Judge Tears Apart Law Enforcement's Ridiculous Assertions About 'Suspicious' Behavior

from the now-we-just-need-a-few-hundred-more-judges-like-him dept

This opinion -- written by Texas appeals court judge Brian Quinn -- is a breath of fresh air for those of us who have watched as courts have continually deferred to law enforcement officers and their declarations that nearly everything drivers do -- or DON'T do -- is "suspicious."

It's also a slap in the face of those same law enforcement officers -- the ones who use their "experience and training" to find nearly any action, or lack thereof, to be supportive of a warrantless search.

As Scott Greenfield points out, Judge Quinn does something few judges are willing to do: be honest.

In a remarkable decision, Chief Justice Brian Quinn of the Texas Court of Appeals, Seventh District at Amarillo, does something that could destroy the very foundation of the criminal justice system. He’s intellectually honest.

The opinion deserves to be quoted from at length, which is exactly what I'm going to do. Judge Quinn skewers both the supposed indicia of "suspicious" behavior as well as officers' routinely unchallenged assertions that such stretches of the imagination are based on years of "training and experience."

The opening of the opinion [PDF] is fantastic, a wonderful taste of the more thorough examination (and debunking) of the officer's claims that follows. (Internal citations omitted and linebreaks added for readability.)

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.

Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).

The defendant was pulled over for driving three miles above the speed limit. When approached on the passenger side of the vehicle by the deputy, the defendant opted to open the door. Starting with nothing, the officer quickly built a case for drug trafficking in his mind.

He approached the passenger side of the stopped vehicle. Instead of lowering the car window, though, appellant opened the passenger door. That was suspicious to the officer because in his “training and experience” drug smugglers have lined car doors with drugs which act impedes a window’s operation. Once the door was open, the deputy smelled cigarette smoke and a strong scent of cologne; so too did he see the car’s ashtray full of cigarette butts. Those circumstances added to his suspicion because from his “training and experience” he knew that drug smugglers have used odors to mask the scent of drugs. Soon he discovered that the vehicle happened to be a rental with “no smoking” decals affixed to it, and appellant apparently was returning from some unknown casino to Miami, Florida. The deputy recalled from his “training and experience” that drug smugglers rent vehicles to transport their contraband. So, the presence of a rented vehicle heightened his suspicion that his detainee may be engaging in criminal activity. Also noted by the deputy was appellant’s “severe” nervousness and failure to calm down after being told that he would only be receiving a warning ticket.

A drug dog on the scene was deployed and several pounds of marijuana were uncovered in the resulting search. But that doesn't matter now because Judge Quinn isn't buying the excuses that elevated a traffic stop into a warrantless vehicle search. As Quinn sees it, simply relying on (unproven) "experience" isn't enough to justify a search simply because some indicators might fit profiles of those arrested in the past.

In other words, unusual behavior may fit the profile of someone who engages in a particular kind of crime. But what elevates it to the level of reasonable suspicion is not that it fits a profile but that it is unusual and the officer can explain why it is suspicious in the particular scenario before him. Id. That is, the officer must explain why the activities are unusual and, therefore, meaningful in the specific case under assessment. To reiterate what we said in Gonzalez-Gilando, just because that bald guy committed a crime while wearing a suit and after eating spaghetti does not mean that other bald guys who wear suits while eating spaghetti are about to engage in crime too.

Certainly, the deputy must be given some credit for his asserted "training and experience," Quinn acknowledges:

Smoking in a car while driving despite the presence of “no smoking” stickers, wearing cologne, driving a rental car, driving with windows rolled up, opening a car door, not rolling down a car window, travelling to casinos, and driving to Miami, Florida are activities committed by people who have no relationship to criminal activity. Alone, none of them implicitly or explicitly connote criminal activity. Nor to the reasonable, common man would they connote such activity if they occurred all together. Yet, the test is not what the common man thinks but what the reasonably prudent officer would perceive under the same circumstances. And, that requires us to view the situation through the prism of the detaining officer’s knowledge and experience.

But how much credit, especially if the only thing backing up claims of "experience" is the deputy's assertion itself?

[A]side from the deputy simply invoking his “knowledge, training and expertise,” the State did little to illustrate of what it consisted or how it was garnered.

Quinn examines the state's sole witness and his claims of "experience."

To one trained and experienced in the fields of law enforcement, smuggling, human behavior, and drug interdiction, each of the aforementioned indicia have special significance, opined by the deputy here. Yet, what of the deputy’s training and experience and knowledge — what does the record say about it. Our answer is, not much.

The state apparently wants circular reasoning to do its job for it.

We were left to accept as suspicious what the deputy said was suspicious merely because he said it was suspicious given his unexplained level of “knowledge, training, and experience.”

Every one of the supposed indicators of "suspicion" are probed by the court and discarded. First, Quinn notes that people are more likely to be nervous when speaking to law enforcement officers than not, especially if the questions turn to suggestions of criminal behavior. As to the cigarettes and cologne being nothing more than masking agents to conceal drug odors?

People smoke cigarettes in cars while driving. Indeed, that act is so common manufacturers designed cigarette ashtrays into their vehicles. So too is wearing fragrances a commonplace event. If this were not so then seldom would we be accosted by the myriad aromas wafting through the air at the entrances of many department stores. And, if both the overpowering scent of cologne and the presence of cigarette smoke could mysteriously dissipate upon entry into a car, many of us would not have been bothered as a child by that parent who happened to strike up his Pall Mall after dousing himself with Aqua Velva in the morning. Yet, those common activities became unusual and indicative of drug smuggling when performed on an Interstate highway, according to the deputy.

