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Category Archives: Fourth Amendment

Protecting Privacy – The Weekly Standard

Posted: August 25, 2017 at 3:47 am

The Fourth Amendment is in a sorry state. The constitutional provision intended to protect us and our property from unreasonable searches and seizures has been weakened over decadesa fact that ought to be of acute concern at a time when surveillance technology is increasingly intrusive and secretive. A modernization of Fourth Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance, David Gray, a professor at the University of Marylands Francis King Carey School of Law, attempts to outline what such a modernization might look like. To establish why reform is necessary, he offers a historical account. Gray traces the concepts embodied in the amendment back to mid-18th-century concerns in both England and the American colonies about overly broad permissions for executive agents. In England, the focus of the controversy was general warrants, which were vague in purpose and almost unlimited in scope.

In the colonies, the controversy focused on writs of assistance, a specialized kind of general warrant, ripe for abuse. In a five-hour-long speech before the Massachusetts Superior Court in 1761, the lawyer James Otis Jr. condemned writs of assistance, declaring them the worst instrument of arbitrary power, the most destructive of English liberty. John Adams, who witnessed Otiss oration, decades later described it as the moment when the Child Independence was born. A distaste for needless and indiscriminate intrusions into homes and other property is thus baked into Americas revolutionary DNA. It was eventually codified in the Fourth Amendment, with its prohibition of unreasonable searches and seizures and guarantee that no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The doctrines used in interpreting the amendment have evolved over time. The rise of modern police forces prompted the judiciary to develop the exclusionary rule (which ensures that evidence collected via Fourth Amendment violations is inadmissible), the Miranda warning (which, as anyone who has seen a TV cop show in the last four decades can tell you, holds that once youre in police custody officers must tell you that you have the right to remain silent and the right to an attorney), and the warrant requirement (which holds that searches are per se unreasonable if theyre conducted without prior approval from a judge or magistrate).

The interpretation of the Fourth Amendment has also evolved in response to technological development. Notably, the advent of eavesdropping devices gave rise to the reasonable expectation of privacy test, first formulated in Supreme Court Justice John Harlans concurrence in Katz v. United States (1967) and subsequently adopted by the Court. According to the test, government agents have conducted what the law considers a search if they have violated an individuals subjective expectation of privacy and if that expectation is one that society is prepared to accept as reasonable.

Unfortunately, Gray writes, the Katz test has proven inadequate to the task of regulating the means, methods, and technologies that have come to define our contemporary age of surveillance. Gray puts in his crosshairs three post-Katz doctrines that have had the effect of leaving some of the most intrusive surveillance technologies outside the purview of Fourth Amendment challenge.

First, thanks to the public observation doctrine, police do not necessarily need a warrant to peek into your backyard with a drone. (Some states have passed legislation mandating warrants for drone surveillance, but these requirements go beyond what is required by current Fourth Amendment interpretation.) Nor do police need a warrant to track your public activities for days at a time. As Gray points out, there wouldnt even seem to be a Fourth Amendment issue if the government were to install GPS trackers in every car or computer and then use those trackers to keep an eye on all citizens public movements. After all, as the Katz Court held, What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

The third-party doctrine likewise offers little reassurance. According to this doctrine, you have no reasonable expectation of privacy in information you voluntarily surrender to third parties, such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication, the implications of the third-party doctrine are significant. For example, police today can deploy devices called stingrays that mimic cellular towers. Each cell phone is constantly playing a game of Marco Polo with nearby cell towers, seeking a connection. A stingray emits a boosted signal, forcing all nearby phones to connect to it. This allows police to monitor the location of a targets cell phone. Using a stingray, law enforcement can also uncover information about a targets communications, such as the number of texts sent, the recipients of texts, the phone numbers dialed, and the duration of calls. But stingrays can also collect all of this information about the communications of innocent people. Thanks to the third-party doctrine, there is no clear Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal standing in Fourth Amendment cases have, according to Gray, also weakened the remedies available to citizens. Under the rules that emerged after Katz, plaintiffs must demonstrate that they have suffered a violation of their reasonable expectation of privacy. So, for example, citizens outraged about the National Security Agencys metadata collection program lack the standing to file their own Fourth Amendment suits; they have to be able to explain how the program violated their reasonable expectations of privacy. Or, in another instance, when Amnesty International challenged the FISA Amendments Act of 2008, a law giving the federal government broad power to snoop on U.S. citizens international communications, the Supreme Court ruled in 2013 that the organization lacked standing to challenge the law, even though Amnesty works with many international partners. As Justice Samuel Alito wrote for the Court, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.

