Feds Also Using 'Reverse Warrants' To Gather Location/Identifying Info On Thousands Of Non-Suspects

from the just-google-it dept

Because nearly everyone carries a tracking device on their person these days, it's become a whole lot easier for the government to find out where everybody's been. It's TinEye but for people, and it appears to be a new go-to tool for law enforcement. What used to be officers canvassing the area where a crime took place is now a warrant sent to Google to obtain location data and identifying info for all people and devices in the area.

These so-called "reverse warrants" first started coming to light earlier this year. The Raleigh Police Department (NC) was serving warrants to Google in hopes of figuring out who to suspect of committing crimes, rather than having a suspect in mind and working forward from there. The warrants were of the "general" variety, guaranteed to give the RPD location/identifying info of hundreds of non-suspects who just happened to be in the area. There's some evidence Google has pushed back against these warrants, but it hasn't been enough to deter law enforcement from continuing to use Google as one-stop shopping to bulk location/identifying info.

This practice isn't limited to the local boys. Thomas Brewster of Forbes has obtained a warrant [PDF] showing the FBI is doing the same thing.

The most recent order on Google, unearthed by Forbes earlier this week, came from the FBI in Henrico, Virginia. They went to Google after four separate robberies in which unidentified, armed individuals entered and stole from the same Dollar Tree store between March and September this year. The manager of the Dollar Tree was also robbed at gunpoint while dropping off money at a Wells Fargo night-deposit box located just down the road from the store.

The warrant asks for location histories held by Google for anyone within three separate areas—including regions around the Dollar Tree store and the Wells Fargo address—during the times and days the five robberies took place. The FBI also wanted identifying information of Google account holders in those areas, two of which had a 375-meter radius. The other had a 300-meter radius.

Since Dollar Tree stores are never found thousands of feet away from other businesses and residences, the information demanded of Google would include hundreds or thousands of innocent people who live or work near the targeted store.

This isn't the way warrants work. Or, at least, this isn't how they're supposed to work. Unfortunately, the FBI's stated probable cause for demanding this info isn't attached to the document Forbes obtained, so it's unclear how the FBI talked a judge into signing off on this. What the returned warrant does show is no records were returned, suggesting Google is pushing back against broad requests for data that appear to be unsupported by probable cause.

While this may be the digital equivalent of canvassing nearby businesses and residences to search for suspects, these orders make compliance compulsory by eliminating the citizenry. It appears the government believes the combination of warrants and third-party data makes gathering info on hundreds or thousands of non-suspects constitutional. The FBI's warrant also came with an indefinite gag order, so no one included in the search radius had any idea federal law enforcement wanted to know who they were or where they'd been.

This search tactic will continue to be deployed until a court puts an end to it. Without more data, it's hard to say how often magistrates approve or reject these reverse warrants. All we know is some warrants have been approved. And in some cases, Google has refused to provide the data. I'm sure law enforcement knows these demands for data aren't completely constitutional, which may be why we haven't seen any agency bring Google to court for refusing to comply. Additional judicial scrutiny isn't going to do these warrants any favors.

Filed Under: 4th amendment, doj, fbi, location info, reverse warrants, warrants
Companies: google

Ninth Circuit Aligns With Other Circuits: The FBI's Playpen Warrant Was Bad, But The FBI's Faith Was Good

from the winning-by-losing dept

The Ninth Circuit Court of Appeals is the latest appeals court to find the FBI's warrant for malware deployment during a child porn investigation to be invalid, but still close enough for government work. The FBI's NIT (Network Investigative Technique) was sent to visitors of a dark web child porn site called Playpen. The hitchhiking software then traveled out of the district the server was housed in (Virginia) to send back identifying info from computers and devices all over the world.

At the time the warrant was sought, warrants were only valid in the district they were issued. Multiple courts found the FBI's malware was a search under the Fourth Amendment. A smaller subset found the extrajurisdictional search unsupported by current law and the underlying warrant invalid from the moment it was issued. Challenges to the extrajurisdictional searches have all run into dead ends at the appellate level.

The First, Eighth, and Tenth Circuits have all refused to suppress evidence, even if the courts found the search warrant invalid. The reasoning? There was no deterrent effect served by suppressing the evidence because the law changed after the warrant was issued and the malware deployed to allow the FBI to engage in extrajurisdictional searches. In essence, this is retroactive application of a law that changed after the warrant was sought, giving it the sort of blessing courts won't extend to victims of law enforcement misconduct that happened to occur before precedential decisions explicitly declared that particular form of misconduct unconstitutional.