The same goes for the "suspicious" behavior that is renting a vehicle.

We accept the likelihood that people who have rented cars have also possessed drugs within them at one time or another. But, so too do we accept the likelihood that people have rented cars without engaging in such criminal conduct. The deputy was not asked to explain whether, from his “knowledge, training or experience,” he could opine if one scenario happened more than the other or if the former occurred to such an extent so as to provide rational basis from which to infer some significant nexus between rental cars and drugs.

The court notes that there was one suspicion the deputy could have cleared up immediately but, for some reason, chose not to: that the driver did not roll down the window because the door panels were filled with drugs. But rather than check the window himself or ask the driver to do it for him, the deputy opted to leave this mystery unsolved and engage in some logical gymnastics.

What we have here is a mere leap from the fact that appellant opened the car door to the assumption that the car windows do not work because the doors are stuffed with drugs. There may be other reasons why someone opens a door rather than a window. One of those reasons may well be a circumstance also mentioned by the deputy. To him, appellant seemed “confused” when the deputy opted to approach the passenger-side door as opposed to the driver-side door. Nor can we ignore the deputy’s own testimony regarding the number of times he had encountered drugs being hidden within the doors of a car driven on the Interstate. Again, that number was just “a few.” Such limited experience makes a leap from 1) opens door to 2) drugs in door little more than a hunch.

The caveat, of course, is that this opinion means little more than Judge Quinn won't be as easily swayed by assertions of "expertise." Many, many other courts will continue to treat such law enforcement proclamations as unimpeachable. The other problem is that Quinn's opinion simply demands law enforcement officers do a bit more CV-buffing before testifying in court, as Scott Greenfield points out.

Chief Justice Brian Quinn’s opinion reflects intellectual honesty. The upshot is that the legal system will still believe any nonsensical lie told by a cop on the stand if the prosecution fleshes it out with enough background fluff to satisfy the demand of creating the appearance of expertise.

More courts need to be willing to challenge such questionable connective tissue between observed (but often normal) behavior and suspicionless stops and searches. Most won't. And haven't. And that's why we're in the situation Judge Quinn describes in the opening paragraph of his opinion: where breathing and having two hands are next on the list of criminal activity indicia.

Filed Under: 4th amendment, brian quinn, police, search, suspicious behavior, texas

Court Shuts Down Argument That Warrantless Seizures Of Cell Phones Is Fine Because Criminals Use Cell Phones

from the criminals-are-also-know-to-use-cash,-carry-wallets dept

The Boston Police Department advanced a rather novel legal theory in court recently: because criminals are known to use [common item X], [common item X] can be seized without a warrant. Insert any item into that equation and see what it gets you.

The specifics of the case don't make the theory any less dubious. In this case, the item was a phone owned by a high school student. An investigation of a robbery that resulted in the death of a store clerk resulted in BPD investigators believing the student might be a suspect. From the opinion [PDF] (h/t Brad Heath):

The following day, February 24, 2010, the defendant arrived late to his high school. Pursuant to the school's usual practice for all arriving students, he was searched and his "pay-as-you-go" Samsung/Sprint cellular telephone, equipped with a camera, was confiscated. That afternoon, a detective investigating the robbery-homicide met with one of the school's administrators. The administrator told the detective that the defendant had become "agitated" earlier that day and had left the school without picking up his cellular telephone. The detective notified a supervisor that the school was holding the defendant's telephone. \

Neither the detective nor the supervisor had, at that point, any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators. The supervisor instructed the detective to seize the device without a warrant apparently on the basis of his belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station, where it was logged as evidence and placed in a special bag designed "to prevent remote intrusion." Police did not search the device.

The fact that the phone could have been retrieved by the student and any evidence on it destroyed was the "exigent circumstances" used to justify the seizure. The phone actually sat around in the evidence locker for 68 days before it was searched. However, the "exigent circumstances" argument failed to salvage the warrantless seizure because the state argued it was allowed to seize anything that could conceivably be used by criminals.

Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.

The shorter version of this legal theory:

A criminal act was committed. Criminals often use cell phones to communicate and/or document their criminal acts. Therefore, any phone can be seized and held without establishing probable cause for the seizure. Just in case.

The court isn't interested in entertaining law enforcement's assertion that it should be able to seize electronic devices speculatively.

In essence, the Commonwealth is suggesting that there exists a nexus between a suspect's criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer's averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person's cellular telephone to seizure and subsequent search.

Noting the Supreme Court's Riley decision, as well as other cases relevant to this search and seizure of cell phones, the state court finds that allowing this argument to salvage the warrantless seizure would turn the Fourth Amendment into a meaningless pile of words.

We cannot accept such a result, which is inconsistent with our admonition that "individuals have significant privacy interests at stake in their [cellular telephones] and that the probable cause requirement . . . under both the Fourth Amendment . . . and art. 14 . . . [must] serve[] to protect these interests." '

Furthermore, it finds that the 68-day gap between the seizure and search was unreasonable. The state argued that the investigation was "complex," but the court points out investigators obtained five other search warrants during that same time period.

