Should You Have Any 4th Amendment Rights In An Airport?

from the seems-kind-of-important dept

For many years, we've written about the craziness of the so-called "border search exception" to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn't apply at the border, and thus it's allowed to search people at the border. The initial reasoning was -- more or less -- that at the border, you're not yet in the country, and thus the 4th Amendment doesn't apply yet. But that's expanded over time -- especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that's within 100 miles of the border could be "close enough" to count as a "border search," making the "border search exception" apply. That's... messed up.

There's now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a "border search exception" -- but here's the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none.

Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that's crazy. Unfortunately, the district court accepted this reasoning -- and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn't be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes:

The District Court erred in denying Mr. Kolsuz's Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant's smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport--the equivalent of a border--does not change this case from one that fits squarely within Riley v. California... to one that is suddenly part of a narrow exception of cases justified by the sovereign's customs enforcement rules.

The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it.

Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of "every piece of mail... every picture... [and] every book" a person has.... These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview.

Of course, many of us still find the very idea of a "border search exception" to be nonsensical in the first place. But if it's there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We're proud to sign onto this brief, and hope the court listens.

Filed Under: 4th amendment, airports, border search, border search exception, hamza kolsuz, privacy, warrants

Federal Bill Introduced To Add A Warrant Requirement To Stingray Deployment

from the reclaiming-the-Fourth,-bit-by-bit dept

House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.

A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as "stingrays" that sweep up information about the movements of innocent Americans while tracking suspected criminals.

“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. "Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times."

What the bill would do is codify the DOJ's "Stingray Best Practices" policy, which implemented a warrant requirement for cell site simulator deployment -- albeit one that wasn't really a requirement because it wasn't statutorily-required. This would be the statutory requirement the DOJ's better-late-than-never approach to constitutionality was missing.

But the bill doesn't limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn't covered by the Fourth Amendment.

The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone's movements.

This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment's confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don't like the answer/non-answer they're presented with.

The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.

The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today's connected, always-online world. But this is not the sort of thing it's ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans' privacy. This bill, if passed, wouldn't necessarily fix what's wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.

Filed Under: 4th amendment, imsi catcher, jason chaffetz, ron wyden, stingray, warrants

Iowa Appeals Court Doubles Down On Curbing Police Abuse Of 'Inventory Search' Warrant Exceptions

from the told-you-twice dept

As we're well aware, the minute you get behind the wheel of your vehicle, your Fourth Amendment protections take a nosedive. Having a vehicle on a public street makes everything viewed through the windows a perfectly acceptable warrantless search. Add to that the number of traffic violations -- real or imagined -- that can act as a pretense for an investigative stop, and driving becomes a warrantless search waiting to happen.

While the Supreme Court did scale back some extracurricular law enforcement exploration with its Rodriguez decision, all it takes is an unconfirmable "smells like marijuana" or some other indicator of suspicion (talking too much, talking too little, making eye contact, not making eye contact, interstate travel, etc.) to turn a stop that shouldn't have been prolonged past the point of issuing a ticket into a full-fledged search of a vehicle.

Then there's this wrinkle. If you're arrested or otherwise told to leave your vehicle, law enforcement is allowed to take the vehicle into custody (so to speak). At some point, the officer having the vehicle moved performs an inventory of the vehicle's contents. This is to make sure that when the vehicle is returned to the driver, there's no dispute as to whether or not your Creedence tapes and "business papers" went missing while in the hands of law enforcement.

What it's not supposed to be is a warrantless search. But because law enforcement is required to perform inventories of everything of value in the car, it often becomes one. And once something is inevitably discovered through the course of an inventory, it becomes very difficult to have the evidence thrown out. After all, law enforcement is doing what it's supposed to do. Too bad the seized vehicle had so much contraband in it.

What can happen, however, is courts finding the inventory-taking process to be pretextual in and of itself. If there was no reason to impound the vehicle -- or officers appeared to be clearly motivated by something other than providing a list of contained items, the "inventory exception" can be overcome. FourthAmendment.com compiles two recent judicial unicorns into one handy post. Both come from the same state appeals court (Iowa), which may suggest a history of law enforcement abuse of this exception is finally being addressed.

In the first case [PDF], the defendant was approached by a police officer who said he was going to ticket him for improper parking. Since the defendant was unable to produce proof of insurance, this escalated to the officer impounding the vehicle. The defendant refused to consent to a search of the vehicle. The officer said he was just going to inventory the car and proceeded to do so. A gun and bullets were found during the inventory. The defendant challenged the evidence as a Fourth Amendment violation.