In addition to the retroactive application of Rule 41 jurisdictional changes, these appeals courts have also granted the government "good faith." Somehow, it's believed an FBI agent seeking a warrant for a search that he knew would violate Rule 41 limits when executed wasn't the FBI rolling the dice on favorable rulings and a potential future mooting by changes to the law.

There's more of the same in the Ninth Circuit decision [PDF]. The court says the warrant was bad but the faith was good, so no harm, no foul, no suppression. (h/t Brad Heath)

We agree with Henderson that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.

[...]

The Federal Magistrates Act, 28 U.S.C. § 636, defines the scope of a magistrate judge’s authority, imposing jurisdictional limitations on the power of magistrate judges that cannot be augmented by the courts.

[...]

Relevant here, § 636 authorizes magistrate judges to exercise “all powers and duties conferred or imposed” by the Federal Rules of Criminal Procedure. 28 U.S.C. § 636(a)(1). In turn, Rule 41(b) has been asserted as the sole source of the magistrate judge’s purported authority to issue the NIT warrant in this case. But, as we have explained, in issuing such warrant, the magistrate judge in fact exceeded the bounds of the authority conferred on magistrate judges under Rule 41(b). Thus, such rule plainly does not in fact confer on the magistrate judge the authority to issue a warrant like the NIT warrant. Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge therefore exceeded the scope of her authority and her jurisdiction as defined under § 636.

Thus endeth the bad news for the government -- bad news severely tempered by the fact the government still gets to keep its evidence. Even though the court recognizes the warrant was invalid the moment it was signed, it still gives the government points for effort. The Ninth says it's ok for law enforcement to rely on invalid warrants, so long as they've been signed by a magistrate. And good faith or not, the court says there's no reason to suppress the evidence because the house always wins there's no future misconduct to deter.

[T]here is no evidence that the officers executing the NIT warrant acted in bad faith. “To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers.”

[...]

Further, suppression of the evidence against Henderson is unlikely to deter future violations of this specific kind, because the conduct at issue is now authorized by Rule 41(b)(6), after the December 2016 amendment. The exclusionary “rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations,” Davis v. United States, 564 U.S. 229, 236–237 (2011), and we see no reason to deter officers from reasonably relying on a type of warrant that could have been valid at the time it was executed—and now would be.

With four circuits weighing in and reaching the same conclusions, it seems unlikely any further appellate challenges will upset the FBI's malware apple cart. And if the same conclusions continue to be reached, there will no compelling reason for the Supreme Court to weigh in. Add to that the post-facto codification of the tactics used by the FBI in this investigation and you've got dozens of unconstitutional searches being laundered into Fourth Amendment compliance by courts unwilling to penalize the FBI for overstepping its bounds.

Filed Under: 4th amendment, 9th circuit, doj, fbi, good faith, jurisdiction, nit, playpen, rule 41, warrants

Arkansas Police Department Has Been Engaging In Illegal Drug Raids For Years

from the bogus-narratives-and-boilerplate dept

The War on Drugs seems to bring out the worst in law enforcement. Wiretap abuse, asset forfeiture, flashbang grenades tossed into toddlers' cribs, internal corruption… these are all aspects of law enforcement's drug-related police work.

Radley Balko has uncovered more abuse and Constitutional violations, this time stemming from the Little Rock PD's anti-drug efforts. The wrongs detailed in Balko's investigation include false statements on warrant requests, abuse of no-knock warrants, "reliable" confidential informants who are anything but reliable, and a handful of destroyed lives left in its wake.

It opens with the story of Roderick Talley, whose apartment was raided by a Little Rock (AR) SWAT team. The team used explosives to remove his door, sending it flying onto the couch where Talley was sleeping. The raid was predicated on an informant's supposed controlled buy. But Talley's own security cameras -- which also captured the raid itself -- showed the informant didn't do what police said he did.

The outside camera had recorded two odd incidents. First, a man whom Talley didn’t know approached the apartment while Talley wasn’t home. Looking anxious, the man knocked, waited a few moments and then left. A few days later, the camera picked up a police officer outside the door. The officer looked around, snapped a photo of Talley’s door with his cellphone, and left.

According to the search warrant affidavit, the CI had purchased drugs from Talley, with the swearing officer claiming he had actually witnessed this (nonexistent) purchase take place.

The detective wrote that he and two other detectives then watched as the informant approached Talley’s apartment. Importantly, the detective wrote that the officers “observed the door open” and witnessed the informant have “a conversation with someone inside the apartment.” Immediately after, they met up with the informant at a prearranged location. The informant said he had just purchased $100 worth of cocaine from two men in the apartment. One man took his money at the door, then an inside man handed the door man a small bag of cocaine.