Even if it had been more timely in its acquisition of a warrant, that still wouldn't have been able to rescue the evidence it located on the suspect's phone. Because the underlying seizure was performed without probable cause, the use of a warrant for the search did nothing but create a paper trail for "poisoned fruit."

Hopefully this reversal will deter future seizure attempts by state and local law enforcement. Without the ruling in place, anything from cars to computers could end up being taken and held by police under the assumption that criminals use such items. That's not probable cause. That's not even reasonable suspicion. It's fishing expeditions waiting to happen and speculation taking precedent over Fourth Amendment protections.

Filed Under: 4th amendment, criminals, mobile phones, search, warrants

Judge Overturns Denied Email Search Warrant, Says Gov't Can Get It All, Dig Through It Later

from the the-particularity-of-'every-email-in-the-account' dept

The "Magistrate's Revolt" was fun while it lasted. Post-Snowden, a few magistrate judges began viewing law enforcement's electronic search warrant applications with a bit more skepticism. These judges also rolled back a bit of the deference extended to the federal government, forcing the DOJ to narrow search requests or drop gag orders.

The first flames of the revolt to be snuffed out occurred in a DC district court -- the same district where "In re Sealed Case" is the most common docket entry -- when Judge Richard Roberts overrode two decisions by magistrate judge John Facciola. The deference to "government knows best" was reinstated and the feds got their gag order and broad search requests approved.

The same thing is happening in the center of the country. Orin Kerr of the Volokh Conspiracy reports that a Kansas district court judge has reversed magistrate judge David Waxse's denial of an email search warrant.

In March, Waxse handed down a decision rejecting a warrant to search several Hotmail email accounts on the ground that the two-step procedure used to execute email warrants violated the Fourth Amendment. Under the procedure, the warrant orders the service provider to hand over the entire account; the government then searches the entire account for the information sought in the warrant. Echoing his decision from 2015 about cellphone searches, Waxse held in March that this two-step procedure violates the Fourth Amendment particularity requirement unless the government includes a sufficient set of ex ante search protocols guiding the warrant.

So much for that. Kansas district judge Carlos Murguia has decided [PDF] that a request for the entire contents of an email account is "sufficiently particular."

In applying the law to the warrant at issue, this court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e)(2) authorizes the “seize first, search second” two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e)(2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government’s ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.

The district court judge finds the government's affidavit is lacking in probable cause, which means the government won't get to use this particular warrant, but it will no longer have to battle Judge Waxse in the future for permission to grab everything.

Judge Murguia also looked at various ex ante search restrictions Waxse suggested and basically says it's up to the government to decide whether or not to incorporate these.

Although Judge Waxse included many options in his order, these were simply suggestions for the government in the future, not court-ordered ex ante instructions for the issuance of this specific warrant. Had Judge Waxse, for example, provisionally granted the warrant under the premise the government would submit a search protocol, or had he granted the warrant but ordered the use of a special master to search the data seized from the Provider, this court could then review those court-ordered ex ante limitations for reasonableness. Because no ex ante instructions were ordered, this court has nothing to review, and to comment on the reasonableness of each suggested limitation would result in this court issuing an advisory opinion.

Presumably the government will continue to operate without the suggested restrictions. The door isn't shut on magistrates imposing further restrictions on granted searches, but chances are these will be removed by sympathetic judges at the district level.

That being said, Judge Murguia isn't completely blind to the implications of "seize first, search later" warrants.

This court first acknowledges Judge Waxse’s concern with properly balancing an individual’s right to privacy with the government’s ability to effectively prosecute criminals. The digital storage era has caused a need for courts to reevaluate well-established Fourth Amendment standards.

Unfortunately, that reevaluation will have to wait for another day… and another challenge more specifically suited to address the issue at hand.

Filed Under: 4th amendment, search, warrants

Cop To Court: This Normal Behavior I Literally Observe All The Time Is Suspicious Behavior Justifying A Traffic Stop

from the this-is-a-routine-occurrence...-possibly-TOO-routine dept

In which the government argues that avowedly suspicionless behavior is reasonable suspicion.

Carlos Velazquez was pulled over by Officer Ken Scott, a "traffic investigator" patrolling the Ft. Bragg military base in North Carolina. Scott observed Velasquez make a right-hand turn at a stop sign, then reverse course when he encountered a gate preventing traffic from entering the Ft. Bragg Special Operations Compound. The stop resulted in the search of the vehicle and, eventually, the discovery of illegal drugs.

Velazquez moved to suppress the evidence, arguing that the stop was suspicionless. The government disagreed, but Scott's own testimony indicates it was a suspicionless stop. Scott claimed the stop was justified because he believed Velazquez was "intoxicated or lost." That last part Scott himself ignored, even during his testimony as the government's sole witness. The actions Scott viewed as "suspicious" during his justification of the traffic stop were also actions Scott had witnessed numerous times while patrolling the area around the military base.

Lamont Road ends at an intersection with Manchester Road. At the time of this incident, if a driver turned right from Lamont onto Manchester, he would encounter a closed gate with a "Do Not Enter" sign. Id. at 1:09:20-1:09:30. If a driver turned left from Lamont onto Manchester, the road would take him towards various training areas and, ultimately, the town of Southern Pines. Id. at 1:10:20-1:10:29.