With its citations from old dictionaries and other contemporary texts, Grays exhaustive word-by-word and clause-by-clause dissection of the Fourth Amendment should appeal to originalists. His take on standing may raise a few eyebrows, but he does a noble job of defending his claim that an original public understanding of the Fourth Amendment reveals that it protects a collective right to prospective relief, not just relief for past individual harms. The amendment does protect individuals, Gray believes, but its individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment protections in light of the high-tech surveillance techniques that are now available to authorities. Surveillance conducted by drones and stingrays could, he argues, be curtailed via a remedy modeled on the Wiretap Act. Under that 1968 legislation, passed in the wake of the Katz ruling, officers seeking a wiretap order must establish probable cause, exhaust other investigative methods, and ensure that the wiretap is time-limited. The act also requires that officers regularly report back to the court that issued the wiretap warrant.

When it comes to Big Data, Gray proposes a range of constraints governing the aggregation, collection, analysis, and storage of data.

Perhaps Grays most interesting proposal flows from his collective-right theory of the Fourth Amendment. He would allow individuals and organizations to have standing to challenge programs that threaten the people as a whole. This would allow, say, the American Civil Liberties Union to challenge the legality of New York Citys stop-and-frisk program. Such other programs and technologies as persistent aerial surveillance, metadata surveillance, and license-plate readers would be open to challenge under Grays understanding of the Fourth Amendment.

Not everyone will be convinced by Grays analysis. Some critics will undoubtedly dispute his collective-right theory of the Fourth Amendment and quibble with his Wiretap Act-like remedies. However, these disagreements will not detract from the fact that his book is a welcome and informative contribution to the public debate about surveillancea debate that will lastingly shape how we live together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.

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Protecting Privacy - The Weekly Standard

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LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose? – encore Online

Posted: August 22, 2017 at 11:38 pm

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The Guardian reported:

The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit, and information about what browser or operating system they used.

There are a variety of concerning aspects to this set of events. First, and most obviously, are those related to the First Amendment (freedom of speech and assembly) and the Fourth Amendment (protection from unreasonable search and seizure). The Department of Justice wants the IP addresses of every visitor to the siteand from that information the physical location of each visitor can be ascertained. It makes identification not all that difficult. Besides freedom of speech, there are questions about the scope of the warrant. The Fourth Amendment makes it clear a warrant must specify locations to be searched and probable cause. Orin Kerr noted in the Washington Post:

Courts have allowed the government to get a suspects entire email account, which the government can then search through for evidence. But is the collective set of records concerning a website itself so extensive that it goes beyond what the Fourth Amendment allows? In the physical world, the government can search only one apartment in an apartment building with a single warrant; it cant search the entire apartment building.

Additionally, one has to be concerned that one branch of government would use their power to collect private information about citizens it feels threatened by. It looks like a personal score to settle. People who disagree with the executive branch are to be identifiedand to what end specifically? Over 200 people have already been charged with felony rioting at the inauguration. Why does the Department of Justice need to identify 1.3 million people who might disagree with the executive branch? It is frightening not only for civil liberties but for what it can mean on the slippery slope of settling political scores with citizens. Ask the Mothers of the Disappeared in Argentina: This is dangerous.