The court agreed with the defendant's argument -- seizing on the same legal technicality. Under state law, if a vehicle is to be seized for lack of insurance, the officer must first remove the license plates and registration before having the vehicle moved. This officer never took that step. As the court sees it, not following this step indicates the inventory search was pretextual. It was just a thinly-disguised investigative -- and warrantless -- search.

A plain reading of the statute requires the citation for failure to produce proof of insurance be issued and license plates and registration receipt be removed before the vehicle is impounded. It is unclear from our record as to whether or not Officer Carter issued Juarez-Martinez a citation for failure to provide proof of insurance before impounding the car. In any event, it is clear that Officer Carter failed to remove the license plates and registration receipt before impounding the car. Because the officer overlooked the legislatively imposed requirements for the impoundment, it appears he was motivated solely by an investigatory purpose. See Huisman, 544 N.W.2d at 439. We therefore conclude the impoundment was invalid and, accordingly, the inventory search was invalid.

The other case [PDF] is a little more complex, but it again rests on the actions taken by officers that appear to conflict with their stated motivations. A vehicle which police suspected contained stolen power tools was searched without a warrant. At one point, the suspect's son arrived and offered to move the vehicle (rather than have it impounded) but was denied permission to do so.

Law enforcement officers searched the vehicle and found methamphetamines in a sunglasses case. At that point the search stopped. While officers did have a warrant to search the premises, they did not have one for the vehicle that arrived on the premises after the search had already commenced.

The motion to suppress is granted by the court, mainly because the officers involved couldn't come up with a consistent narrative.

After Deputy Davis left the scene with Baudler, Officer Halverson and Assistant Chief Miller searched the truck. The officers found a glass pipe and methamphetamine inside a sunglasses case, and the search was stopped. The officers offered differing reasons for the search. Deputy Davis testified when he left the property it was his intention that the truck would be impounded.

In contrast, in his incident report Officer Halverson stated they “were requested by Deputy Davis to search the vehicle because he stated the plates did not come back to the proper truck.” At the hearing on the motion to suppress, Officer Halverson testified he searched the vehicle because Deputy Davis requested the officers to do so. He stated after they discovered the methamphetamine they contacted Deputy Davis and informed him of what they had found, and the search was stopped. Officer Halverson testified it was his understanding the truck was going to be impounded.

Halverson agrees with Davis on the "impoundment" part but not so much as to whether or not Davis told them to search the truck. Davis didn't say he gave that instruction to the officers on the scene. The other party (Asst. Chief Miller) involved in the search had yet another version of the events.

Deputy Davis told me he needed [the truck] searched incident to arrest. At that point the truck was locked and I told [Baudler’s son] that we needed to look through the vehicle before he took it. . . . After [Deputy Davis] told us—asked us to search the vehicle incident to arrest, [Baudler’s son] unlocked it for me. I stood in the door, kind of looked in the vehicle and I called Officer Halverson over to assist me with the search. Almost within seconds he found some methamphetamine and a pipe . . . . At that point I told Officer Halverson that I saw numerous tools, Milwaukee tools, plus like a collection of vehicle titles. I told him about that. Then I went back to my car, called Deputy Davis and told him we found what we believed was methamphetamine. He said we were going to impound the vehicle, so we stopped the search.

First off, the suspicion the officers had that the tools they saw were stolen came from almost nowhere. The warrant they had made no mention of stolen tools and the CI tip cited in the affidavit mentioned stolen things going to a scrapyard, which would suggest a completely different kind of stolen good. As the court points out, probable cause is a pretty low bar and yet the officers were unable to surmount it. That eliminates the good faith exception and nothing about the search of the premises suggested there was anything approaching "exigent" in the circumstances.

So, the state tried to use the vehicle inventory exception. There's nothing in that for these officers either. The controlling law enforcement agency had never bothered to write up procedures for inventory searches. All they had were verbal "guidelines" that were followed inconsistently by deputies.

Officer Halverson testified the Winterset Police Department also has an unwritten inventory policy. Officer Halverson stated the inventory policy is that:

"[a]nytime we arrest someone and they have a vehicle there, we impound the vehicle. We do a complete inventory of the interior contents of the vehicle and the condition of the exterior of the vehicle and then it is—we stay with it until a tow company comes and then we follow it to the police department where it gets held."

However, on cross-examination, Officer Halverson admitted he has arrested individuals who are driving and let the passenger take the vehicle home, has allowed people to keep their vehicles in their driveway after being arrested, and has allowed a vehicle to remain at a friend’s house after an arrest with the consent of the homeowner.