Officer Scott described this area as wooded with no lighting with minimal, if any, phone and radio signals. Id. at 1:10:39-1:10:49. Officer Scott also stated that there are no individuals in that area at night. Id. at 1:11:16-1:11:22. Officer Scott also testified that he has often assisted individuals who were lost in the area, including those following GPS. Id. at 1:12:17-1:12:36. Officer Scott stated that he had often received calls of lost individuals utilizing GPS where the GPS would take them off the main road. Id.; id. at 1:17:01-1:17:15. He also stated that there are no phone signals and radios often do not operate in this remote area. Id. at 1:10:50-1:10:55.

Officer Scott did not provide any details on how many suspicionless stops he has performed after viewing behavior he admittedly finds unsuspicious. There's also nothing in the decision that indicates Scott observed anything about Velazquez's behavior during the stop that would have added to his suspicions. Instead, as the court points out, everything Velazquez did was entirely normal, given what Officer Scott had observed during previous patrols.

Here, the evidence demonstrates that Velasquez was driving on a public road shortly after midnight on a Saturday morning. When he reached an intersection, he stopped completely and proceeded to make a right turn. After encountering a fence informing him he was not allowed to proceed further, Velasquez turned his vehicle around and proceeded down a public, albeit remote, road. At no time did Officer Scott observe any erratic driving, traffic violations, or other conduct that indicated Velasquez was intoxicated. There is no indication that there were concerns that Velasquez posed a threat to the physical security of the base or personnel or that he was seeking unauthorized access to the Special Operations Compound. Officer Scott's decision to pull Velasquez over appears to have been based entirely on his presence on a public road at night and his right turn at the intersection of Lamont and Manchester Roads. Given that Officer Scott was aware that individuals frequently became lost in this area and that GPS systems would often cause individuals to make wrong turns, these facts are insufficient to establish that Officer Scott's stop of Velazquez's vehicle was supported by reasonable suspicion of criminal conduct.

No one likes to lose a drug bust, but offering up an argument that basically amounts to "the lack of suspicious behavior made me suspicious" is even worse than the government's routine insistence that driving from state to state on paved highways is suspicious because criminals often travel from state to state on paved highways.

While officers are generally free to make up their own traffic laws to initiate suspicionless stops, the officer here apparently failed to come up with anything better than "possibly [and suspiciously] lost" after interacting with Velazquez. The officer lucked into a drug bust, but "fortuitous discovery" isn't a recognized Fourth Amendment exception (or, at least, it shouldn't be one -- see also: "good faith").

There are few activities that separate citizens from their Fourth Amendment rights faster than driving but, at least in this decision, the rights didn't evaporate quite as quickly as Officer Scott may have hoped. Away goes the evidence. With that dismissed during oral arguments, the government decided there was nothing left to prosecute, so the charges have been dropped as well.

When Dirty Harry acolytes bitch about "technicalities" putting drug dealers back on the streets, these are the sorts of things they're often unknowingly referring to: law enforcement's inability to stay within the confines of the law and the Constitution.

Filed Under: 4th amendment, carlos velazquez, ft. bragg, ken scott, search, traffic stop

Verizon Buys Yahoo In $4.8 Billion Attempt To Bore The Internet To Death

from the hip-to-be-square dept

Remember when Yahoo rejected a $44.6 billion offer by Microsoft? Good times. After months of redundant rumors about the bidding process, Verizon has confirmed that it has acquired Yahoo in a $4.8 billion all cash deal. According to Verizon's press announcement, the acquisition of Yahoo's stumbling empire will position Verizon as a superpower in the new media age, helping the formerly stodgy telco in its pivot toward slinging ads at Millennials. As you might expect, the press release trots out AOL boss Tim Armstrong to sell a dull deal he claims will finally let poor Yahoo shine:

"We have enormous respect for what Yahoo has accomplished: this transaction is about unleashing Yahoo’s full potential, building upon our collective synergies, and strengthening and accelerating that growth. Combining Verizon, AOL and Yahoo will create a new powerful competitive rival in mobile media, and an open, scaled alternative offering for advertisers and publishers."

Verizon executives have acquired Yahoo and AOL in the belief they can pivot from a government-pampered telco mono/duopoly to a Facebook and Google-esque advertising juggernaut. And while there is little doubt that the advertising technology acquired from these deals will be useful in Verizon's quest to monetize the company's 140 million mobile subscribers, there's been little to no evidence that Verizon is actually competent enough to execute its own game plan.

Verizon's jumping into the media and advertising game because mobile and fixed broadband subscriber growth is slowing to a point where it's incredibly profitable, but just not profitable enough for Wall Street. And if you've followed the net neutrality fights, you're probably aware that most telcos believe they're absolutely entitled to a larger share of ad revenues -- simply because they built the networks these services run over. The problem (for these telecom companies) is that most of them have spent so long as government-pampered duopolies focusing on lobbying and turf protection, innovation and competition are alien concepts.

As a result, pivoting from stodgy telco to hip Millennial-focused ad empire has had an almost comical learning curve for Verizon execs. You might recall it began with Verizon launching its own tech blog dubbed Sugarstring, where its reporters weren't allowed to even mention subjects like net neutrality or surveillance. As that effort was busy imploding, Verizon's advertising arm was busted covertly modifying wireless user data packets to track consumer behavior around the Internet. This is of course all while Verizon was busy trying to deliver a killing blow to net neutrality; not exactly endearing itself to its target audience.