At the end of June, the executive branch asked the states to turn over voter registration information for the voter fraud commission. The information requested voter rolls, dates of birth and the last four digits of social security numbers. North Carolinas bipartisan State Board of Elections and Ethics Enforcement announced it would turn over publicly available information to the commission, but not social security numbers and dates of birth. Some states have refused to comply. I have to admit: The possibility of finding oneself purged from the voter rolls is a scary idea.

About 10 years ago, I found myself dropped from the voter registration rolls. It was a bit of a surprise; I showed up on election day and was informed I was not registered to vote in New Hanover County. The poll worker asked if I had registered to vote?

Yes, I answered. I have voted at this precinct location for the past six years. I usually come in with one of my parents and we would take turns standing with the dog outside, because a family that votes together stays together.

After much hemming and hawing with the poll workers, I was given a provisional ballot. I sorted out my registration and, thankfully (fingers crossed), have not had a problem since.

I come from a family that makes voting a priority. I am comfortable advocating for that right with people in positions of authority.

Recently, my household went through the citizenship process and one of the recurring themes in the process was voting is one of the most important ways to participate in a democracy and preform a civic duty. At the Naturalization Ceremony, the League of Women Voters were standing by with voter registration forms for each of the newly sworn-in citizens.

It doesnt take a giant leap of imagination to see those two lists overlap: Who visited a website the executive branch dislikes and who voted against the candidate in the last election? Where there is a match, how hard would it be to drop a name from the rolls? As far-fetched as this would have sounded 18 months ago, it is just not hard to imagine right now. If they control who can vote, they can control who wins an election. The timing of demanding these two sets of data is startling and frightening.

Dreamhost is challenging in the warrant and a hearing is scheduled on August 18. What is possibly more frightening than the above scenario is the possibility this is just a litmus test. If successful, where does it stop? What speech and assembly freedoms could we lose?

In the wake of the events at Charlottesville and escalating concern regarding North Koreawhich strike a primal and emotional chordit is hard to focus on something as dry as a justice department warrant. But that is exactly why it is important. The events surrounding the warrant and what happens with the information gathered will directly impact the publics ability to talk back to power and speak freely.

Allowing one branch of the government to target citizens who disagree is dangerous The possibilities of the internet are a fascinating double-edged sword. Never before in history have we had the ability to share information, opinions and ideas with such immediacy. Social media and web tools can allow for assemblies with short notice on a scale not previously imaginedand the documentation of the assemblies can be shared and made available around the world as they unfold. But the footprint and trackability of online activity is the other side of the coin. Potentially targeting someones voting rights based upon political opinions is not what the constitution intends.

Its important: protecting citizens rights to vote, speak and participate in democracy. It is essential to our future.

CharlottesvilleDepartment of Justiceencore magazineFourth AmendmentGwenyfar RohlerLeague of Women VotersMothers of the Disappeared in ArgentinaNaturalization Ceremonynew hanover countyNorth KoreaOrin KerrState Board of Elections and Ethics EnforcementUnited States ConstitutionWashington PostWilmington NC

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Violations Of The Fourth Amendment And Other Concerns About Amendments To New Jersey’s Animal Cruelty Statute – JD Supra (press release)

Posted: at 11:38 pm

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

[View source.]

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Violations Of The Fourth Amendment And Other Concerns About Amendments To New Jersey's Animal Cruelty Statute - JD Supra (press release)

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Plan would designate sheriffs as ICE contractors in bid to bypass Fourth Amendment court decisions – ABA Journal

Posted: at 11:38 pm

Immigration Law

Posted August 21, 2017, 11:44 am CDT

By Debra Cassens Weiss

Several sheriffs told the New York Times about the legal maneuver in which sheriffs would become ICE contractors, and the jails would be paid a daily fee to hold immigrants believed to be in the country illegally until ICE takes custody.

ICE spokeswoman Sarah Rodriguez told the Times that the agency was exploring a number of options to address sheriffs concerns, and no final decision has been made.

The Times explains the Fourth Amendment issue. Sheriffs enforce criminal law, and they cant make immigration arrests because they are civil in nature. Because of that difference, judges have found that holding immigrants who have paid bail or served their sentence is an unlawful seizure under the Fourth Amendment.