By not implementing a policy covering every step of the inventory/impoundment process, neither of the two involved agencies can claim the search was merely an inventory of a to-be-seized vehicle. And the lack of set rules is a big constitutional problem, as the court points out.

[H]ere, the vague inventory “policies” related by Deputy Davis and Officer Halverson grant officers unlimited discretion to arbitrarily conduct searches. Basically, the officers could choose to impound any vehicle seized.

This lack of clear policies could be used as a Get Out of Suppression Hearings FREE card. Could be. The court here won't allow it.

We conclude the conflicting testimony of the officers, as well as the timeline of events surrounding the search of the truck, indicate the officers searched the truck for the sole purpose of investigating for suspected criminal activity beyond the scope of the search warrant. Thus, we find the inventory exception does not apply to overcome the Fourth Amendment warrant requirement due to the vague impound policies and improper motive.

Also working against the state: the fact that the search stopped when contraband was found, rather than continued until the contents were fully-inventoried and the fact that there was no probable cause to seize the vehicle and remove it from the property. A vehicle parked on private property isn't going to create a danger for other drivers or impede traffic, so there's no justification for its seizure without the further development of probable cause. Probable cause didn't exist until after the questionable "inventory search," and by then, it was far too late.

Filed Under: 4th amendment, inventory searches, iowa, law enforcement, police, warrants

Congress Tries Once Again To Require Warrants To Search Emails

from the will-it-actually-happen? dept

The efforts to reform ECPA -- the Electronic Communications and Privacy Act -- have been going on for basically two decades at this point. The law, which was passed in 1986, has a whole bunch of problems, with the biggest one (as we've discussed dozens of times) being that it considers any email that's been on a server for more than 180 days "abandoned," and thus freely searchable by law enforcement without a warrant. That's because there was no concept of cloud computing back in 1986. People who got email "retrieved" those emails off of a server and downloaded them to local storage. Many in Congress have been trying to fix this for so, so, so many years. And it always gets blocked. The IRS and the SEC have both been fairly proactive in trying to block ECPA reform bills that will require a warrant (funny: I thought it was the 4th Amendment that made such a warrant necessary, but, silly me, no one cares about the 4th Amendment any more).

Last year, a plan to fix ECPA, called the Email Privacy Act, with an astounding 315 co-sponsors, passed the House unanimously. As we noted at the time, this is fairly incredible. In these contentious times -- especially on issues related to surveillance and law enforcement -- to have a unanimous vote on a law that says "get a warrant" if you want access to emails, is quite incredible. But, of course, even with that much support on that side of Congress, the Senate has a way of killing ECPA reform each and every year. Last year, a few Senators -- including Jeff Sessions, who is likely to be our next Attorney General -- tried to bury it with ridiculous amendments that would expand surveillance.

On Monday, the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. Stranger things have happened, of course, but it still seems like a longshot that real ECPA reform will become law this year. It's great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. I disagree with many of the folks on that list on a number of other issues we cover, but the fact that they're willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won't try to muck it up again.

Filed Under: 4th amendment, ecpa, ecpa reform, email, email privacy act, irs, kevin yoder, sec, warrants

Michigan Lawmakers Looking To Amend State Constitution To Add Protections For Electronic Data

from the post-Snowden-lawmaking dept

A ballot measure introduced by a bipartisan group of Michigan legislators is sure to encounter some heavy resistance on its trip through the lawmaking machinery. The proposal amends the state's constitution to add a warrant requirement to data that law enforcement is used to obtaining without one.

House Joint Resolution C (HJRC) was introduced by Rep. Jim Runestad (R-White Lake) along with 11 bipartisan co-sponsors. If approved, voters would have the opportunity to alter Article 1, Section 11 of the Michigan state constitution in the following manner:

The person, houses, papers, and possessions, and electronic data and communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The phrase "electronic data" covers a lot of things normally considered to be "third-party records" and currently given little to no protection under the Fourth Amendment. This amendment would establish an expectation of privacy in electronic communications and data -- at least under the state's constitution.

If passed, courts will have to consider the implications of the state's more stringent privacy protections when dealing with the admissibility of electronic data/communications. This means state law enforcement partnerships with federal agencies could result in unprosecutable charges if any evidence is derived from the warrantless acquisition of protected data and communications. In practical terms, this may not change much, as the feds will just bring the case to federal court in order to (hopefully) bypass the state's more restrictive constitution.

But, as the Tenth Amendment Center points out, if the new law passes, it will discourage local law enforcement from helping themselves to data harvested by federal surveillance programs.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage the amendment could potentially hinder federal surveillance programs that depend on state cooperation and information gathering.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes. Requiring warrants to gather such data would undoubtedly limit the amount of information collected by state and local law enforcement. Information that doesn’t exist cannot be shared with the feds.