After several years of stumbling, Verizon launched a new, hip streaming video service Go90, which by most measurements has been a disappointment, despite Verizon's anti-competitive practice of zero rating the service. Now we're to believe that the combination of multiple, marginal 90s brands will somehow be the missing ingredient needed to transform Verizon into a media and advertising god, despite the fact Verizon has shown minimal competence and an aggressive, active disdain for the users it's trying to target. Good luck with that, Verizon.

Filed Under: advertising, mergers, search
Companies: aol, verizon, yahoo

Court Says Cop Calling 911 With Suspect's Phone To Obtain Owner Info Is Not A Search

from the bring-on-the-cellphone-tracking-devices! dept

An interesting ruling out of Georgia states that an unconventional method to determine a cell phone's owner is not a search under the Fourth Amendment. The appeals court decides [PDF] that the information obtained has no expectation of privacy.

Because Hill had no reasonable expectation of privacy in the information at issue – his own name, date of birth, and phone number – we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse.

The background is this: James Brandon Hill exited a taxi cab without paying, leaving his phone behind. The cab driver reported this to the police and an officer dialed 911 to obtain the owner's info. The court doesn't touch the issue of abandonment -- which would likely have made the search legal. But its decision that the method used to obtain this info isn't a search seems to be a bit off.

While the information received may have had no expectation of privacy, an officer accessing a cell phone without a warrant is questionable under the Supreme Court's Riley decision. As noted above, the warrantless search still likely would have survived a motion to suppress as the phone was abandoned in the cab. In fact, Hill does not challenge the seizure of the phone -- only the search.

The Third Party Doctrine is in play here, what with this information being handed over to a service provider in exchange for phone service. The opinion quotes Orin Kerr in support of its Third Party Doctrine assertions.

Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment “protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.” Stephenson, supra, 171 Ga. App. at 939 (citation and punctuation omitted). See generally Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (II) (A) (2010) (originating telephone number is non-content information analogous to return address on envelope).

But that applies only to phone call routing info, not the user's personal information. It's a good thing this citation isn't a direct comparison because Orin Kerr doesn't agree with the court's decision on the search issue.

Held: Calling 911 from a phone is not a “search” because it only obtains non-content information about the phone that is not protected under Smith v. Maryland.

I don’t think that reasoning works, as it’s mixing up two different questions: (1) whether calling from the phone is a search of the phone, and (2) whether, once the call is placed, receiving the number dialed at 911 is a search of the number. I think calling 911 is a search because of (1), not because of (2). Calling 911 pushes out the number from the phone, and I think that forced revealing of the number should count as a search of the phone.

The decision's implications go much further than this one-off case where an abandoned phone was discovered and "forced" to reveal user info by a law enforcement officer. Think Stingrays. From the opinion:

The fact that it was a law enforcement officer, rather than Hill, who placed a call from the phone does not change our conclusion that the information obtained was not subject to Fourth Amendment protection. Cases from other jurisdictions illustrate this point. In United States v. Skinner, 690 F3d 772, 777-778 (II) (A) (6th Cir. 2012), for example, the United States Court of Appeals for the Sixth Circuit held that law enforcement agents could take action to cause a cellular phone to emit information from which they could track it without running afoul of the Fourth Amendment, because the defendant did not have a reasonable expectation of privacy in the location data emitted from the phone.

If this isn't a search, then the use of an IMSI catcher isn't a search, even though it involves the manipulation of a person's phone by law enforcement to obtain information otherwise not immediately obtainable.

As for the Riley decision, the court decides use of the phone is not the same as accessing the phone's contents.

Here, in contrast to Riley, the officer did not access any files on Hill’s phone, which was protected by a passcode. He “did not attempt to retrieve any information from within the phone,” United States v. Lawing, 703 F3d 229, 238 (II) (A) (ii) (4th Cir. 2012), but instead used the phone in a manner that caused it to send Hill’s telephone number to a third party, the 911 dispatcher. We do not construe Riley to prohibit an officer in lawful possession of a cellular phone from placing a call on that phone in an attempt to obtain identifying information about its owner. Moreover, we do not construe Riley to recognize a legitimate expectation of privacy in identifying, non-content information such as the person’s own phone number, address, birthdate, simply because that information was associated with a cellular phone account rather than a landline phone account or a piece of physical mail.

While historical cell site location info is generally considered to be free of expectations of privacy under the Third Party Doctrine, real-time access of this same information is still under discussion in several courts. Making the argument that law enforcement manipulation of a person's cell phone to extract information not otherwise immediately obtainable suggests that this particular court would look favorably on the use of Stingray devices to locate cell phones. After all, the phone's location is a third-party record, even though it's not a third-party record that isn't normally obtainable as it's being generated.

It's a limited ruling from a state appeals court, but it still shows advances in surveillance tech will be granted a lot of leeway by judges because of a decision nearly four decades old at this point (Smith v. Maryland, 1979). Had the court come to the conclusion it was a search, it wouldn't have saved Hill (because he abandoned his phone), but it at least would have recognized it's one thing to obtain third-party records from a third party. It's quite another when the government uses a closed loop to obtain the same info.

