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Courts are frequently called upon to apply the Fourth Amendments prohibition against unreasonable searches and seizures to police procedures. Marylands Court of Special Appeals this week reviewed whether the use of fare inspections on a light rail train violated the Fourth Amendment in a case called Kenneth Carter v. State of Maryland.
The opinion indicates that Maryland Transit Authority police gathered on the platform of a Baltimore light rail station, for the purpose of doing a fare inspection to see if passengers had paid for their fare. There was no evidence of any signs posted in the stations that such fare sweeps may be done. Failure to pay the fare is a crime subject to a $50 fine. When the train pulled into the station, an officer entered each train and announced that each passenger had to show their ticket proving they had paid the fare.
Carter approached an officer and admitted he had no ticket, and was directed to another officer on the platform who obtained his identification. A record check showed a possible warrant outstanding for Carter, who then tried to flee and was tackled. During the melee the police found that Carter had a gun, and it turned out he was a convicted felon. At trial, defendants motion to suppress evidence because of an illegal detention was denied, and he was convicted of firearms offenses and resisting arrest.
The appellate Court noted that in determining whether an investigatory detention by police had occurred, it would look at such factors as the use or show of force or authority by the police so that a reasonable person would believe they were not free to leave or refuse to answer questions. Here, the appellate Court found that by announcing to all passengers that they could not leave the train until producing proof of fare payment, Carter had in fact been detained even before he admitted he had no ticket.
Since one of the officers at trial admitted that they used fare checks as a means of enforcing outstanding warrants, the appellate Court declared this police misconduct in violation of the Fourth Amendment. Therefore, the motion to suppress evidence should have been granted, and the convictions were reversed.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.
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GRAND RAPIDS, MI -- A five-year court battle over Grand Rapids police taking photos and fingerprints of teens not carrying identification finally appears to be done.
A sate Court of Appeals panel ruled this week that the Fourth Amendment rights of the teens was not violated when they were detained and officers, in separate incidents, took photos and fingerprints of the youth.
The cases have been in the courts since 2014, but the police encounters happened in August 2011 and May 2012.
They involved the 2011 stop of Denishio Johnson, then 15, after witnesses reported seeing him looking into vehicle windows as if he intended to steal items. Police found Johnson sitting under a tree and he told officers he was waiting for a friend to arrive on a bus.
He was detained in handcuffs for five or 10 minutes and then released.
The other incident happened in 2012 with the stop of teen Keyon Harrison near Lake Drive SE and East Fulton Street.
Grand Rapids police Capt. Curt VanderKooi saw the teen hand another boy what appeared to be a large model train engine. VanderKooi thought it was suspicious and detained the teen. Harrison told him he was simply returning the train following a school project.
In this weeks court ruling, the state Supreme Court asked the Court of Appeals to determine whether taking photos and fingerprints violated the Fourth Amendment rights of the teens, who were never charged with any crime.
The court panel noted that past case law allows for fingerprinting as there is no reasonable expectation of privacy in ones fingerprints.
The judges also said that attorneys for the teens had conceded that their clients were validly detained, a crucial point.
Because we conclude that the P&Ps (photos and prints) did not infringe on plaintiffs Fourth Amendment protections (given that, as plaintiffs concede, they were validly detained) we further conclude that plaintiffs have failed to satisfy their burden of demonstrating that the custom or policy at issue here, i.e., the photographing and printing of individuals during an investigatory stop based on reasonable suspicion but without probable cause, was unconstitutional, according to Thursdays opinion.
Grand Rapids police in 2017, prior to then-Chief David Rahinskys retirement, said they were no longer doing photos and prints as a routine matter and would only be used if someone showed highly suspicious" behavior.
Police said they wanted to improve and better align our services with community expectations with the change.
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Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.
The Fourth Amendment bars unreasonable searches and seizures of people, property, and homes by typically requiring a warrant supported by probable cause to believe that a crime has been, is, or will be committed.
Border officials, however, have long asserted and courts have recognized the border search exception, which permits warrantless searches at the border. The basic theory is that you can search persons and possessions without a warrant because the government interest in enforcing customs and immigration laws makes such searches reasonable even without a warrant.
The advent of widely available, portable electronic devices with the ability to store a lifes worth of private data has made such searches all the more controversial as they grow increasingly invasive with technological advances.
In an important decision last week, a federal court in Boston ruled that federal agents cannot rely on this doctrine to conduct suspicionless searches of travelers electronic devices at the border and other U.S. ports of entry. Weve received an important question: What does this mean for journalists traveling internationally who are worried about exposing confidential journalistic material or source contacts stored on their electronic devices?
The short answer is that journalists crossing the border should take comfort in the courts ruling (and congratulations to the American Civil Liberties Union and Electronic Frontier Foundation for the win!), but they should continue to take the same digital security measures recommended by the Reporters CommitteeandCommittee to Protect Journalists, among others.
