This was a pretty unique circumstance. The issue was that Midcontinent wasn't in the D.C. court's jurisdiction. I'm pretty sure all of the other ISPs involved are in the court's jurisdiction. And for ISPs that aren't, I don't see USCG making this same mistake again in the future.
I think it's hilarious that USCG just faxed this subpoena to South Dakota. What were they thinking?
If USCG does it right and resubmits it, it will not be denied. I don't care how hard Midcontinent fights it. There's just no legal basis to deny these subpoenas if they are properly submitted.
There's really no reason to think Midcontinent would even fight it if it were proper. If you read their brief you'll see that they are all to happy to play along if USCG submits a proper subpoena. They said it'll take them 3.5 hours to look up the 143 names. I'm sure USCG will be more than happy to take them up on that.
And my posts are always accurate, thank you very much. ;)
Midcontinent listed four reasons for quashing the subpoena:
(1) invalid service of process
(2) the subpoena was not issued under the authority of a court described in Rule 45, i.e., the subpoena should be issued under the authority of the District of South Dakota under Rule 45(a)(2)
(3) the parties whose identities are sought by Voltage have not been notified of the subpoena as Rule 45 requires
(4) money was not attached to the subpoena to reimburse Midcontinent for their costs of producing the information
The judge only had to look to (1) to decide in Midcontinent's favor: "Service by facsimile transmission in not an authorized method of service under the Rule." You can't just fax a subpoena someone. Duh!
Now, I wouldn't get too excited about this. It was a simple yet stupid mistake by USCG, IMO. They could very easily fix all of these problems and resubmit the subpoena properly. Considering that the 143 defendants in question could mean hundreds of thousands of dollars in potential settlements, I will be surprised if USCG doesn't fix their mistakes and resubmit the subpoena.
Still, there is plenty of egg on USCG's face for this mistake. We should all take a moment and laugh at them. ;)
That's an interesting anecdote, but in that situation I would still say that the cops need probable cause. If the law in their district requires a search warrant, they'd need that as well.
Think about it. How are they going to explain to the judge that they just so happen to be tracking the GPS on the suspect's car? The judge would obviously know they were in on it.
Hey man, I'm with you... to a point. Of course there are always going to be people who abuse their power, and warrants don't necessarily mean they're not lying. I'm sure there are some feds who even lie to magistrate judges to get their warrants.
We are however protected by the exclusionary rule and the fruit of the poisonous tree doctrine. Evidence culled from an illegal search is not admissible. That protection goes a long way.
I do think that the vast majority of feds play by the rules, so I'm not really too worried about it. The judges, lawyers, cops, prosecutors, and feds that I know all go to great lengths to get everything right. Don't go around thinking they're all bad apples, because they simply are not.
That said, I'm clearly of the opinion that they should have to get a warrant for such searches. I hope the Supreme Court takes this case and lays down some new rules that protect our privacy.
I agree 100% that a warrant should be required exactly for the reason you cited--judicial oversight. The reality is that the feds don't need a warrant except for in D.C., and only then if it's for 28 days or longer.
Re: Danielle Citron's analysis of two conflicting rulings
That's another interesting set of Fourth Amendment rulings, but it's a different issue than what the case in this article is about.
That one is about what the feds need to get a warrant to access historical cell-site data. It's a bit more complicated since there is a statute at issue.
This case is about whether or not the feds need a warrant to do GPS surveillance over an extended period.
They can get a warrant, they just don't have to, except for in D.C. where they now need a warrant if the GPS search is for 28 days or longer.
I'm not aware of any other circuit where they have such a restriction, and there are three that I know of that have held they don't need a warrant for such searches.
I agree with the D.C. Circuit that these other circuits are misreading the Supreme Court's decision in Knotts--they should have to get a warrant. I don't like the thought of the feds tracking me for days on end without a warrant.
The Fourth Amendment only says that if they get a warrant, it must be based on probable cause. It doesn't say they need a warrant in the first place. That's the problem.
I hope this case goes to the Supreme Court. Now that there is a genuine split in the circuit courts, I think Supreme Court review is likely.
You should keep in mind that there is the exclusionary rule. If the feds track you without probable cause, then whatever they find out about you pursuant to that search will be inadmissible. The feds have every incentive to play by the rules if they want to get their conviction.
Of course I realize that there will always be people who abuse their authority. I don't have the blind faith you impute me with. You're barking up the wrong tree if you think I'm not a realist. I don't find you to be a very thoughtful person, so I'm not surprised you've mislabeled me.
You guys seem to be missing the point that these are federal agents acting with probable cause. They can't just go out and do this to everyone--not without probable cause.
Keep in mind that the feds can already do this in all fifty states. This case was only in D.C. so it only applies there.
The holding of the D.C. Circuit was that the feds couldn't put a GPS on your car and record the information for 28 days straight. Nothing says they can't it for 27 days or less.
Most states require that state-level law enforcement officers do need a search warrant first. So while your local police or sheriff's office would need a warrant, the feds would not. This is nothing new.
As Goldman (who teaches cyberlaw) notes, perhaps this student should take a cyberlaw class, in order to better understand liability and safe harbors, such as Section 230 when it comes to defamation claims.
We don't have anything like cyberlaw at my school. I wish we did. It seems kind of silly to me in this day and age not to.
The closest thing we have is computer law, which focuses on software and hardware issues like copyright, trademark, patents, trade dress, licensing, antitrust, etc.
I just checked the textbook, and I found one case about defamation and section 230 at the back of the book. The professor I had never assigned that case.
