from the 1.-throw-in-ditch-2.-go-to-Mexico-3.-move-to-suppress? dept

In a decision reached recently by a Florida federal court, a person has no expectation of privacy in a phone that was thrown away. [h/t Orin Kerr] In this case, the defendant was sought in connection with a missing child investigation. He was questioned by police and released. A few days later (when he was supposed to be meeting detectives at his house), the defendant (allegedly) went for a walk in the rain and got lost. He discovered his phone was wet and, according to his testimony, threw the phone in a ditch because he believed the wet phone was completely useless.

The defendant's phone was recovered by someone else. The police traced the phone back to the phone's (temporary) new owner. The phone was then subjected to a warrantless search. Police were hoping to find information about the missing child as phone records obtained earlier showed the defendant's phone had been in the area. (They also exposed inconsistencies in the defendant's assertions about where he had and hadn't been.)

Instead, the police found something else: child porn. The defendant moved to have the evidence suppressed, arguing that while he may have abandoned the phone, he did not abandon his privacy interest in the phone's [contents]. From the decision [PDF]:

Although the abandonment doctrine has long been in place, Defendant argues that this case does not align with current precedent. This is because, according to him, the item discarded was a passcode-locked cell phone. To be clear, Defendant concedes that he ditched the physical cell phone on May 31. But he argues that he still had a reasonable expectation of privacy in the phone’s contents because the phone was password-protected and because he would not have discarded it but for his belief that the phone was broken. (Doc. 56 at 13). In other words, he asserts that even if the phone worked when he discarded it, the contents were not accessible without his passcode, and thus he maintains standing to challenge the search of his phone’s contents.

The court calls this argument "novel," and it sort of is. As the decision states, abandoned items -- including containers -- lose their privacy interest immediately. But not every court has seen it this way when it comes to password-protected cellphones. The court notes the Supreme Court's Riley decision, which instituted a warrant requirement for cellphone searches because the vast amount of information stored in today's cellphones makes them more analogous to a person's house than the contents of a person's pockets (as the government argued).

But the argument isn't completely novel, as the Florida state appeals court arrived at the opposite conclusion late last year.

While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.

The court here cites the state court decision, but ultimately abandons it. (It has no precedential value in a federal court anyway, seeing as the state court decision didn't rely on Florida state law, but rather a Supreme Court decision.) As it notes, that decision was one of several related to abandoned cellphones, but it was the only one to arrive at this expectation of privacy conclusion.

Defendant urges this Court to adopt the logic of K.C. and the dissenting opinions in Brown and Samalia. The Court respectfully declines to do so. To start, K.C. is not binding on this Court. And for the reasons previously stated, the Court does not agree that the reasoning in Riley for why cell phones should not be subjected to a warrantless search incident to arrest applies to abandoned cell phones with or without a passcode. Recall that the Supreme Court was concerned about the capacity to store private information on a cell phone that far exceeds that of other physical objects. But abandonment is about intent, and when a person abandons a physical object, he maintains no right of privacy in the contents. This is fundamentally different from a search incident to arrest, and the decision in K.C. does nothing to persuade this Court otherwise. Also telling, the Supreme Court in Riley did not require law enforcement officers to obtain a warrant to search every phone that falls into their possession.

The court goes on to note that the phone being thrown in a ditch simply for being wet isn't a very credible assertion. First, the defendant made no effort to retrieve his phone, not even after he knew who had recovered it and that it was in working condition. Other testimony indicated several calls went unanswered before the phone was literally ditched by the defendant because it was too wet to use. And the court gives testimonial credit as to the phone's condition to the person who found the phone since he didn't know the defendant or have any details about the investigation. Then there's the defendant's apparent attempt to leave the country, which was uncovered by investigators.

In contrast to the state court ruling the federal court has no obligation to adopt, the defendant's phone wasn't merely left behind, but rather an affirmative effort made by the defendant to distance himself from his cellphone by throwing it into a ditch while "lost" in the rain (and apparently avoiding detectives coming to speak to him).

Chances are, this might have gone a little more the defendant's way if he hadn't tossed his phone out, immediately replaced it, and hightailed it towards Mexico. The court doesn't sound like it's making an across-the-board ruling on cellphone privacy, but rather responding to the circumstances of this particular case and the defendant's lack of credibility.