If it hadn't been for his own cameras, it would have been Talley's word against the Little Rock PD's. The only drugs found during the no-knock raid was a misdemeanor amount of marijuana. Talley was then kicked out of his apartment by his landlord and billed for the damages caused by the SWAT team.

Talley isn't alone. Balko details a couple of other questionable raids that can be traced back to the same questionable informant.

Talley says the informant did speak to him, and when he confronted him about his own case, the informant admitted that he never bought cocaine that day. Furthermore, “his girlfriend told me that he’d get paid for each bust, so he’d just take the cops to the places of people he knew or had heard about, knock on the door, and then he’d just make small talk for a few minutes,” Talley says. “Then he’d go tell the cops that he’d bought whatever drug they were looking for.”

That jibes with the accounts of two other people who say they were recently raided because of the informant. Derrick Davis says that on Sept. 2, 2017, a few weeks after the raid on Talley, a strange man knocked on his door. “I’d never seen the guy before,” Davis says. “He just comes up, knocks and walks right in. Then he starts asking weird questions about my apartment, like whether I like living there, and how much the rent is. He stayed for a few minutes, then he thanked me and left. It was weird.”

Two weeks later, an LRPD raid team blew down Davis’s door. “I saw the video of what they did to Mr. Talley. It was exactly what they did to me,” he says. “They used explosives. It blew the door clean off. Then about 10 guys came in, all decked out in SWAT gear.”

What's most concerning about the LRPD's tactics is its reliance on "no knock" warrants. These warrants are supposed to be limited to cases where officers can demonstrate a sufficient need to enter a private residence unannounced. There's a higher bar than regular search warrants and are meant to the rare exception to the rule. For the Little Rock PD, the exception is the rule.

Of the 105 warrants, LRPD officers requested a no-knock raid in 103. Of those 103, Little Rock’s criminal court judges granted the request in at least 101. (The other two search warrants were missing the page that included the judge’s instructions on how the warrant should be served.)

The"neutral magistrate" -- the check against government power -- was, in these cases, the rubber stamp applied to PD boilerplate. Only eight warrant requests contained any specific details about the sought suspect. The other 90+ warrant requests were copy-pasted assertions about drug dealers and danger. As Balko points out, this isn't just lazy police work (and lazy adjudicating), it's actually illegal.

Some police agencies adapted to the Wilson ruling [on no-knock warrants] by simply deciding that all drug cases involve violent suspects and easily destroyable evidence. The Supreme Court rejected this approach two years later in the 1997 case Richards v. Wisconsin. The court ruled that to obtain a no-knock warrant, law enforcement officers must demonstrate specific exigent circumstances for each suspect for whom they’re trying to obtain a no-knock warrant. They can’t simply state that an entire class of crimes, such as drug crimes, presents de facto exigent circumstances.

The Little Rock PD has been engaged in unconstitutional policing for who knows how many years. It just took a set of personal security cameras to catch them in the act. The resulting paper trail has exposed an assembly line for illegal SWAT raids and it's unlikely this Arkansas law enforcement agency is the only one in the nation using the War on Drugs as an excuse for violent behavior and rights violations.

Filed Under: 4th amendment, arkansas, confidential informants, little rock, little rock police department, no knock warrants, roderick talley, swat, war on drugs, warrants

FBI Tried To Get Google To Turn Over Identifying Info On Hundreds Of Phone Owners

from the not-how-the-4th-Amendment-works dept

The US government isn't supposed to seek general warrants. And US judges aren't supposed to approve them. The Fourth Amendment requires a showing of probable cause to justify the intrusion by the government into citizens' lives and property. None of that appears to have happened in this case, brought to us by Thomas Fox-Brewster at Forbes.

Back in March, as it investigated a spate of armed robberies across Portland, Maine, the FBI made an astonishing, unprecedented request of Google. The feds wanted the tech giant to find all users of its services who’d been within the vicinity of at least two of nine of those robberies. They limited the search to within 30-minute timeframes around when the crimes were committed. But the request covered a total space of 45 hectares and could’ve included anyone with an Android or iPhone using Google’s tools, not just the suspect.

This wasn't just a demand for device IDs. The FBI -- as detailed in the warrant request [PDF] -- wanted everything Google had on hand.

In addition, for any Google accounts linked to the accounts or identifiers listed in Attachment A by HTTP cookies, recovery email address, or telephone number, the Provider is required to disclose all records or other information regarding the identification of the account, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which the account was created, the length of service, the IP address used to register the account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and source of payment (including any credit or bank account number).