Filed Under: 4th amendment, calling 911, georgia, phones, search

Paris Court Says Search Engines Don't Need To Block Torrent Searches

from the good-ruling dept

Copyright rulings in France have occasionally been a complete disaster in the past, so it's nice to see the High Court of Paris recognize that Google and Microsoft cannot be forced to block any searches that include the word "torrent." The two separate lawsuits were brought by SNEP, which could be seen as the French version of the RIAA. The organization argued that since the law allowed "all appropriate measures" to be used to block infringement, it could demand that search engines block any searches that include the word torrent. The court wasn't buying it, noting correctly that not all torrents are infringing, and such a rule would be way too broad:

“SNEP’s requests are general, and pertain not to a specific site but to all websites accessible through the stated methods, without consideration for identifying or even determining the site’s content, on the premise that the term ‘Torrent’ is necessarily associated with infringing content,” the Court writes in its order.

More specifically, the court notes that the word “torrent” has many legitimate uses, as does the BitTorrent protocol, which is a neutral communication technology. This means that blocking everything “torrent” related is likely to censor legal content as well.

“Yet [torrent] is primarily a common noun, with a meaning in French and in English; it also refers to a neutral communication protocol developed by the company Bittorrent that enables access to lawfully downloaded files.

“The requested measures are thus tantamount to general monitoring and may block access to lawful websites,” the High Court order adds.

That was in the ruling in the case against Microsoft. In the case against Google, SNEP lost on more of a procedural technicality. Google pointed out that SNEP brought the case in the name of just three artists, rather than itself, and the court more or less agreed that SNEP couldn't bring a case on behalf of just those artists. Still, the clear ruling on the Microsoft case suggests that SNEP wouldn't have had any more luck against Google if it had filed the case in the correct procedural way.

Filed Under: censorship, copyright, france, paris, search, search results, torrent
Companies: google, microsoft, snep

Google Issues Its Latest 'Stop Blaming Us For Piracy' Report

from the target-on-its-back dept

Google is big and successful. Some legacy entertainment companies have been struggling. For whatever reason, many of those companies have decided that Google's success must be the reason for their downfall, and they've been blaming Google ever since. It's pervasive and it's deeply ingrained. A few years ago, I ended up at a dinner with a recording industry exec (and RIAA board member) who was so absolutely positive that Google was deliberately trying to destroy his business that it was reaching delusional levels. Of course, these legacy players have been banging on this drum for so long that they've convinced some others that it must be true, including some content creators and politicians. They all believe that the correlation of Google's success and their own struggles must be about Google, and not their own failures to innovate. And their number one argument seems to be (ridiculously) that Google "profits" from piracy and therefore Google encourages piracy.

As this drumbeat has gotten louder and louder, Google has felt the need to respond. The company has, for many years, actually done plenty to try to stop piracy, rather than encourage it, and it's reached the point where Google is (stupidly, in my opinion, though perhaps politically necessary) actively appeasing the legacy industries, sometimes actively making its own search product worse. And, of course, as you would expect, these efforts are never enough for those industries. So now Google has taken to putting out a semi-regular report on how it fights piracy.

Today, Google came out with its latest such report which again shows that Google goes much, much, much further than the law requires -- and even much further than many are demanding the company already do. The headline pointer, which will get all the attention, is that YouTube's ContentID, by itself, has paid out over $2 billion. For some time now, Google has said that it's paid out over $3 billion to artists, but recent recording industry attack dogs have honed in on the fact that Google never broke out how much of the $3 billion was from ContentID. Now they're breaking it out somewhat -- noting $3 billion to the music industry and $2 billion from ContentID alone. The company also notes that over 98% of copyright management on Youtube is now via ContentID, rather than through DMCA takedown notices.

Of course, whether or not you think this is a good thing may depend heavily on your perspective. I appreciate that ContentID has created a new business model, but of course, we've seen how badly it performs in some situations leading to censorship or trollish behavior where some are using it to claim the revenue of other individuals.

The report also takes on the silly myth that Google likes to drive searchers to pirated information. They point out that the company has used the DMCA notices it receives as a signal to demote certain sites in search, and then points out that almost no one does the kinds of queries that still pop up infringing results (and it notes in a footnote that the examples it's using are ones that have been called out publicly by the RIAA and its friends):

Nevertheless, some critics paint a misleading picture by focusing on the results for rare, “long tail” queries, adding terms like “watch” or “free” or “download” to a movie title or performer’s name. While the search results for these vanishingly rare queries can include potentially problematic links, it is important to consider how rare those queries are. Look at the relative frequency of these Google searches in 2015:

“Star Wars The Force Awakens” searched 402× more often than “Watch Star Wars The Force Awakens”

“Taylor Swift” searched 4534x more often than “Taylor Swift download”

“PSY Gangnam Style” searched 104× more often than “PSY Gangnam Style download”

“Mad Max” searched 836× more often than “Mad Max stream”

“Pixels” searched 240× more often than “Watch Pixels”

And then there's this: Google is obviously far from perfect, and as I've said in the past (and above!) I think the company goes way too far in trying to appease an industry that is placing a ton of misplaced blame on Google for its own failures to innovate and change with the times. But because so many people seem to be accepting the myths of the legacy industries, now Google feels the need to go even further and release these "guys, we're doing way more than any law has ever required" reports.

And while I haven't seen it yet, I can almost guarantee that the RIAA, MPAA and its various friendly groups will be rushing out press releases attacking this as "not enough." Because it's never enough when you can blame the more successful company for your own failures.