Filed Under: 4th amendment, abandoned phone, passwords, privacy

Appeals Court Upholds Life Sentences For Silk Road Mastermind

from the 'plus-cancer'-sentencing-enhancement-considered-reasonable dept

Ross Ulbricht -- sentenced to two life sentences for running a dark web drug marketplace -- has just had his appeal rejected by the Second Circuit Appeals Court. Ulbricht raised several challenges to the verdict and sentence, including the denials of his motion to suppress, motion for a new trial, and several alleged errors by the district court. He also challenged the reasonableness of the sentence (which certainly seems unreasonable): two life sentences plus a judgment holding him personally financially responsible for every drug transaction on the Silk Road ($184 million).

On the Fourth Amendment grounds, the appeals court panel determined IP addresses have no more expectation of privacy than dialed phone numbers -- no warrants needed. Ulbricht pointed out a lot has changed, even in terms of jurisprudence, since 1979's Smith v. Maryland decision (the basis for the Third Party Doctrine) but the appeals court isn't interested in setting new precedent [PDF link].

[W]hatever novel or more intrusive surveillance techniques might present future questions concerning the appropriate scope of the third-party disclosure doctrine, the orders in this case do not present such issues. The recording of IP address information and similar routing data, which reveal the existence of connections between communications devices without disclosing the content of the communications, are precisely analogous to the capture of telephone numbers at issue in Smith… The substitution of electronic methods of communication for telephone calls does not alone create a reasonable expectation of privacy in the identities of devices with whom one communicates. Nor does it raise novel issues distinct from those long since resolved in the context of telephone communication…

Ulbricht struck out on every other appealed issue as well. The court found the warrants issued to search Ulbricht's accounts and devices were broad, but sufficiently particular. That the FBI may have had to dig through plenty of irrelevant files just to get what it was looking for is irrelevant. The judges point out simple keyword searches would have been defeated by actions Ulbricht took to obscure the contents of files, like name a folder of Tor chat logs "mbsobzvkhwx4hmjt."

As for the supposed errors committed by the trial court, the one discussed the longest is the denial of Ulbricht's motion to obtain grand jury evidence used in the indictment of DEA agent Carl Force, who stole Bitcoin and sold the movie rights to his Dread Pirate Roberts investigation, all while still on the clock. The court agrees Force's actions were reprehensible and reflected badly on the government, but the evidence itself was of no value to Ulbricht's defense. (Obviously, this theory can't be tested post facto.) The court, however, makes the point that there's little use in attacking the credibility of a witness the government isn't interested in making available.

The government’s commitment to eliminating all evidence that came from Force’s work on the Silk Road investigation further undermines Ulbricht’s claim that he needed the information to avoid a possible injustice. Had Force been called as a government witness, or had any of the government’s evidence relied on his credibility, his character for truthfulness would have been at issue during the trial, and information that impeached his credibility would have become highly relevant. Ulbricht’s reliance on the general fact of cooperation among different government agencies and different U.S. Attorney’s Offices does not undermine the government’s explicit representations that none of the evidence presented at trial derived from Force, and nothing in the record suggests that those representations were false. Ulbricht had no need to rely on the grand jury investigation of Force to attack the credibility of the actual government witnesses or the integrity of its other evidence.

The appeals court goes on to deny every challenge, leaving Ulbricht back where he started: facing life without parole. The judges aren't entirely unsympathetic to Ulbricht's challenge of the sentence's reasonableness, but they note this is how American society as a whole has decided drug dealers should be treated.

At this point in our history, however, the democratically-elected representatives of the people have opted for a policy of prohibition, backed by severe punishment. That policy results in the routine incarceration of many traffickers for extended periods of time.

This indictment of the public is no more reasonable than the sentence handed to Ulbricht because you go to the polls with the candidates you have. And many candidates have made long careers out of long drug sentences, thanks to endless PR campaigns by our nation's law enforcement agencies, who themselves rely on draconian policies to keep themselves federally funded.

And there were aggravating factors which cannot be undone simply because actions bought and paid for apparently were never carried out.

[T]he facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal. Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite.

[...]