This is the sort of rummaging the Constitution is supposed to prevent. It's understandable the FBI needed some assistance tracking down robbery suspects, but this grab for a wealth of information about 45 hectares of people milling about minding their own business, isn't. And this sort of thing isn't limited to the FBI. As was covered here earlier this year, the Raleigh PD did the same thing at least four times during criminal investigations in 2017.

In this case, hundreds of people would have been swept up in the dragnet. Certainly, some post-acquisition data sifting would have occurred to narrow it down to people/devices near the location of robberies when they occurred. But whatever happens after info is obtained cannot be used to justify the original acquisition. This warrant never should have been signed.

If there's any good news coming out of this, it's that Google either didn't hand over the info requested or didn't have the info requested on hand.

Google was expected to return the information on April 19, but didn’t. The FBI filed a motion to extend the time it had to get the data, which a judge granted. But Google never handed it over, despite another three FBI motions to extend. Though the prosecutor, assistant U.S. attorney Michael Conley, said a fifth motion would be filed if the data didn’t arrive, the government gave up the ghost earlier this month.

A final returned warrant, dated August 6, simply stated: “Google did not provide information responsive to the warrant.”

The reason for this is unknown. Google provided no comment to Forbes and Brewster-Smith points out the company never filed an objection to warrant itself. It's hard to believe Google didn't have any of this info on hand -- especially considering Google has collected location data even when device users have turned location services off. If nothing else, it should have had some data points on hand. Perhaps there was a lot of discussion behind the scenes between lawyers from both sides that never made it to court but did result in the FBI's please-don't-call-it-"general" warrant being denied.

It also may be the FBI didn't press the issue because it didn't have much confidence in securing a favorable ruling from a judge higher-placed than the magistrate that signed the warrant request. The last thing the FBI wants is precedent set forbidding this sort of collection effort.

Filed Under: doj, fbi, general warrants 4th amendment, location info, maine, portland, robberies, warrants
Companies: google

Court Rejects Evidence From Warrantless Search Of Phone Six Years After The Gov't Seized It

from the doing-nothing-since-2012-doesn't-make-it-still-2012 dept

There are a number of exceptions to warrant requirements, and the government is willing to utilize every one of them to salvage evidence obtained from an illegal search. Sometimes the arguments work. Other times -- like in this instance where six years elapsed between searches -- there's no credible argument for failing to seek a warrant. (via FourthAmendment.com)

Jason Gandy's cellphone was seized and searched "at an international border" in 2012. The phone was held for 48 hours for a forensic search. This did not reveal the contents of the phone, but created an electronic record of what was contained on the phone. The court's description says the search only produced a "technical description" of the phone's contents, but did not expose the contents themselves.

Like it or not, this search -- even a forensic search -- fell under the "border exception" to the Fourth Amendment, which allows law enforcement to search devices for border/national security reasons without having to come up with reasonable suspicion, much less probable cause.

That search was lawful. It was the second search that broke the rules, including one handed down by the Supreme Court in 2014. From the decision [PDF]:

In July 2018, six years after the initial border search, the government conducted a warrantless search of Gandy’s cell phone. On July 11 and 13, 2018, the government produced to the defense the evidence discovered during the search and stated the intent to offer the evidence as evidence.

Maybe the government thought it was grandfathered in to the pre-Riley warrantless phone search standard. Maybe the government just didn't care. Maybe it thought the long list of exceptions would save it, especially the one related to searches at international borders. But it definitely realized it had screwed up when Gandy moved to suppress the evidence, because it did this:

On July 13, after Gandy moved to suppress the newly produced text messages, the government applied for and obtained a warrant to search the phone. The agent who signed the search-warrant affidavit was not the same agent who conducted the 2012 search. The affidavit merely states that the cell phone had been in the Department of Homeland Security’s custody since it was seized at the border in 2012.

The government argued it could perform a warrantless search six years after the phone was seized while nowhere near the border under the border search exception. The court responds with, "Well, why don't we just get rid of the Fourth Amendment altogether, then?"

The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States after being denied entry to the United Kingdom. Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would “both undervalue the core Fourth Amendment protection afforded” cell phones under Riley and “‘untether’ the [border-search] exception ‘from the justifications underlying it.’”

The court also notes that holding a phone for six years before performing a warrantless search removes any question of "exigency" from the discussion. It also refuses to entertain the government's "independent source" argument.

The independent source doctrine does not apply. The government has not shown that the search done—again—after the government got the search warrant was untainted by the earlier, warrantless search. [...] The government has not shown that “there is a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of police misconduct.”

And there's no "good faith" here either. The law was completely settled by the time agents warrantlessly searched Gandy's phone.