Sheriff Bob Gualtieri of Pinellas County, Florida, told the newspaper that he came up with the reasoning supporting the idea and presented it to ICE. Its a seamless transition, said Gualtieri, who is also a lawyer.

Gualtieri said he was told that the plan would be rolled out through a pilot program in Florida before it is expanded nationwide.

Omar Jadwat, the director of the American Civil Liberties Unions immigrants rights project, didnt think the plan would satisfy judges. Its a kind of window dressing on the same practice, he told the Times. It doesnt really change the legal analysis.

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Homeschoolers ramp up 4th Amendment battle –

Posted: August 18, 2017 at 4:55 am

The Home School Legal Defense Association, the nations premiere advocate for homeschooling, is representing a family in its suit against a police officers unauthorized entry into a private home, even though the case has nothing to do with homeschooling.

Its because the case brought by LuAnn, Joseph and Timothy Batt against police officer Joseph Buccilli, who forced his way into the familys home without either a warrant or an emergency reason, illustrates the battle for the front door.

The family is appealing to the the 2nd U.S. Circuit Court of Appeals, arguing the Fourth Amendment protects them from unreasonable searches.

The amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case is relevant to homeschoolers, HSDLA explains, because early homeschoolers sometimesfound an investigative social worker at their front door, often accompanied by uniformed police officers.

These authorities were typically investigating anonymous tips that didnt have much to do with homeschooling itself often something like this: The children are always home, they dont go to school, and the family seems really religious.'

Police State USA: How Orwells Nightmare Is Becoming Our Reality chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

HSLDA said homeschoolers soon learned that front-door encounters with an investigative social worker could be traumatic for both parents and children alike.

Protecting our member families from such unwarranted investigations was what drew HSLDA into what we call the battle for the front door defending Fourth Amendment rights, the organizationsaid.

In the New York case, Buccilli, a police officerin Orchard City, barged into the familys home without a warrant after being told he had no permission to enter.

He claimed social services had asked him to do a welfare check at the home.

According to an HSLDA brief to the 2nd Circuit, which asks that the lower courts decision to award Buccilli immunity in the case be overturned, the officeradmitted he knew nothing about any allegations of wrongdoingor any emergencyand didnt know who asked for the welfare check.

I dont know the basis of the allegations or what the welfare concerns are, he told the family. We do have a right to come in here when an allegation is made.

I dont need a search warrant. I dont need to ask permission, he continued.

And, multiple times, he threatened anyone who obstructed him with arrest.

He ended up talking to a senior citizen, LuAnn Batts father, Fred Puntoriero, who was well-dressed and well-groomed and was being cared for by a nurse, and left. Social services closed down its investigation almost immediately.

But the lawsuit against the officer argueshe did exactly what the Constitution, affirmed by the U.S. Supreme Court, forbids.

Entries without a warrant are allowed for several reasons: when an officer is in hot pursuit of a suspect, when evidence is in imminent danger of being destroyed or someone is in need of emergency aid.

The brief points outnone of those circumstances existed for Buccilli.

Pointedly, the brief states, In 2004, the Supreme Court said no reasonable officer could claim to be unaware of the basic rule, well established by our cases, that absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.

It turns out, the brief explains, that Puntorieros daughter-in-law, who had been involved in disputes with the family over Freds care and property, had called authorities with the complaint that two weeks earlier her husband had expressed concern over his fathers welfare.

However, when Fred livedwith her and her husband, he was diagnosed with failure to thrive.

She told adult protective services that her husband had said two weeks earlier that Fred was lethargic when he visited.

APS admitted such reports from an underlying family dispute often are false, but the officer charged into the home anyway.

On April 17, 2012, Lt. Buccilli forcibly entered the Batts home, without consent or a warrant, to conduct a welfare check. On that day, federal law prohibited police from forcibly entering a home without consent or a warrant for any reason whatsoever, unless the circumstances fell within one of the established narrowly-drawn exigency exceptions, the brief explains.