The attempted murders for hire separate this case from that of an ordinary drug dealer, regardless of the quantity of drugs involved in the offense, and lend further support to the district court’s finding that Ulbricht’s conduct and character were exceptionally destructive. That he was able to distance himself from the actual violence he paid for by using a computer to order the killings is not mitigating.

[...]

[I]n evaluating Ulbricht’s character and dangerousness, the most relevant points are that he wanted the murders to be committed, he paid for them, and he believed that they had been carried out. The fact that his hired assassin may have defrauded him does not reflect positively on Ulbricht’s character. Commissioning the murders significantly justified the life sentence.

In the end, it appears Ulbricht was the guy he never wanted to be: a violent drug dealer. He may have fired up the Silk Road with the best of worst intentions -- a utopian deep web drug market that could have removed some of the danger associated with buying and selling drugs. But by the end of it, he was apparently ordering hits and rationalizing away the sale of cyanide.

The sentence upheld here reflects that, but it also indicates the government is still inconsistent, even with a stack of sentencing minimums to work with. The government got its man, but it also showed it's willing to pin life sentences on third party marketplace facilitators, which is a bit like locking up Backpage execs because sex traffickers use their site to… oh wait.

Filed Under: 4th amendment, appeal, ross ulbricht, silk road
Companies: silk road

Appeals Court: An IP Address And Some Alternative Facts Are A 'Reasonable' Basis For A Search

from the speculative-policing dept

The Eighth Circuit Appeals Court has handed down a judicial shrug [PDF] in a case where police decided an IP address was pretty much all they needed to search eleven occupants and their devices for child porn. Qualified immunity is upheld, despite the fact the officers searched rooms they possibly had no Fourth Amendment permission to search and despite the fact that no child porn was discovered anywhere on the multiple devices they seized.

The detectives had a warrant to search a single-family dwelling. This residence had been split into unofficial apartments. Despite there being some clear delineation between the multiple private spaces, the police decided the original warrant covered every separate "residence" inside the residence.

[Detective Jessie] Smith--accompanied by Minot Police Sergeant Dave Goodman and Detective Krista Thompson, plus six other law enforcement officials--arrived at the residence on the morning of May 6, 2014, to execute the search warrant. Once inside, law enforcement officials interviewed the persons present and learned that the residence had as many as eleven occupants, some of whom sublet basement bedrooms, and all of whom could access the internet service wirelessly. No child pornography was found during the search of the entire residence, including a basement bedroom that Doe and another person rented.

The court says there's nothing wrong with the law enforcement effort, even though it would seem more proper for additional warrants to be sought, rather than simply relying on a warrant whose sworn facts were no longer factual. It's not as though the police didn't have that option. Any concerns about evidence vanishing could have been mitigated using the same steps depicted here:

Doe was not present, but police were told that he was at work, and that he had a laptop computer which he carried in a blue bag. Smith, Goodman, and Thompson, who had been given a description of Doe’s vehicle, proceeded to Doe’s place of employment. The officers spotted Doe’s car in the parking lot, and saw a blue laptop bag on the front seat. Inside the premises, the officers met privately with Doe in a conference room, telling him about their investigation and asking for permission to search his vehicle. When Doe denied permission, the officers advised him that they would seek a warrant to search his vehicle and the laptop, and that he could not remove his vehicle while the warrant was being obtained. Doe was not told that he could not leave the premises. Smith then prepared another search warrant application, supplementing his original affidavit with the results of the initial search of the residence, information learned from interviews of the occupants, and his observation of the laptop bag in Doe’s vehicle; and a second search warrant was issued for Doe’s vehicle and for any computers and electronic devices located in it.

The decision to approach Doe at work had consequences. But only for Doe.

Goodman, Thompson, and Smith then executed the warrant and previewed the laptop computer on site. Once again, they found no child pornography. During this time, a period of about two and one-half hours, Doe was denied access to his vehicle. He was not arrested or charged with any crime. He nevertheless lost his job, and was forced to move out of his rented room.

Doe's life took a hit, thanks to officers working with little more than an IP address -- one shared by at least eleven residents -- and a warrant that should have been invalid the moment it was served. But the court insists moving ahead with a warrant that describes a living situation completely different than the one actually observed during warrant service is still a "reasonable" search that doesn't clearly violate established rights.