The good-faith exception does not apply to the government’s second, warrantless search of Gandy’s phone. That search occurred in July 2018. Under the “law existing at the time of [the July 2018] unconstitutional search,” it is clear that the search was not justified by the border-search exception. The government conducted the search years after the Riley Court clearly held that “what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

It's a strong opinion that expresses very clearly the multiple ways the government screwed up. Unfortunately, the "border exception" remains intact. This allows the government to seize devices, hold onto them for months or years, and search them at its leisure. If the border exception were truly about preventing the smuggling of contraband or drug/human trafficking, you'd think searches would be performed as soon as possible, rather than allowing more than a half-decade to elapse between searches. But as long as people's property remains solely in the control of the government, the more likely it is that searches will be performed whether or not the government truly has an articulable reason to do so.

Filed Under: 4th amendment, forensic search, jason gandy, phone search, warrants

Federal Judge Blasts FBI, Agent For Breaking The Law When Seeking Stingray Warrants

from the to-catch-lawbreakers-you-gotta-break-a-few-laws dept

While it's good the FBI is seeking warrants for Stingray deployments, there's some bad news. This story from Cyrus Farviar from Ars Technica shows FBI warrant procedures are incredibly flawed -- so severely flawed they break state law when they're put to use.

California law does not allow state judges to sign off on warrants for federal agents, something that this particular FBI agent, Stonie Carlson, apparently did not know.

"But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the 'good-faith exception' to the exclusionary rule)," US District Judge Vince Chhabria wrote in a July 3 order. "This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants."

The FBI put its Stingray to use to track cellphones used by people suspected of engaging in credit card fraud. The order [PDF] suppressing the evidence is an entertaining read -- one that doesn't pull any verbal punches excoriating the federal agents involved in this law-flaunting trip through a California courthouse.

FBI Agent Stonie Carlson brought two warrants to the Alameda County Courthouse -- one intimately familiar to the FBI. The judge signed off on the warrants despite state forbidding this practice. The FBI is also not allowed to use state judges for federal warrants, something Carlson apparently didn't know. As the order [PDF] points out, this ignorance alone might have been enough to salvage the warrants and evidence… if that's all there was to it.

A federal agent's mistaken belief that he could be issued a search warrant by a California state judge is likely not, on its own, a basis for suppressing evidence obtained during the search (at least before the publication of this ruling). That is arguably good faith negligence. But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the "good faith exception" to the exclusionary rule).

But no good faith will be awarded here. Judge Chhabria wants to make it crystal clear no more of this "negligence" is welcome in his jurisdiction.

This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants.

As was noted earlier, state/county judges can issue certain warrants to federal and local law enforcement. But only local law enforcement is allowed to execute search warrants issued by local judges. If a federal agent wants to engage in a search or an arrest, they need to get their warrants approved by federal judges. The DEA's inability to follow California law has cost it a few cases over the years. The FBI is going to have the same problem if it doesn't train its agents correctly.

Even if it was a lapse in training, Judge Chhabria isn't interested in forgiving Agent Carlson for his agency's failings. This results in one of the harsher bench-slaps handed out to a federal agent.

At the evidentiary hearing, Carlson claimed that his decision to seek the warrants from state court judges, rather than a federal magistrate judge, was based partly on training his colleagues received from that office. This statement by Carlson may or may not accurately reflect whatever his colleagues learned or told him, since Carlson's general conduct in this case, as well as his testimony at the evidentiary hearing, shows that he is neither well-trained nor particularly concerned with complying with the law in conducting his enforcement activities.

The ruling isn't just issued for the FBI's benefit. It's also there to tell state judges to do their job correctly. But it cuts the judge in this case some slack, but only by suggesting Agent Carlson may have muddied the warrant water deliberately.

[T]he two state court judges who issued the warrants may have been unaware of the legal limits on Carlson's ability to insert himself into the state criminal justice system. The record is not clear on this point. As discussed in the separate unpublished ruling, although the state court judges likely should have known that Carlson was seeking authorization for himself and other federal officers to execute the searches, it is possible they were misled by the paperwork Carlson submitted to them.

The FBI is finally using warrants for Stingrays -- just as the DOJ stated back in 2015. Agents are just doing it as incorrectly as possible, which isn't a huge improvement. Considering the way this one was botched, Agent Carlson may as well have not even bothered filling out an affidavit.

Filed Under: 4th amendment, alameda, fbi, stingray, stonie carlson, warrants

Bad Bill Would Create A Nationwide Exception To Subpoena And Warrant Requirements For Cellphone Location Data

from the STOP-TRYING-TO-HELP dept

It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

The Kelsey Smith Act (H.R. 5983) tries to correct a tragedy that occurred a decade ago by expanding government surveillance authorities. It is a mis-correction.