If "electronic data" is defined in such a way to include data gathered en masse by electronics, this would institute a warrant requirement for ALPR deployment and would make pen register orders demanding historical cell site data a thing of the past.

The constitutional amendment has a long way to go before it's ratified. Hopefully, it will make its way through the process mostly intact.

Filed Under: 4th amendment, data, electronic data, law enforcement, michigan, privacy, warrants

FBI Continues To Demand Far More Info Than It's Supposed To With Its National Security Letters

from the YOU-CAN-TRUST-US dept

Mike covered Twitter's release of two FBI NSLs it had received in the last few years -- more evidence that the USA Freedom Act, if nothing else, has made review of NSL gag orders more timely and the orders themselves more easily challenged.

Not that there hasn't been significant pushback from Twitter along the way. The social media platform sued the government in 2014, claiming that the de facto government-imposed secrecy was a violation of the company's First Amendment rights.

It can discuss two of the NSLs it received now, and it's revealing that the FBI is still asking for far more than it should when issuing these.

Each of the two new orders, known as national security letters (NSLs), specifically request a type of data known as electronic communication transaction records, which can include some email header data and browsing history, among other information.

In doing so, the orders bolster the belief among privacy advocates that the FBI has routinely used NSLs to seek internet records beyond the limitations set down in a 2008 Justice Department legal memo, which concluded such orders should be constrained to phone billing records.

Twitter's counsel says it only hands out what the DOJ's legal guidance says it's supposed to hand out. The FBI, on the other hand, says nothing, which is pretty much how it handles all requests for comments on NSLs/ignoring DOJ legal guidance. What the agency has said -- not directly but via its oversight -- is that it doesn't believe the DOJ can interpret NSL statutes for it.

An FBI inspector general report from 2014 indicated that it disagreed with the memo's guidance.

The DOJ's interpretation was issued nine years ago. To this day, the FBI continues to ask for more than the DOJ says it can. And the DOJ doesn't appear to be stepping in to iron out the disagreement, much less reiterate its "phone billing only" policy.

We've seen overbroad requests before, starting with the first NSL ever released publicly. One of the NSLs sent to Yahoo asked for all of the following:

• Subscriber name and related subscriber information
• Account number(s)
• Date the account opened or closed
• Physical and or postal addresses associated with the account
• Subscriber day/evening telephone numbers
• Screen names or other on-line names associated with the account
• All billing and method of payment related to the account including alternative billed numbers or calling cards
• All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and/or user names identified by you as belonging to the targeted account in this letter
• Internet Protocol (IP) addresses assigned to this account and related e-mail accounts
• Uniform Resource Locator (URL) assigned to the account
• Plain old telephone(s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account
• The names of any and all upstream and providers facilitating this account's communications

If the DOJ isn't going to do anything about this, the FBI will continue to issue thousands of letters a year asking for more than it should and hoping recipients aren't aware they don't have to hand all of this information over. It's also hoping recipients don't know they're allowed to challenge the accompanying gag orders -- or at least it was until the Internet Archive (which isn't the proper target for NSLs to begin with) publicly pointed out the FBI was still using outdated boilerplate in its demand letters.

This is, unfortunately, how law enforcement agencies tend to handle things: blow past legal guidance and civil liberties until forced to do otherwise -- whether by a court or a policy change. And when forced to do so, engage in foot-dragging and inconsistent internal communications so as to lessen the "damage" of playing by the rules. The FBI may be at the top of the law enforcement food chain, but it often operates as though it's heading up Hazzard County.

Filed Under: 4th amendment, fbi, national security letters, nsls, warrants
Companies: twitter

The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity

from the maybe-these-are-the-'smart-people'-who-can-fix-Comey's-encryption-&# dept

Law enforcement has a number of informants working for it and the companies that already pay their paychecks, like UPS, for example. It also has a number of government employees working for the TSA, keeping their eyes peeled for "suspicious" amounts of cash it can swoop in and seize.

Unsurprisingly, the FBI also has a number of paid informants. Some of these informants apparently work at Best Buy -- Geek Squad by day, government informants by… well, also by day.

According to court records, Geek Squad technician John "Trey" Westphal, an FBI informant, reported he accidentally located on Rettenmaier's computer an image of "a fully nude, white prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck." Westphal notified his boss, Justin Meade, also an FBI informant, who alerted colleague Randall Ratliff, another FBI informant at Best Buy, as well as the FBI. Claiming the image met the definition of child pornography and was tied to a series of illicit pictures known as the "Jenny" shots, agent Tracey Riley seized the hard drive.