As the dissent points out, federal precedent says otherwise. When officers are faced with facts that contradict their sworn assertions, they're supposed to limit their searches to the confines of the warrant they obtained. Failure to do so is to perform searches not backed by probable cause.

Federal courts have consistently held that if officers obtain a warrant to search a building containing a single residential unit, and discover or reasonably should discover during the execution of the warrant that the building actually contains multiple residential units, they are required to limit their search to the unit or units for which they have specific probable cause… Here, once the officers arrived at the building named in the warrant, they realized it had been subdivided into separate units, with as many as eleven tenants and subtenants. All eleven could access the building’s wireless internet, and the officers had no information leading them to any particular unit, tenant, or device. Therefore, the chance of finding child pornography in any single residential unit—including Doe’s rented room—was substantially less than the “fair probability” required for probable cause, and the execution of the warrant was objectively unreasonable.

Likewise, the warrant obtained to search Doe's car and laptop was not supported by probable cause.

The only evidence suggesting that Doe might be the person who downloaded the child pornography was that he was one of at least eleven people who could access his building’s wireless internet, and that he had a laptop computer in his vehicle. This evidence falls far short of establishing probable cause, and “no reasonably competent officer would have concluded that a warrant should issue.”

By upholding the officers' qualified immunity, the court is basically stating it's fine to handle child porn investigations with the same sort of detailed rigor deployed by copyright trolls. Search warrants are apparently being handed out to law enforcement that contain little more than a subscriber's name and a Google Maps photo of the building at the address provided by the ISP. It's speculative policing, requiring almost nothing in the way of actual detective work. But this is very serious stuff. Child porn investigations should be handled much more carefully, considering the severity of the crime, the vulnerability of the victims, and the incredible collateral damage done to innocent people wrongly accused of this crime. Instead, it appears officers are rushing forward with way more enthusiasm than supporting facts.

The evidence here -- rather, the complete lack of it -- shows how dangerous it can be when assumptions are made about IP addresses and those who have access to them. Sure, it's not dangerous for the cops -- they have qualified immunity and tons of judicial slack on their side. But for those on the receiving end, it can cost them their livelihood, even when they're innocent.

Filed Under: 4th amendment, 8th circuit, ip address, privacy, search

Fifth Circuit Says No Warrants Needed To Obtain Near-Real Time Cell Site Location Info

from the prospective-records-just-records-apparently dept

The Fifth Circuit Appeals Court has issued a ruling on cell site location data which basically gives the government permission to engage in real-time tracking without a warrant. The acquisition of historical cell site location data is still the source of much judicial dispute. But at the federal appellate level, courts that have handled these cases have decided no warrant is needed. Location records are just another thing law enforcement can have warrantless access to, thanks to the Third Party Doctrine.

Prospective location records, like those obtained in this case, have received less scrutiny. While ostensibly third party records, these allow for "real-time" tracking of individuals using records flowing directly to law enforcement almost as quickly as they're obtained by the cell service provider. A defendant tracked using this poor man's Stingray moved to have the evidence suppressed, arguing the near-real time warrantless "search" violated his Fourth Amendment rights. The court disagreed, finding the momentary landing at the service provider was enough to make them third party records, even if law enforcement was figuratively (or possibly literally) hovering over the cell provider's shoulder as the location records rolled in. From the ruling [PDF]:

There is little distinction between historical and prospective cell site data. As in Historical Cell Site Data, here the government sought “the disclosure of the locations of cell site towers being accessed by [Wallace’s] cell phone” as recorded in future records “captured, stored, recorded and maintained by the phone companies in the ordinary course of business.” “While this information is ‘prospective’ in the sense that the records had not yet been created at the time the order was authorized, it is no different in substance from the historical cell site information . . . at the time it is transmitted to the government.” Booker, 2013 WL 2903562, at *7. The information the government requested was, “in fact, a stored, historical record because it [was] received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials.”

So, as it stands here (and in other courts), the government is free to obtain phone records from the past and the future -- and, with a "momentary" landing, location records as they're produced. As the court states here, third party records are third party records, whether or not they've been created yet. Even if the officers were wrong about this, the good faith exception would have allowed them to keep the fruits of their search, according to the court.