The circumstances Lt. Buccilli confronted presented no exigency whatsoever.

HSLDAs Darren Jones, a litigation attorney, said theFourth Amendment doesnt have an exception based on a welfare check.'

Before police can come into a home, they must have either a warrant or some clearly defined exception, like an emergency or a hot pursuit of a suspect, he explained.

HSLDA Senior Counsel James R. Mason previously notedthe Batts were members of HSLDA since their son was a child.

He grew up reading about his Fourth Amendment rights in The Home School Court Report.

Mason pointed out Buccilli even threatened the family with informing adult protect services about [your] lack of cooperation.

The officerthen said, You should not pretend to know the law.

Mason argued the Fourth Amendment does not permit the police to enter anyones home without a warrant unless there is a real emergency even if its called a welfare check.'

The report said HSLDA has long believed that it is important to dispel the notion among police and other authorities that all Fourth Amendment bets are off when they demand to enter a home to conduct a welfare check.'

Police State USA: How Orwells Nightmare Is Becoming Our Reality chronicles how America has arrived at the point of being a de facto police state and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

Homeschoolers ramp up 4th Amendment battle -

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VerizonYes, VerizonJust Stood Up For Your Privacy – WIRED

Posted: August 16, 2017 at 5:54 pm

Roberto Machado Noa/Getty Images

Fourteen of the biggest US tech companies filed a brief with the Supreme Court on Monday supporting more rigorous warrant requirements for law enforcement seeking certain cell phone data, such as location information. In the statement, the signatoriesGoogle, Apple, Facebook, and Microsoft among themargue that the government leans on outdated laws from the 1970s to justify Fourth Amendment overreach. One perhaps surprising voice in the chorus of protesters? Verizon.

Verizon's support means that the largest wireless service provider in the US, and a powerful force in Silicon Valley, has bucked a longtime trend of telecom acquiescence. While carriers have generally been willing to comply with a broad range of government requestseven building out extensive infrastructure to aid surveillanceVerizon has this time joined with academics, analysts, and the companys more privacy-focused corporate peers.

Carpenter v. United States is one of the most important Fourth Amendment cases in recent memory, Craig Silliman, Verizons executive vice president for public policy and general counsel, wrote on Monday. Although the specific issue presented to the Court is about location information, the case presents a broader issue about a customers reasonable expectation of privacy for other types of sensitive data she shares with any third party. Our hope is that when it decides this case, the Court will help us better apply old Fourth Amendment doctrines to an evolving digital era.

From the early days of landlines, telecoms have complied with law enforcement requests for customer data such as call length, location, and who has called whom. As the variety of data customers generate has exponentially expanded and evolved, so has this information gathering by government officials, often under a general mandate and without a case-specific warrant. For its part, Verizon cooperated with the National Security Agency as part of broad bulk surveillance programs for years. Details of this coordination was revealed in NSA documents leaked by Edward Snowden in 2013, but some aspects of it had been publicly debated for years prior.

Carpenter v. United States, which the Supreme Court will hear this fall, relates to the acquisition, without a warrant, of months of individuals location records by law enforcement officials in 2011. Officials looked back on 12,898 location records, spanning a four-month period, of one of these individuals, Timothy Carpenter, to build their case; Carpenter was eventually convicted. His appeal argues that location-data collection by law enforcement without a warrant violates his Fourth Amendment rightsand Verizon agrees.

Verizon stands out because they actually hold the specific kind of location records that are directly at issue, says Nathan Freed Wessler, a staff attorney at the American Civil Liberties Union, which represents Carpenter. The telecoms have a long history in general of cooperating with law enforcement surveillance demands, but I think Verizons participation reflects a growing understanding of the importance of standing up for customers privacy rights."

As the general public becomes increasingly aware of the privacy risks associated with entrusting their data to corporate entities, a strong stance on data protection has been a boon to companies like Apple. This economic incentive may be even stronger for the numerous telecoms that now straddle the line between traditional utility and tech company. Verizon, for example, now owns Yahoo and AOL in addition to its role as a top-four wireless provider in the US.