The bill would force cell phone companies to disclose the location of a person’s device at the request of police who believe that person is in distress. On its face, that’s not unreasonable. But if the police make a mistake—or abuse their power—the bill offers almost no legal recourse for someone whose location privacy was wrongfully invaded.

This law is named after Kelsey Smith, who was murdered more than a decade ago. Police approached Verizon asking for her cellphone's current location, only to be told they needed to get a subpoena. By the time police had obtained that, Smith was already dead -- killed the same day she was kidnapped. As Ruiz points out, Kansas lawmakers immediately carved out an emergency exception for cell location ping orders, stripping away subpoena requirements. This bill would extend that to all 50 states.

The problem is the bill's wording, which would eliminate privacy protections granted to Americans under the nebulous heading of "emergency." The bill's language contains an expansive definition for the new subpoena/warrant exception, which would definitely cover no one idea of an emergency.

The Kelsey Smith Act allows law enforcement agents to access the location of any cell phone that has dialed 9-1-1 for emergency assistance in the last 48 hours. Almost by definition, that’s not an emergency. Emergencies are of-the-moment crises, requiring immediate responses. If you call 9-1-1 today to request emergency assistance, law enforcement shouldn’t be able to get your location information 48 hours later without showing that the call relates to a current emergency.

At this point, service providers can make judgment calls on demands for location info. A provider can demand a subpoena or warrant first, even if law enforcement claims it's an emergency. These assessments are made on behalf of their customers, protecting their privacy against needless intrusion. If the police need the info, they have the burden of showing cause. This bill would do more than simply reverse the burden of proof. It would do away with it completely, forcing service providers to turn over info any time an officer states it's an emergency.

The problem with granting law enforcement a longer leash in these cases is they've been shown to abuse the permissions they already have. The EFF's post contains statements from the ACLU's Nate Wessler about abuse of emergency exceptions in police departments all over the nation, used in criminal cases involving no real emergencies.

But that's not all. The Justice Department's watchdog has uncovered systemic abuse of the same exceptions by federal officers.

In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

While nominally limited to phones that have dialed 9-1-1, the exception encourages officers to think outside the Fourth Amendment's box and use the paperless route whenever possible. This isn't speculation. This is what's already happening. At this point, it's still mainly up to service providers to fend off BS demands for location data. If this bill passes, the last barrier will be torn down, turning service providers into unofficial extensions of law enforcement agencies.

Filed Under: 4th amendment, emergencies, exceptions, kelsey smith, kelsey smith act, law enforcement, location info, subpoena, warrants

Post-Carpenter Ruling Says Call Records Aren't Content Or Cell Site Location Info; Thus, No 4th Amendment Protection

from the narrow-ruling-means-narrow-applications dept

Judicial citations and applications of the recent Supreme Court decision in the Carpenter case continue to roll in. The narrow holding by the Supreme Court was that acquisition of cell site location info (CSLI) now requires a warrant, seeing as it can be used to effectively "track" someone over a period of days or months. Historical CSLI -- especially large amounts of it -- is far more revealing than many other records covered by the Third Party Doctrine. An "equilibrium shift" was needed and the court applied it.

The shift is trickling down to lower courts, leading to some examinations of the Carpenter ruling in cases that don't appear to call for it. The Supreme Court of California, ruling [PDF] on a case that originated 15 years ago, takes a brief moment to weigh the Carpenter ruling against the specifics of this appeal. (via FourthAmendment.com)

At stake here -- one of the several challenges raised by the defendant -- are phone records gathered with an SCA court order. Phone records were left undisturbed by the Carpenter ruling, but here's the court's brief examination of the issue.

The prosecution presented telephone records and testimony showing telephone calls among the various participants during relevant times. It obtained the telephone records pursuant to a court order under 18 United States Code section 2703, part of the federal Stored Communications Act. (See Carpenter v. United States (June 22, 2018, No. 16-402) 585 U.S. __. __ [2018 WL 3073916 p. *4].) Defendant moved to suppress the evidence, partly on the ground that obtaining the records without a search warrant violated his rights under the Fourth Amendment to the United States Constitution.

Unsurprisingly, the trial court -- ruling years before the Supreme Court's decision -- found this to be constitutional under the Smith v. Maryland decision, which solidified the Third Party Doctrine framework. The court here notes the records now exempted from the Third Party Doctrine include records obtainable under the Stored Communications Act. Still, it finds no violation -- not because the Carpenter ruling wasn't in place yet, but because call records aren't communications.