Not necessarily a problem, considering companies performing computer/electronic device repair are legally required to report discovered child porn to law enforcement. The difference here is the paycheck. This Geek Squad member had been paid $500 for digging around in customers' computers and reporting his findings to the FBI. That changes the motivation from legal obligation to a chance to earn extra cash by digging around in files not essential to the repair work at hand.

More of a problem is the FBI's tactics. While it possibly could have simply pointed to the legal obligation Best Buy has to report discovered child porn, it proactively destroyed this argument by apparently trying to cover up the origin of its investigation, as well as a couple of warrantless searches.

Setting aside the issue of whether the search of Rettenmaier's computer constituted an illegal search by private individuals acting as government agents, the FBI undertook a series of dishonest measures in hopes of building a case, according to James D. Riddet, Rettenmaier's San Clemente-based defense attorney. Riddet says agents conducted two additional searches of the computer without obtaining necessary warrants, lied to trick a federal magistrate judge into authorizing a search warrant, then tried to cover up their misdeeds by initially hiding records.

The "private search" issue is mentioned briefly in OC Weekly's report, but should be examined more closely. Private searches are acceptable, but the introduction of cash payments, as well as the FBI having an official liaison with Best Buy suggests the searches aren't really "private." Instead, the FBI appears to be using private searches to route around warrant requirements. That's not permissible and even the FBI's belief that going after the "worst of worst" isn't going to be enough to salvage these warrantless searches.

As Andrew Fleischman points out at Fault Lines, the government's spin on the paid "private search" issue -- that it's "wild speculation" the Best Buy employee was acting as a paid informant when he discovered the child porn -- doesn't hold up if the situation is reversed. AUSA Anthony Brown's defensive statement is nothing more than the noise of a double standard being erected.

Flipping the script for a minute, would an AUSA say it was “wild speculation” that a man was a drug dealer when phone records showed he regularly contacted a distributor, he was listed as a drug dealer in a special book of drug dealers, and he had received $500.00 for drugs? Sorry to break it to you, Mr. Brown, but once you start getting paid for something, it’s tough to argue you’re just doing it for the love of the game.

In addition to these problems, the file discovered by the Best Buy tech was in unallocated space… something that points to almost nothing, legally-speaking.

[I]n Rettenmaier's case, the alleged "Jenny" image was found on unallocated "trash" space, meaning it could only be retrieved by "carving" with costly, highly sophisticated forensics tools. In other words, it's arguable a computer's owner wouldn't know of its existence. (For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v. Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them.

This important detail was apparently glossed over in the FBI's warrant application to search Rettenmaier's home and personal devices.

In hopes of overcoming this obstacle, they performed a sleight-of-hand maneuver, according to Riddet. The agents simply didn't alert Judge Marc Goldman that the image in question had been buried in unallocated space and, thus, secured deceitful authorization for a February 2012 raid on Rettenmaier's Laguna Niguel residence.

Courts have shown an often-excessive amount of empathy for the government's "outrageous" behavior when pursuing criminals. The fact that there's child porn involved budges the needle in the government's direction, but the obstacles the FBI has placed in its own way through its deceptive behavior may prevent it from salvaging this case.

The case is already on very shaky ground, with the presiding judge questioning agents' "odd memory losses," noting several discrepancies between the FBI's reports and its testimony, and its "perplexing" opposition to turning over documents the defense has requested.

In any event, it appears the FBI has a vast network of informants -- paid or otherwise -- working for both private companies and the federal government. Considering the FBI is already the beneficiary of legal reporting requirements, this move seems ill-advised. It jeopardizes the legitimacy of the evidence, even before the FBI engages in the sort of self-sabotaging acts it appears to have done here.

Underneath it all is the perplexing and disturbing aversion to adhering to the Fourth Amendment we've seen time and time again from law enforcement agencies, both at local and federal levels. Anything that can be done to avoid seeking a warrant, and anything that creates an obfuscatory paper trail, is deployed to make sure the accused faces an even more uphill battle once they arrive in court.

Filed Under: fbi, geek squad, informants, searches, warrants
Companies: best buy

Court Says 791 Days Of Warrantless Location Tracking 'Unreasonable," But Refuses To Toss Evidence

from the 4th-Amendment-no-match-for-bad-precedent dept

A confusing and disturbing conclusion has been reached by a New York federal court. The court has decided that 791 days of location tracking with a GPS ankle bracelet is unreasonable, but somehow not worthy of evidence suppression. (via FourthAmendment.com)

Kemal Lambus -- the defendant challenging the evidence -- was granted parole, but with certain conditions. One of those was imposed a few months after his release: wearing an ankle bracelet to ensure he abided by his curfew. This was in addition to the normal amount of diminished privacy afforded parolees, which includes any number of warrantless searches by parole officers.