It's not a great decision. It allows law enforcement to ask for nearly any cell site location records without stating more than a few "articulable facts." An order could be fashioned to serve as open-ended surveillance, allowing officers to track someone for an indefinite amount of time without ever showing a law enforcement need to do so. It also could serve as cover for Stingray use by providing a parallel set of "real-time" location records.

What the decision doesn't explicitly do is give law enforcement permission to deploy Stingrays without warrants. Stingrays turn the government into the "third party," which isn't an acceptable use of the Third Party Doctrine. But that's another area federal courts really haven't delved into yet -- not because Stingray use is so limited, but because the FBI-enforced secrecy surrounding cell tower spoofers has prevented defendants from mounting many successful challenges. Charges tend to be dismissed if defendants get too close to the truth.

It's a published opinion so it has a little precedential weight. But the opinion spends more time quoting other opinions than breaking much new ground here. Unfortunately, the ground broken here is more victim-blaming, reminding defendants it's their own fault they use cellphones, as if most cellphones users were keenly aware their phones act as tracking devices… and as if it weren't a massive law enforcement boon that all of this info can be had without a warrant, thanks to a doctrine in severe need of a massive update.

Filed Under: 4th amendment, cell site location info, csli, searches, third party doctrine, warrants

Appeals Court Pretty Sure DOJ Use-Of-Force Guidelines Don't Violate Police Officers' 2nd And 4th Amendment Rights

from the leaping-at-the-chance-to-look-stupid-at-two-court-levels dept

A few years ago, some Seattle police officers came up with a novel plan to battle DOJ-imposed limits on their use-of-force. Since their union wisely decided to steer clear of this ridiculous legal battle, the officers chose to crowdfund their way into the federal court system.

Armed with a little over $3,000 and some particularly dubious arguments, the protesting cops filed a lawsuit claiming their Second and Fourth Amendment rights were being violated by the DOJ's use-of-force restrictions. It did not go well.

The officers' arguments were unsupported by the Constitution or case law, Chief U.S. District Judge Marsha Pechman said in an opinion issued Monday.

[...]

Plaintiffs can point to no case establishing that the Second Amendment codified a free-standing right to self-defense, as opposed to case law interpreting the textual Second Amendment rights to “keep and bear arms” in light of their purposes…

[...]

Nor did she agree with the officers' insistence that the policy violated a "right of self-defense as embedded in the Fourth Amendment," which protects against unreasonable search and seizures. Pechman said the argument grossly misconstrued Fourth Amendment law.

The lawsuit was dismissed with prejudice by the court. One would think $3,000 only buys a single trip through the federal court system, but apparently appellate-level lawyering is cheaper. The officers immediately appealed the dismissal, and are now finding the Appeals Court isn't any more impressed with the officers' claimed rights violations.

The Ninth Circuit seemed skeptical of Seattle police officers’ claims that a new use-of-force policy mandated by the Department of Justice violates their Second Amendment rights.

U.S. Circuit Judge N. Randy Smith told the officers’ attorney he didn’t “have much of an argument” at a three-judge panel appellate hearing on Monday.

The officers continue to claim de-escalation policies violate their Second Amendment rights by somehow robbing them of the ability to defend themselves. Not quite "Obama's coming for my guns," but close. How armed officers are being stripped of the right to bear arms -- including using them in defense (but perhaps less frequently) -- is something their lawyer hasn't been able to explain to any court's satisfaction.

The Fourth Amendment argument is even worse. Even in the plaintiffs' own words, it's spectacularly bad: a "metaphorical seizure" of their "right" to use whatever force they feel is necessary.

As the opposing counsel points out in a stunning display of logic, the place to protest new police policies isn't this courthouse. It's the one that approved the DOJ consent decree.

If the officers had real concerns about the use-of-force policy, they should have brought them before the federal judge overseeing the police reforms rather than asking an appellate panel to “create a new fundamental constitutional right,” [city attorney Gregory] Narver said.

The 126 Seattle law enforcement officers involved in this lawsuit have achieved the nigh impossible: making a police union look like the saner party in the wake of a DOJ investigation.

Filed Under: 2nd amendment, 4th amendment, doj, police, use of force