The United States Supreme Court has now held that a search warrant is needed to obtain at least some types of information governed by the Stored Communications Act. (Carpenter v. United States, supra, 2018 WL 3073916.) The court stressed that its holding is “narrow,” and that it did “not disturb the application of” cases such as Smith v. Maryland, supra, 442 U.S. 735. (Carpenter, at p. *13.) It is not clear whether Carpenter’s holding would apply here. But we need not decide the question. Any error was harmless beyond a reasonable doubt. The evidence merely showed that some of the alleged conspirators communicated by telephone at certain times; the content of the communications was not revealed. Although relevant, the evidence was unimportant in light of the trial as a whole.

Even if this were being challenged post-Carpenter and even if the originating events happened after the Supreme Court's decision, the outcome would still be the same. The Supreme Court issued no opinion on the privacy implications of phone call metadata and took care to leave the Third Party Doctrine standing, minus the small part it trimmed off for historical CSLI. Content has always required warrants. There's a whole set of wiretap laws and litigation pertaining to it. Dialed numbers haven't been given Constitutional protection in over 50 years. But it is good to know courts are at least seeking to apply the ruling in cases where there's no obvious application, rather than ignoring the implications of the ruling completely.

Filed Under: 4th amendment, call records, carpenter, location info, scli, warrants

South Carolina Drug Warriors Routinely Serving Regular Warrants Like No-Knock Warrants

from the not-constitutional-and-a-whole-lot-more-dangerous-for-everyone-involved dept

Radley Balko is uncovering more rights violations and more law enforcement falsehoods with his coverage of South Carolina resident Julian Betton's lawsuit against the Myrtle Beach-area drug task force. Betton's house was raided by the drug unit after a confidential informant made two pot purchases for a total of $100. The police didn't have a no-knock warrant, but they acted like they did, going from zero to hail-of-gunfire in mere seconds. (via FourthAmendment.com)

On April 16, 2015, the task force battered Betton’s door open with a ram, then almost immediately opened fire, releasing at least 29 bullets, nine of which hit Betton. One bullet pierced a back wall in the building, sped across a nearby basketball court and landed in the wall of another house. (This was a multi-family building.)

Betton was hit several times. He didn't die, but he doesn't have much left in working order. He lost part of his gallbladder, colon, and rectum. His liver, pancreas and small intestine all suffered damage. His left leg was broken along with one of his vertebrae.

The cops immediately set about justifying their extreme tactics. First, they claimed Betton fired at them, but ballistics tests showed Betton's gun hadn't been fired. Then they claimed he pointed a gun at them, but did not fire it. This could have easily been proven if any of the task force had bothered to activate their body cameras before breaking Betton's door down. But the footage shows no cameras were activated until after the task force stopped firing.

The task force used a regular search warrant, meaning the officers were supposed to knock and announce their presence. Nearly all of them said they followed these stipulations. Video from Betton's home security camera (which can be seen at the Washington Post) caught all these officers in a lie.

These 11 seconds of footage from that camera show that no member of the task force knocked on Betton’s door.

The video lacks audio, but both the Myrtle Beach police chief and a federal magistrate have since concluded that the video also strongly suggests there was no announcement. None of the officers’ lips appear to be moving, and it all happens very quickly. At best, they announced themselves simultaneously or nearly simultaneously, with the battering ram hitting the door.

A neighbor who was on Betton's sidewalk (and was told to lie on the ground by the task force on their way to Betton's door) backs up the camera footage. No announcement was made before the door was breached.

This is apparently standard operating procedure in Myrtle Beach. Only in rare cases does the task force seek no-knock warrants. (Task force officials say no-knocks are only "1-2%" of warrants obtained.) But they apparently serve plenty of normal warrants without knocking or announcing their presence.

It seems clear from the testimony in depositions that the 15th Circuit Drug Enforcement Unit doesn’t know any of this. Officer Christopher Dennis, for example, said that the “reasonable” waiting period for someone to answer the door begins the moment police arrive on the scene, not after they knock and announce themselves. This is false. Officer Chad Guess — who, remember, planned the Betton raid — said in a deposition that it’s “not the law to knock and announce. You know, it’s just not. It’s the officer’s discretion, each dictate determines itself.” This, again, is wrong. Officer Belue said under oath that he had no idea how long officers are supposed to wait before forcing entry, and that no one had trained him on the matter.

It's a convenient misunderstanding of the law. It's made even more convenient by the task force's lack of clearly-written policies on serving warrants. Since everyone of the task force remains as ignorant as possible, they're more likely to be granted immunity when victims of unconstitutional drug raids take them to court.

But these officers may not get off so lightly. Their reports and testimony have been disproven by the 11 seconds of video captured by Betton's security camera. Officers who swore they knocked and announced their presence now have to explain how those both occurred with zero officers knocking on Betton's door or even moving their lips.