According to Lambus, there was nothing "voluntary" about the ankle bracelet agreement he signed. He was told that if he didn't, his parole would be revoked. The opinion [PDF] agrees, noting that the state itself refers to conditions "imposed' on Lambus -- a word that implies this was anything but consensual.

Lambus objected to the tracking device, but was told he would only have to wear it for 3-6 months. After that period had expired, Lambus repeatedly -- seven times in the following six months -- asked to have it removed. The six-month figure originally given to Lambus is backed up by the government's contract with the provider.

A record from Veritracks, the vendor that provides GPS monitoring services to NYSDOCCS, indicates that the initial GPS monitoring period was set to last only until November 8, 2013, exactly 6 months after the bracelet was attached.

The court finds the extended search -- 791 days of location tracking -- to be a violation of the Fourth Amendment. While it acknowledges that parolees have a lower expectation of privacy, their Fourth Amendment rights are not null and void until they complete their parole term.

The government argued the tracking was voluntary because Lambus agreed to wear the bracelet. As noted above, the evidence doesn't agree with this assertion. This is only one of the arguments the government made to salvage its warrantless tracking, but the court doesn't find this persuasive.

In the instant case, Lambus’s location was monitored 24 hours a day, every day from May 8, 2013 to July 8, 2015—791 days. In People v. Weaver, the New York Court of Appeals recognized that even if a person has a diminished expectation of privacy in a car traveling on a public road, continuously tracking the car through use of a GPS monitoring device was a “massive invasion of privacy” that was “inconsistent with even the slightest reasonable expectation of privacy.” Here, too, the “massive invasion of privacy” by continuous GPS surveillance vitiated Lambus’s reasonable expectation of privacy, even if such an expectation was “slight.”

The government's other arguments didn't fare any better. The purpose of the tracking device shifted from curfew violations to drug trafficking before law enforcement actually came across any evidence suggesting Lambus might be involved. The Appeals Court may have done away with strictly separating law enforcement and parole officer searches by eliminating the "stalking horse" concept from circuit case law, but the record still indicates the bracelet was left on Lambus for law enforcement purposes, rather than simply to verify his adherence with his parole conditions.

Lambus knowingly had a GPS tracking device placed on his ankle on May 8, 2013, not because he was expected of any criminal wrongdoing, but to monitor whether he was abiding by the curfew condition of his parole.This purpose shifted as federal law enforcement began using the location data to build a narcotics trafficking case against a dozen individuals. His ostensible supervisors, NYSDOCCS, took no actions against him despite, presumably, possessing evidence of criminal wrongdoing.

The last sentence shows NYSDOCCS had conceded control and surveillance of Lambus to federal and local law enforcement by that point.The court acknowledges that law enforcement and the supervision of released prisoners often contain intertwined "special needs," but those don't outweigh the massive, lengthy privacy violation that occurred here.

The more intrusive the search, the deeper the coordination between the agencies, and the more wide-ranging the web of criminal activity the search seeks to detect, the less substantial the relation of the search is to the supervision of the parolee being searched. The longer the search, the more likely it is to be “seeking contraband or evidence in aid of prosecution for criminal activity” (id. at 798) for the purpose of “uncover[ing] evidence of ordinary criminal wrongdoing.” Such a search could not be justified under the tent of the “special needs” doctrine.

The court is clearly disturbed by the government's actions.

Pinpointing exactly when Lambus’s electronic monitoring crossed the line from a supervisory search to a general law enforcement search is difficult. That the line was crossed during the two years seems clear. Parole officers must serve the community at large and the parolee, a dual responsibility requiring facilitating a parolee’s rehabilitation, if possible. Allowing a parolee to knowingly violate both the conditions of his parole and the law—for months and months on end—betrays both of the constituencies the parole officer is supposed to serve by sacrificing rehabilitation for recidivism in aid of public protection.

A state cannot use a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals. If the state wishes to search someone for the primary purpose of furthering a deliberate effort to gather evidence as part of a wide-ranging criminal prosecution, the “warrant and probable-cause requirement is not…‘impracticable’”; the search cannot be justified as a “special need,” even if the searchee is a parolee.