"At the end of the day, a company like Verizon isnt going to stick its neck out if it doesnt think that theres a business rationale in addition to it being the right thing to do," Wessler says.

Verizon has laid the groundwork for this move for months. Silliman wrote publicly last year about potential Fourth Amendment concerns when telecoms comply with warrantless law enforcement data requests. The company's stand won't necessarily prompt peers to followno other telecoms joined this particular briefbut it still represents a turning point in the dialog between privacy advocates and monolithic telecoms. And in Carpenter v. United States, it's only one of the voices that matters in the larger discussion about data privacy.

"The other tech companies bring the perspective that this case is also about our emails and our smart devices and all the kinds of cloud-stored data that we create in the course of our daily lives now," Wessler says. "The Justices should not be under the misapprehension that they can just try to narrowly apply these outdated precedents from the 1970s in this case. The implications are really huge, and this is the chance to make sure that our understanding of the Fourth Amendment keeps up with digital technology.

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4th Amendment Protections Sought For Cell Site Location Data – Android Headlines

Posted: at 5:54 pm

Location data from your phone may fall under the protection of the 4th Amendment to the Constitution of the United States of America, and advocates from various circles, including the tech world, are making the argument that this should be the case. The conversation was started by a court case known as Carter v. the United States, wherein the court is seeking the right to obtain rough location data to track the defendant over the course of 127 days. Carter is being represented by the American Civil Liberties Union. The movement includes representatives from the Electronic Frontier Foundation, National Association of Criminal Defense Lawyers, Verizon, and a panel of experts from around the tech sphere. The base argument is that obtaining data constitutes seizure, while interpreting the data constitutes search, two activities that are restricted by the Fourth Amendment. The Fourth Amendment protects from unreasonable examples of those activities, and establishes the requirement for law enforcement agencies to obtain a warrant before performing most types of search and seizure procedures.

The type of location data thats presently at the center of the conversation is the somewhat less precise location data that can be gleaned from any device connected to a cellular network, with or without the involvement of GPS. This data includes a triangulation of your current location from nearby cell towers, as well as the locations of nearby Bluetooth devices and Wi-Fi networks, if available. This data tends to be less precise than GPS data, with an average accuracy of a couple dozen to a couple hundred meters, depending on network conditions. Thanks to the deployment of a larger amount of towers and small cells and more sophisticated network equipment, as well as a larger amount of mobile, IoT, and other electronic devices around at any given time, this location data has been less prone to gross inaccuracy in recent years.

The location data in question has, in the past, been considered imprecise enough to not warrant it being categorized as personal or private data. Police have used such data on a fairly routine basis for more rough usages, such as obtaining evidence of an alibi or a lack of one, putting multiple defendants near the scene of a crime at the same time, and doing other investigative tasks. Having such data require a warrant going forward could make investigations costlier and slower, which in turn means that the privacy and security advocates trying to push for this change will have an uphill battle ahead of them.

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Fourth Amendment protects against warrantless seizure of cellphone location records, amicus brief argues – Reporters Committee for Freedom of the…

Posted: August 15, 2017 at 11:53 am

Press Release | August 14, 2017

Reporters Committee for Freedom of the Press and a coalition of 19 other media organizations support requiring the government to obtain warrants for access to cellphone location records

The government should not be able to obtain cellphone location records without first getting a warrant, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. The current ruling makes it too easy for the government to track a persons every move through their cellphone, which is especially worrisome if the location records in question belong to a journalist. This endangers journalists ability to gather information and keep the public informed without the risk of being easily and routinely surveilled.

The coalition brief argues that cellphone location records paint an intimate and comprehensive picture of where individuals go, and thus the people and places they associate with.

According to the brief, a journalists cellphone location data can disclose particularly sensitive details about the journalistic process: It can reveal the stories a journalist is working on before they are published, where a journalist went to gather information for those stories, and the identity of a journalists sourcesExposure of sources and journalistic methods can put sources jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.