Filed Under: blame, contentid, copyright, jealous, piracy, search
Companies: google, youtube

Court Refuses To Uphold Evidence Seized During A Completely Bogus Traffic Stop

from the law-enforcement-dashcam-key-witness-against-law-enforcement dept

Very rarely does anyone want to believe a defendant in a criminal prosecution. They have the most to lose, are often presumed guilty by all involved, and if they'd done nothing wrong, they wouldn't be here defending themselves, right? None of that is how the system is supposed to work. But that's how it often does.

Law enforcement officers, on the other hand, are often treated as unimpeachably credible, even when their recollections of events are less than accurate. Sometimes they get called out for it. Most times they don't. About the only way their dishonesty is called out if if there's another set of eyes on the scene -- like dashcams or body-worn cameras. (This, too, is far from a sure thing.)

That's what happened here. A bogus traffic stop that morphed into a drug bust began with zero traffic violations -- even though the officer performing the stop claimed at least two violations had occurred. (via FourthAmendment.com)

Victor Dominguez-Fernand was pulled over for allegedly driving with his headlights off and following too close to the vehicle ahead. Unfortunately for Deputy Nicholas Ernestes, his dashcam showed both claimed violations were bogus.

First off, the supposed violation of "driving with headlights off" was only a presumed violation. Deputy Ernestes testified that he "believed" headlights were required because of the weather conditions (overcast and raining) but couldn't actually assert that such a requirement exists.

This, of course, is hardly a fatal error. The Supreme Court (along with dozens of lower courts) have made it clear law enforcement isn't required to know the laws it's enforcing. All they have to do is believe a violation has occurred to perform a traffic stop.

Not that it mattered. When Ernestes turned on his lights to pull over Fernand, his dashcam kicked in, and it showed something completely different [PDF].

The available dash-cam video shows that the taillights on Mr. Dominguez-Fernand’s car were on for at least 30 seconds before Deputy Ernstes turned on his emergency lights.

If the taillights are on, the headlights are on. Ernestes also claimed Fernand was following too close to the vehicle ahead of him, even though Ernestes was unable to remember many details about the vehicle Fernand was supposedly tailgating.

Deputy Ernstes attested in an affidavit submitted before the hearing that he “pull[ed] his vehicle even with the black Mitsubishi” to confirm its speed and observed at that time that it was allegedly following the vehicle in front of it too closely. Deputy Ernstes does not remember what type of vehicle was in front of Mr. Dominguez-Fernand’s car. Deputy Ernstes testified that he used a method that involved counting the “skip lines” on the roadway to determine that Mr. Dominguez-Fernand’s car was allegedly closer to the vehicle in front of it than the “two-second rule” established in the Indiana Driving Manual. Deputy Ernstes testified that based on that calculation, he believed Mr. Dominguez-Fernand had violated Indiana Code § 9-21-8-14. Deputy Ernstes testified that he only saw the alleged traffic infraction for a few seconds.

Again, the dashcam saw it differently.

It shows that it was raining and that a box truck was in the distance in front of Mr. Dominguez-Fernand’s car.

The defendant recalled the incident in a way that more agrees with the dashcam footage than the deputy's affidavit and testimony.

Mr. Dominguez-Fernand had been driving for several hours and it had been raining heavily for ten to fifteen minutes before he was stopped by Deputy Ernstes. Mr. Dominguez-Fernand specifically remembered that the headlights on the car were turned on because he had been continuously driving through the night and the car’s dashboard was lit up for visibility. He emphasized that he drove a delivery truck for a living and that he was intentionally driving slower than the speed limit because of the rain. He maintained a five or six second distance between his car and the box truck in front of him because it was spraying a lot of water up because of the rain. Indeed, the dash-cam video shows that the rain caused trucks traveling on Interstate 70 to spray water behind them for a considerable distance.

Deputy Ernestes claimed the vehicle's lights were off when the defendant passed him, something the court finds dubious because this supposed reason for pulling over the defendant was never mentioned once during the course of the stop. Further, state law doesn't require the use of headlights in these weather conditions -- only if vehicles cannot be clearly seen within 500 feet. Ernestes' own testimony stated he could see cars approaching "up to one mile away" and they all had their headlights on. 5,280 feet being ten times the length required by statute means headlights or not, there was no violation.

The camera also showed Fernand was a safe distance behind the vehicle in front of him. So, despite Fernand's eventual consent to a search of the vehicle (which resulted in the discovery of amphetamines), the initial stop was so bogus the court cannot allow the subsequent search to stand.

The court also points out that Ernestes could have bolstered his claims that the violations occurred before the dashcam's automatic recording by simply using the recording device in his vehicle to, you know, record evidence.

The impact of these inconsistencies might have been lessened if Deputy Ernstes had manually turned on his dash-cam to record the traffic violation he claims to have seen. While he admits he could have done so, he did not, depriving the record of significant, reliable evidence.

As to the inconsistencies, they were more than just the fuzziness one would expect from a law enforcement who performs dozens of inconsequential traffic stops every shift. The inconsistencies stemmed from Ernestes' initial statements and paperwork.

Deputy Ernstes testified that he could not remember anything about the type of vehicle Mr. Dominguez-Fernand was allegedly too closely following. Deputy Ernstes’ affidavit, however, attests that he pulled alongside Mr. Dominguez-Fernand’s car to observe its speed and that it was allegedly too closely following the preceding vehicle, which would have given him a clear view of the large box truck Mr. Dominguez-Fernand was following. The imprecise nature of Deputy Ernstes’ recollection is further underscored by the Court’s previous conclusion that Deputy Ernstes was incorrect about the headlights on Mr. Dominguez-Fernand’s car being turned off, as well as Deputy Ernstes’ testimony at the hearing that he could only see one person in Mr. Dominguez-Fernand’s car, despite the fact that his affidavit states he could see “that two males were located inside of the vehicle” when he pulled alongside it.