On the post: Judge Says No To Hurt Locker Subpoenas
Re: the south dakota decision
This was a pretty unique circumstance. The issue was that Midcontinent wasn't in the D.C. court's jurisdiction. I'm pretty sure all of the other ISPs involved are in the court's jurisdiction. And for ISPs that aren't, I don't see USCG making this same mistake again in the future.
On the post: Judge Says No To Hurt Locker Subpoenas
Re: Re:
If USCG does it right and resubmits it, it will not be denied. I don't care how hard Midcontinent fights it. There's just no legal basis to deny these subpoenas if they are properly submitted.
There's really no reason to think Midcontinent would even fight it if it were proper. If you read their brief you'll see that they are all to happy to play along if USCG submits a proper subpoena. They said it'll take them 3.5 hours to look up the 143 names. I'm sure USCG will be more than happy to take them up on that.
And my posts are always accurate, thank you very much. ;)
On the post: Judge Says No To Hurt Locker Subpoenas
Midcontinent listed four reasons for quashing the subpoena:
(1) invalid service of process
(2) the subpoena was not issued under the authority of a court described in Rule 45, i.e., the subpoena should be issued under the authority of the District of South Dakota under Rule 45(a)(2)
(3) the parties whose identities are sought by Voltage have not been notified of the subpoena as Rule 45 requires
(4) money was not attached to the subpoena to reimburse Midcontinent for their costs of producing the information
The judge only had to look to (1) to decide in Midcontinent's favor: "Service by facsimile transmission in not an authorized method of service under the Rule." You can't just fax a subpoena someone. Duh!
Now, I wouldn't get too excited about this. It was a simple yet stupid mistake by USCG, IMO. They could very easily fix all of these problems and resubmit the subpoena properly. Considering that the 143 defendants in question could mean hundreds of thousands of dollars in potential settlements, I will be surprised if USCG doesn't fix their mistakes and resubmit the subpoena.
Still, there is plenty of egg on USCG's face for this mistake. We should all take a moment and laugh at them. ;)
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
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At least I don't need a tinfoil hat to get through the day. ;)
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
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On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
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On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: No need to involve cops for GPS
Think about it. How are they going to explain to the judge that they just so happen to be tracking the GPS on the suspect's car? The judge would obviously know they were in on it.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re: Re: Re:
We are however protected by the exclusionary rule and the fruit of the poisonous tree doctrine. Evidence culled from an illegal search is not admissible. That protection goes a long way.
I do think that the vast majority of feds play by the rules, so I'm not really too worried about it. The judges, lawyers, cops, prosecutors, and feds that I know all go to great lengths to get everything right. Don't go around thinking they're all bad apples, because they simply are not.
That said, I'm clearly of the opinion that they should have to get a warrant for such searches. I hope the Supreme Court takes this case and lays down some new rules that protect our privacy.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re: Re: Re: Re: Re:
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Danielle Citron's analysis of two conflicting rulings
That one is about what the feds need to get a warrant to access historical cell-site data. It's a bit more complicated since there is a statute at issue.
This case is about whether or not the feds need a warrant to do GPS surveillance over an extended period.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
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I'm not aware of any other circuit where they have such a restriction, and there are three that I know of that have held they don't need a warrant for such searches.
I agree with the D.C. Circuit that these other circuits are misreading the Supreme Court's decision in Knotts--they should have to get a warrant. I don't like the thought of the feds tracking me for days on end without a warrant.
The Fourth Amendment only says that if they get a warrant, it must be based on probable cause. It doesn't say they need a warrant in the first place. That's the problem.
I hope this case goes to the Supreme Court. Now that there is a genuine split in the circuit courts, I think Supreme Court review is likely.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re: Re: Re:
GPS tracking is a search, and for a search to be reasonable there must be probable cause (or exigent circumstances).
Go read a ton of Fourth Amendment law and get back to me.
On the post: Law Student Sues Google Over Allegedly Defamatory Blog Posts
http://be-aware-of-arsene-millogo.blogspot.com/
http://arsene-e-millogo.blogspot.com/
On the post: Law Student Sues Google Over Allegedly Defamatory Blog Posts
Re: plaintiff should be found guilty of failure to learn
Still, this is one shoddy complaint.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re: Electronic Gold Star
I love how you guys just make this stuff up.
Do you wear tinfoil hats too?
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re:
Of course I realize that there will always be people who abuse their authority. I don't have the blind faith you impute me with. You're barking up the wrong tree if you think I'm not a realist. I don't find you to be a very thoughtful person, so I'm not surprised you've mislabeled me.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Re: Re:
Do you have any evidence that the feds are abusing GPS tracking? If not, you're just letting your bias and emotions do your thinking.
On the post: Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants
Keep in mind that the feds can already do this in all fifty states. This case was only in D.C. so it only applies there.
The holding of the D.C. Circuit was that the feds couldn't put a GPS on your car and record the information for 28 days straight. Nothing says they can't it for 27 days or less.
Most states require that state-level law enforcement officers do need a search warrant first. So while your local police or sheriff's office would need a warrant, the feds would not. This is nothing new.
On the post: Law Student Sues Google Over Allegedly Defamatory Blog Posts
We don't have anything like cyberlaw at my school. I wish we did. It seems kind of silly to me in this day and age not to.
The closest thing we have is computer law, which focuses on software and hardware issues like copyright, trademark, patents, trade dress, licensing, antitrust, etc.
I just checked the textbook, and I found one case about defamation and section 230 at the back of the book. The professor I had never assigned that case.
On the post: Supreme Court Apparently Interested In 'Innocent Infringer' RIAA Case
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