The brief also argues that if the government can easily and routinely access detailed information about a persons movements without a warrant, it threatens the ability to freely engage in activities protected by the First Amendment like newsgathering, which now often relies on use of a cellphone.

Cellphones have become a mobile newsroom and a necessary newsgathering tool for journalists. Unfortunately, theres no way to use a cellphone without sharing some location data with a service provider, said Brown. Allowing the government to easily access cellphone location records that paint a picture of where a journalist goes and possibly even who they meet with chills reporter-source relationships, threatens newsgathering, and ultimately harms the flow of information to the public.

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Fourth Amendment protects against warrantless seizure of cellphone location records, amicus brief argues - Reporters Committee for Freedom of the...

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Google, Facebook ask Supreme Court to protect cell phone data under Fourth Amendment – The Hill

Posted: at 11:53 am

Apple, Facebook, Google and other major technology companies asked the Supreme Court late on Monday night to rule that their users data should be protected from warantless search and seizure by the government.

The companies filed a brief in the case Carpenter v. United States, which the court has taken up to decide whether certain cell phone data is protected under the Fourth Amendment.

The namesake of the case is Timothy Carpenter, who was convicted of a string of armed robberies in 2010 and 2011. At trial, prosecutors presented cell phone location data from Carpenter and his accomplices that was obtained from service providers without a warrant.

The companies, which stressed that they took no position on Carpenters guilt, argued that their customers understand that data is collected by service providers as part of providing digital technologies, customers still expect privacy with respect to other parties, including the government.

Twitter, Verizon, Microsoft and Snap are also among the companies that filed.

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Google, Facebook ask Supreme Court to protect cell phone data under Fourth Amendment - The Hill

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How Private is Your Cellphone? The Next Fourth Amendment Challenge – Crime Report (subscription)

Posted: at 11:53 am

Most people know that very little they do on the web is private. The terabytes of data held online contain personal information accessible not only to friends, relatives and would-be employers, but to private businesses, which frequently collect user information in order to deliver better services to customers.

Can the government see it too?

In 1979, the Supreme Court ruled in Smith v. Marylandthat Fourth Amendment protections against warrantless searches do not cover such third party access to online data. In what has since been developed as the Third Party Doctrine, the court ruled that an individual has no legitimate expectation of privacy for information voluntarily given to athird partybe it a person, bank, or phone carrierinformation that is also then similarly available to government agencies.

But what are government agencies, such as law enforcement, constitutionally permitted to do with the data they collect? A case before the Court next month may help answer the question.

Carpenter v. United States has the potential to affect application of the Fourth Amendments Third Party Doctrine in the digital age.

The case involves a string of robberies, allegedly organized by the defendant, Timothy Carpenter, which occurred over a two-year period. Police acquired cell site location information (CSLI) associated with the phone he used. Although no search warrant was ever obtained, a judge did sign a court order under the Stored Communications Act, a statute that requires reasonable suspicion, not probable cause.

The CSLI records revealed Carpenters location and movements over 127 days and showed that during the five-month period his phone was in communication with cell towers near the crime scenes.

Although there is a tendency to read Smith v. Maryland as a blanket rule, where anything given to or accessed by a third party has no Fourth Amendment interest, it doesnt make sense to apply a doctrine created over 30 years ago to types of communications and data that were neither used at the time nor contemplated by the Court.

Deanna Paul

Given how much [of] our data goes through third parties, if you take a strong reading of the Doctrine, it essentially wipes out Fourth Amendment protections for most modern communications, Michael Price, Senior Counsel for the Liberty and National Security Program at New York Universitys Brennan Center for Justice, told me.

There is also nothing about location information in Smith. To rely on it, and say that location information should be accessible without a warrant, is reading the case far too broadly.

Prices point is an important one.

To analogize cases is to suggest they should be treated the same under the law and receive the same level of protection. Although the facts may specifically involve cell-site information, Carpenter is about more than just location privacy. Here, as is increasingly the case with Internet-of-Things-based prosecutions, a third-party server already had access to the sought after location data.