And away goes the evidence, which is the only thing supporting the government's charges.

The Court has already held that the Government has not met its burden to show by a preponderance of the evidence that Deputy Ernstes had probable cause to stop Mr. Dominguez-Fernand’s car. Thus, the exclusionary rule forbids use of the unlawfully obtained evidence at trial. Since the Government has not argued that an exception to the exclusionary rule applies in these circumstances, and it is the Government’s burden to do so, the Court concludes that the drugs discovered in Mr. Dominguez-Fernand’s car must be suppressed.

Surprisingly, the government never asked for consideration under the "good faith exception," nor did the court decide to entertain this idea on its own. That this resulted in tossed evidence even with the Heien decision in place suggests law enforcement can still manage to go too far when cooking up bogus reasons to stop drivers.

Filed Under: 4th amendment, search, traffic stop, victor dominguez-fernand

Baidu Pushes Back On Chinese Gov't Investigation By Freeing Up Images Related To Tiananmen Square

from the power-play dept

So we've talked a lot about the Great Firewall of China and how it works. Contrary to what many believe, it's not just a giant government bureaucracy blacklisting content, but a huge ecosystem that partially relies on unpredictability and the lack of intermediary liability protections online. That is, rather than directly say "this and that are blocked," the Chinese government will often just let companies know when they've failed to properly block content and threaten them with serious consequences. Because of this, you get a culture of overblocking, to avoid running afoul of the demands. This is one of the reasons why we believe that strong intermediary liability protections are so important. Without them, you're basically begging for widespread censorship to avoid legal consequences.

And, in many ways, it works quite well in China. Yes, sophisticated users know how to use VPNs and proxies and to get around the blocks, but many people do not. But something interesting is happening in China right now, as one of the largest and most successful internet companies there appears to be challenging the censorship regime. First, it's important to recognize that in China, one subject that is absolutely, without question, censored, is anything relating to the Tiananmen Square protests and crackdown of 1989. On the internet in China, it's as if the event never happened. People have tried workarounds, using euphemisms and wordplay, but eventually those get disappeared down the memory hole too. There was even that time the censors banned the term "big yellow duck," after people replaced the famous tanks in the "tank man" photo with giant rubber ducks: But something odd happened yesterday. Suddenly, on Baidu (which is like the Google of China), searches related to the tank man and other symbols of the Tiananmen Square protests were showing up on Baidu. Clay Shirky, who has been living in China recently, posted details on his Twitter feed, which is well worth reading:

China's https://t.co/G1q2OYdfSV unblocks search results for 虫堂臂挡车 (known to us as tank man, from Tiananmen massacre) pic.twitter.com/DU2X3RZnWv

— Clay Shirky (@cshirky) May 6, 2016

It appears that this is something of a reaction to the Chinese government announcing that it will be investigating Baidu's advertising practices, following the death of a young man from cancer, who had kicked up quite a lot of attention after he had tried an "experimental" cancer treatment he discovered via an ad on Baidu. When it didn't work, he blamed Baidu for allowing the ad, and when he passed away there was a public outcry. In response, the government announced plans to investigate Baidu's ad practices. It appears that Baidu loosening the padlocks on Tiananmen Square might be a response to that, which lots of people seem to think is playing with a fire in a manner that will almost certainly leave the company burned.

This is a direct & blatant refusal to play by the rules. Baidu has a lot of power behind the scenes, but even then, this looks like treason.

— Clay Shirky (@cshirky) May 6, 2016

This will probably end soon - hearing from friends in Beijing that some searches are censored again - but it will cause months of trouble.

— Clay Shirky (@cshirky) May 6, 2016

Young, educated Chinese are so used to cat and mouse censorship that when they see something like this, they screenshot immediately.

— Clay Shirky (@cshirky) May 6, 2016

At a conservative guess, there've been a billion screenshots taken of various banned images, jokes, and memes during the last day.

— Clay Shirky (@cshirky) May 6, 2016

Shirky has a lot more to say, including some further speculation that perhaps there was growing tension from last year, after the Chinese government basically made use of Baidu to fire a denial of service at GitHub. The fact that the packets came via Baidu was, as Shirky notes, a PR blackeye for Baidu at a time when the company wants to expand beyond China. Shirky also deleted a tweet that originally said "this has to backfire," noting how central media and internet censorship is to the current regime.

The brief dropping of the censorship appears to be (again, Shirky notes no one knows for sure -- but many people seem to believe) Baidu trying to let the Chinese government know that it has become powerful enough to make trouble for the government, so it's not just a one way street in terms of who holds the power. Of course, that seems like an incredibly risky move to make if you really don't have enough power to stand up to the government.

We may never know all the details of what's going on, but it's a brief, if fascinating, view into some of what's going on in China today with the Great Firewall, and the increasing power of some of its most successful companies. But it's also a reminder of why we should be so thankful for strong intermediary liability protections in the US, and how not having such protections is a sure path to censorship.

Filed Under: ads, censorship, china, clay shirky, great firewall, intermediary liability, investigations, power, search, tank man
Companies: baidu