And yet, the court is unwilling to suppress the evidence. Because it can't find exactly where the state crossed the line from "supervisory" to "law enforcement search," it falls back on the Appeals Court's nullification of the "stalking horse" legal concept.

The unequivocal language in these two decisions—Reyes and Newton—created a binding appellate precedent that police involvement with a warrantless search of a parolee does not stamp the search as unconstitutional if it was initiated by a parole officer pursuant to a legitimate supervisory objective.

If the court can't see where to draw the line, it sucks for the defendant.

In the instant case, the search was initiated by NYSDOCCS to monitor Lambus’s adherence to his parole conditions; specifically, his curfew. This is a legitimate supervisory objective. The decision by NYSDOCCS and the federal agents to coordinate subsequently was reasonable given the Court of Appeals’s Reyes and Newton decisions. Neither the NYSDOCCS officers nor the federal law enforcement officers behaved inappropriately. There would therefore be little deterrent value in excluding the evidence. The court declines to suppress the location data evidence.

So, while the court may say the government can't use parolees as criminal activity "fly paper," its decision basically says the state can… at least up until the point the Appeals Court decides to revisit this issue.

The instant case is, however, distinct from Reyes and Newton in striking ways that may prompt the courts to revisit their jurisprudence in this area in a more generous future case.

The court also points out that not having a lawyer to represent you means not having as many rights -- yet another way the criminal justice system is broken.

If Lambus had been represented by counsel during his parole, he might have challenged NYSDOCCS’s decision to subject him to this continuing search for such a long duration. Individuals who lack counsel are left in the lurch when attempting to remedy violations of rights to their privacy. It is an unfortunate and common occurrence in our country that rights without counsel are no rights. In a case like the present one, where the invasion of privacy is so substantial and the government’s purpose is so questionable, a search is likely unreasonable and therefore unconstitutional at some point.

But for the lack of counsel…

The court does not reach that issue in the instant case.

This decision can be blamed on bad precedent, and the lower court is in no position to override it. The opinion here appears to be the "inevitable" one, rather than the one the court really wanted to hand down. As it stands now, state and federal law enforcement can piggyback on parole conditions with little to no fear of repercussion.

(Also of note: the opinion does suppress evidence obtained with an illicitly-obtained wiretap warrant -- something that was only admitted after the court questioned the discrepancy between the officer's testimony and his sworn statements in the affidavit.

In the instant case, the omission was not “inadvertent;” it was knowing. The Special Agent testified that despite having been an affiant in previous wiretap applications, he did not know that he needed to check for prior wiretap applications related to all the target interceptees. This mistake alone, despite precedent to the contrary, may have constituted mere inadvertence. But this was not the Special Agent’s only error. The HSI agent swore that “a check of federal law enforcement databases, including FBI, DEA, ATF, and HSI databases, indicate that there have been no prior application seeking Court authorization to intercept the wire, oral, or electronic communications of the Target Subjects or over the SUBJECT TELEPHONE.” Jan. 9, 2015 Aff. at ¶ 24 (emphasis added). When he swore to this statement, he knew it was false. This was not a “misunderstanding." It was perjury.

The case was filled with sketchy law enforcement behavior, but the multiple agencies involved are still able to salvage most of their evidence thanks to some questionable case law.)

Filed Under: 4th amendment, evidence, unreasonable, warrantless tracking, warrants

Court Tells Family Services Worker 'I Don't Approve Of Your Lifestyle' Isn't A Valid Warrant Exception

from the seize,-search,-judge... dept

A very interesting (read: wtf) case from Texas [PDF] -- one that resulted in criminal charges of official oppression against a Dept. of Family and Protective Services employee -- posits that there may be yet another warrant exemption: the "I don't approve of your lifestyle and/or choices" exception.

This "exception" has often been used by actual parents when searching rooms/electronic devices of their children, but private searches usually don't violate the Fourth Amendment. Searches using the same moral prerogative, when performed by agents of the state, do.

The case involves a warrantless search of a 15-year-old's cellphone by Natalie Reynolds, a Department supervisor. The Sheriff's Department located the runaway teen (referred to only as "A.K." throughout the decision) and turned her over to Reynolds. Reynolds confiscated A.K.'s personal belongings, including her cellphone, which she then decided to search for a number of stated reasons -- none of which was allowable under state case law, much less the Supreme Court's Riley decision.

The Riley decision is only referenced in a footnote, as the illegal searches were performed in 2012, roughly two years before the Supreme Court arrived at its conclusion. But that didn't prevent the court from finding state precedent that upheld Reynold's conviction.

Reynolds' coworkers provided plenty of testimony against her, rebutting her assertion that her search and seizure of the teen's cellphone was somehow related to finding A.K. somewhere to live.

Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds, Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified that Reynolds remained in possession of the cell phone because she believed it contained contact information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department, testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone, Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s cell phone contained contact information relating to drug dealers and that “they” needed to “finish their investigation.”

A.K. testified that she became very upset when Ross and Reynolds refused to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further, A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve Lamb and Michael Watts, and there was no evidence presented that either of these men was considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as to why she was questioned about her relationship to either man.

Reynolds tried to argue that her warrantless search of the cellphone was also somehow related to "exigent circumstances" -- that there was an "emergency regarding A.K.'s physical and emotional wellbeing." The state itself disagreed with Reynold's assertion.

The State maintains that Reynolds, as a representative of the Department, cannot claim that she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’ when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator attempting to build a case for either herself or law enforcement.” The State points to Reynolds’ affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”

Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales. Also, contrary to her stated concerns about A.K. having no place to go, the state points out that a placement facility had already been found at the point Reynolds decided to take A.K.'s phone and search it for "drug evidence."

The court notes that there are a wealth of warrant exceptions available to state agents when performing searches. Reynold's opinion of A.K.'s lifestyle, however, isn't one that's been recognized by any court -- or anyone possessing a modicum of common sense, actually.

Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone.

That's not how the Fourth Amendment works. And Reynolds' narrative about the phone's search somehow being related to caring for A.K.'s wellbeing doesn't hold up when compared to the facts.

Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor.

[...]

Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located. A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.

The conviction for official oppression is upheld. Oddly, as is pointed out at FourthAmendment.com, this sort of behavior by law enforcement officers usually only results in suppression of evidence, rather than official oppression charges. Lots of wrongful arrests and warrantless searches would seem to fit the language of the statute once the officer's immunity has been stripped.

A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful…

And yet, this charge is almost never brought, much less successfully prosecuted -- yet another way law enforcement operates at a lower level of culpability than the rest of the government. And far, far lower than what is expected of the citizens they serve.

Filed Under: exceptions, family services, texas, warrants

Thanks To Months Of Doing Nothing, Senate Allows DOJ's Rule 41 Changes To Become Law

from the do-nothing-lawmakers-manage-to-accomplish-something dept

The amendments to Rule 41 are now law, thanks to Sen. John Cornyn, who prevented bills opposing the immediate adoption of the changes from being debated.

Sens. Ron Wyden (D-Ore.), Steve Daines (R-Mont.) and Chris Coons (D-Del) took to the floor and unsuccessfully asked for unanimous consent to either pass or formally vote on three bills to delay or prevent updates to the process used by law enforcement to get a warrant to hack suspects' computers.

“We simply can’t give unlimited power for unlimited hacking,” Daines argued.

[...]

But the bid to prevent the imminent changes to Rule 41 ended quickly. After Wyden spoke, Majority Whip John Cornyn (R-Texas) immediately objected to all three bills, without waiting to hear from Coons and Daines.

But Cornyn alone can't be blamed for this outcome. A vast majority of senators did nothing to prevent the proposed changes from becoming law -- even though the decision has been in their hands since the Supreme Court's approval in April.

The FBI and others will be able to take advantage of the removal of jurisdictional limits to search computers anywhere in the world using a single warrant issued by a magistrate judge. It will also be granted the same power for use in the disruption of botnets -- in essence, searches/seizures of devices owned by US citizens suspected of no wrongdoing.

Cornyn, who prevented any debate over the "updates" to Rule 41, seems closely aligned with the DOJ's views -- that these changes will have "little effect" on civil liberties because the FBI, etc. "will still have to get a warrant."

Sure, warrants are still involved, but the scope of what can be accessed with a single warrant has been expanded greatly. And the DOJ has yet to explain how it's going to prevent law enforcement agencies from shopping around for the most compliant magistrates, now that they're not required to perform searches in the issuing court's jurisdiction. The DOJ also hasn't adequately explained what sort of notification process it will use when performing its botnet cleanups.

What it has done, however, is issue a statement saying the ends justify the means.

In an effort to address concerns, U.S. Assistant Attorney General Leslie Caldwell wrote a blog post this week arguing that the benefits given to authorities from the rule changes outweighed any potential for "unintended harm."

The DOJ wanted fewer restrictions, more power, and the opportunity to treat any appearance of anonymization software as an excuse to deploy these newly-granted powers. The Senate -- for the most part -- gave it everything it wanted by doing nothing at all to stop it.

Filed Under: doj, fbi, hacking, john cornyn, nit, ron wyden, rule 41, surveillance, warrants