Carpenter presents the first chance for the Court to reconsider Fourth Amendment protections against warrantless searches and seizures of information generated and collected by the many modern technologies we use every day.

This is an opportunity at least one Supreme Court Justice has recognized.

In 2012, the Court resolved the issue of location privacy in United States v. Jones, holding that installation of a Global Positioning System (GPS) tracking device on a vehicle and using it to monitor the vehicles movements constitutes a search under the Fourth Amendment. In her concurrence, Justice Sonia Sotomayor wrote that the current approach to these cases is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks

She suggested it may need to be rethought in the future.

There are signs from recent cases, like Jones, that the Justices are aware of the importance of technology in contemporary life. They appear to recognize that technology is significantly different today than it was ten years ago, let alone when the Court was deciding cases like Smith.

Riley v. California was the first time the Supreme Court identified the central role that cellphones have in todays society, holding that police need a warrant to search a smart phone belonging to a person who has been arrested. Writing for the majority in 2014, Chief Justice John Roberts said that cell phones have such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

The Riley Court went on to say that cellular phones have become essential to freedom of speech and First Amendment rights and, due to the volume and personal nature of the information that can be stored on a cellphone, the data should be presumptively protected by the First Amendment. The decision notes that a cell phone can double as a diary, camera, calendar, or newspaper, which makes the search of one fundamentally different from a physical search or even a search of business records.

This is an important decision, in terms of First Amendment protections, showcasing the Supreme Courts comfort with new technology and that it is cognizant of the impact of digital information, said Andrew Ferguson of the David A. Clarke School of Law at the University of District Columbia, and a national expert on predictive policing and the Fourth Amendment,

See also:Digital Privacy Rights of Probationers

Similarly, earlier this year, the Court decided Packingham v. North Carolina, which addressed the prevalence and necessity of the internet and social media in a digitized society.

Riley embodies the idea that new technologies and the digital space are different, yet fails to view these devices for what they are rather than what theyre most similar to. A cell phone is not a diary, calendar or any of the technologies cited by by the Court, and to draw a series of slightly-off-the-mark analogies and suggesting they should be treated the same, is not a solution.

In reviewing Carpenter, there are only a few scenarios for the Courteach of which will have lasting implications.

The Court might opt to temporarily put tape over the problem, hiding behind the Third Party Doctrine and wait for the next case to make its way up.

Or it could limit the Doctrines application to CSLI and recognize that carrying a cellular phone does not, in and of itself, amount to consenting to location tracking.

One of the difficulties the Court is confronted with is that the Doctrine, as its been created, doesnt offer a nice neat answer, said Ferguson. The Court may have to rethink their traditional approach to the Fourth Amendment in order to address this new technological threat to privacy and security.

The other difficulty is: If Carpenter is really about the future of the Third Party Doctrine, it is about far more than just cell site recordsit is about the future of a data-driven third party mediated age.

That is a huge question to answer. And, due to the far-reaching consequences any of the scenarios the Court may chose, the Court may also just decide to punt it to a future case.

There are few things we do online that arent connected, in some way, to a third party. As smartphone technology continues to advance, more and more aspects of our lives will be recorded and stored on third-party servers. Lower courts across the country are only just beginning to consider how the Internet of Things will affect our expectations of privacy.

Carpenter is an opportunity for the Supreme Court to reconceive how privacy and security values can be protected in an era of increasingly sophisticated surveillance technologies that allow us to remotely control the lights and heat in our homes or monitor intruders.

Lets hope the Justices take it.

Deanna Paul (@thedeannapaul) is a former New York City prosecutor and adjunct professor of trial advocacy at Fordham University School of Law. This fall she will begin attending Columbia Universitys graduate school of journalism. Her nonfiction work has been published by The Marshall Project, Rolling Stone, and WIRED.

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How Private is Your Cellphone? The Next Fourth Amendment Challenge - Crime Report (subscription)

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