More lies can be found elsewhere in the report. Officers stated in police reports they heard the sound of Betton's gun firing. Ballistics testing has shown Betton never fired his handgun, so everyone making that same claim about gunfire is either mistaken about what they heard or, more likely, aligning themselves with the narrative they created in the aftermath of the shooting.

Maybe these officers are hoping their professional ignorance will outweigh their bogus reports. The task force has made it incredibly easy for members to write their own rules when executing warrants. As Balko points, the single most invasive and dangerous thing the task force participates in (~150 times a year) -- warrant service -- has zero official policies dictating how task force members serve warrants. Apparently, all that time and effort went into creating a cool skull-and-crossbones logo for members to stitch on their not-very-coplike raid gear.

In any event, the court system is the last stop for justice. If any of these officers are ever going to be held accountable for their actions in the Betton raid, it will be here. Every level of oversight task force members answer to has already offered their official blessings for the knock-and-announce warrant that was carried out without knocks or announcements.

What happened to Julian Betton is an entirely predictable product of the failures, culture and mindset of the 15th Circuit Drug Enforcement Unit. And yet to date, state officials won’t even concede that this was a bad outcome, much less do anything to prevent it from happening again. Citing the SLED investigation, South Carolina solicitor Kevin Bracket cleared the officers of any wrongdoing within just a few months. In the three years since the raid, no officer involved has been disciplined, even internally. Nor has any officer has been asked to undergo additional training. No policies have been changed. The DEU never bothered with its own investigation, or even an after-action examination to determine what went wrong.

The police clear themselves of wrongdoing and a pending civil lawsuit has zero motivation effect on the drug unit. The task force is operating outside Constitutional boundaries with no internal guidance or effective oversight. Myrtle Beach-area drug warriors have no desire to clean up their act, and a large settlement paid by taxpayers is unlikely to result in a change of heart.

Filed Under: 4th amendment, drug task force, drugs, julian betton, no knock warrants, south carolina, warrants

Apple's Latest Transparency Report Shows Gov't Still Not All That Interested In Seeking Warrants

from the an-NSL-a-day-keeps-the-oversight-away dept

Apple has released its latest transparency report. It shows the United States, by far, has the most interest in obtaining user content and data from the company.

New figures in the company's second biannual transparency report for 2017 show that Apple received 29,718 demands to access 309,362 devices in the second-half of the year.

Data was turned over in 79 percent of cases.

The number of demands are down slightly on the first half of the year, but the number devices that the government wanted access to rocketed.

What it doesn't show, however, is how much is being obtained using only subpoenas. Warrants are needed for content. That Apple's latest report [PDF] makes clear.

Any government agency seeking customer content from Apple must obtain a search warrant issued upon a showing of probable cause.

But in 90% of cases listed in the report, only a subpoena was delivered to Apple. What isn't made explicitly clear is whether or not content was sought using something other than a warrant. Apple says the government requested content 608 times using 270 warrants, which isn't necessarily a problem, considering more than one device/account may have been targeted. That still leaves more than 4,000 subpoenas Apple classifies as "Device Requests." Unfortunately, sussing this out more granularly is pretty much impossible because Apple's definition of "device requests" leaves a lot to be desired.

[D]evice-based requests received from a government agency [seek] customer data related to specific device identifiers, such as serial number or IMEI number. Device-based requests can be in various formats such as subpoenas, court orders or warrants.

Given Apple's public battle with the DOJ over encryption, it's very likely the company is demanding warrants when customer content is sought. But it could do better breaking down these requests into content and non-content demands.

That being said, there's a lot of detail in the report that isn't found in transparency reports by other tech companies. The whole thing is worth reading, if only to marvel at the massive amount of data demands being made by US law enforcement. And it appears the FBI (and other federal agencies) still prefer writing their own paperwork, rather than subject themselves to the minimal judicial scrutiny subpoenas require. National Security Letters are, by far, the most popular way for the government to seek subscriber/customer data. Apple received more than 16,000 NSLs targeting ~8,000 accounts in the last six months of 2017 alone.

While Apple has refused to publish the NSL behind a successfully challenged gag order, it appears ready to add yet another layer of transparency to future reports.

The company said beginning in the next transparency report -- expected later this year -- Apple will disclose the number of apps removed from its app stores.

This should make the next report an even more interesting read. It would be nice if Apple would set up a clearinghouse for government demands -- a la Lumen's database of takedown/removal requests -- but for now, any transparency is better than the opacity we dealt with prior to Ed Snowden outing multiple pervasive surveillance programs.

Filed Under: law enforcement, subpoeanas, transparency, transparency reports, us government, warrants
Companies: apple