This is partially because the ruling came from the district court, which means that the government has an opportunity to appeal the ruling to the appellate court and perhaps to the Supreme Court. Our caution also stems from incidents like the journalist trackingrevealed by NBC 7 San Diego, which the Reporters Committee continues to investigate throughFreedom of Information Act litigation. Were not sure if border officials could adopt a position that reporting on border activities would actually confer reasonable suspicion that a journalist could have information related to border enforcement operations.
Additionally, plaintiffs in the lawsuit sought two types of relief one requesting the court to declare that the governments policies permitting searches absent probable cause are unconstitutional, and another asking the court to issue an injunction prohibiting border officials from conducting suspicionless searches. The district court partially granted the declaratory relief (the court found that the heightened standard of probable cause that plaintiffs sought was not warranted at the border), but it denied the injunctive relief without prejudice, meaning that plaintiffs are not barred from requesting this relief again in future proceedings.
While last weeks ruling is undeniably a step forward in ensuring Fourth Amendment protections at the border, caution should remain the order of the day, particularly for journalists. The best approach is to ensure youre not carrying sensitive data when crossing international borders.
The whistleblower who exposed how the U.S. government kept tabs on reporters covering events on the southern border hasidentified himselfas Special Agent Wesley Petonak, a nine-year veteran of the San Diego Homeland Security Investigations office. Petonak said he raised concerns with his superiors about the constitutionality of monitoring and stopping journalists, lawyers, and human rights activists, but they said it was standard practice. He eventually took photos of PowerPoint slides that alerted him to the dossier and shared the photos withNBC 7 San Diego. In response to learning about this surveillance, in May, the Reporters Committeejoined a coalition of 103 organizationsin sending a letter to the acting secretary of the U.S. Department of Homeland Securitydecrying the practice. The Reporters Committee and NBC 7 San Diego alsofileda FOIA lawsuit against four government agencies for refusing to provide records about the database or application used to monitor and target journalists. This week, the American Civil Liberties Union alsofiled a lawsuiton behalf offive photojournalistswho were targeted by the surveillance.
The city of Fullerton, California, filed itsopposition to an appellate courts decision to lift an injunction that would have prevented bloggers from publishing city documents. As a quick review of the case, the city had sent one of the bloggers a link to the city Dropbox account in response to a public records request that, the city claims, inadvertently provided access to a wide range of city documents. In its suit, the city alleged that the bloggers only had permission to access a small portion of these files. By allegedly accessing the other files, the city argues that they violated federal and state anti-hacking laws. The Electronic Frontier Foundation also filed afriend-of-the-court briefin support of the bloggers, echoingsimilar argumentsadvanced by Reporters Committee attorneys that the hacking laws target technical break-ins (e.g., hacking into a password-protected account), not, as is the case here, access to a publicly available Dropbox account.
Two updates on the Section 215 reauthorization front: Congresspassed, and the president signed, a continuing resolutionto continue funding the government that included a 90-day extension to the expiration of the foreign intelligence surveillance law provision that allows the government to collect telephone metadata in bulk. Second, on the heels of hearings by the judiciary committees in both chambers of Congress, the Office of the Director of National Intelligenceclarifiedthat the Intelligence Community does not use Section 215 for warrantless collection of cellphone location information (determined by pinging cell towers or GPS data). Without fully ceding the authority to do so, the ODNI acknowledged that the Supreme Courts decision inCarpenter v. United States, which mandated warrants for cell-site location information (a legal term of art) in domestic criminal investigations, makes the continued warrantless collection of such data a tenuous legal proposition.
Facebookrevealedin its latest transparency report that the number of U.S. government demands for user dataincreasedto 50,741 during the first half of this year, compared to 41,336 demands in the second half of last year. The company reported that it provided some account or user data to authorities in 88 percent of the cases, and that two-thirds of the U.S. authorities requests were accompanied by a gag order. The order prevents the company from revealing the request to the user. As we noted in a recentfriend-of-the-court brief, the use of gag orders poses more serious problems for newsgathering as more information held by third-party providers moves to the cloud.
A newreportfrom the Pew Research Center found that the majority of Americans 72 percent believe that all or most of what they do online and on their cellphone is being tracked by companies, while 47 percent think their activities are being tracked by the government. The report also stated that 31 percent of Americans believe all or most of their offline activities, such as where they go and who they talk to, are tracked by companies, while 24 percent think their offline activities are tracked by the government.
As we highlightedearlier this month, the Pentagon decided not to award a $10 billion cloud-computing contract to Amazon for the Joint Enterprise Defense Infrastructure, or JEDI, project. Amazons founder, Jeff Bezos, owns the Washington Post, and both he and the paper have been criticized by the President. Amazon saidthis weekthat it plans to officially challenge the governments decision, contending that it was potentially influenced by improper political considerations.
The Justice Departmentreversed its positionin a FOIA suit to obtain documents related to the investigation of former FBI Deputy Director Andrew McCabe, who was fired after an internal report found he had misled investigators about authorizing the release of information to the media. The government dropped its claim that the documents cannot be released on the basis of their relevance to an ongoing investigation, and the Justice Department filed a motion that would permit the plaintiffs in the case Citizens for Responsibility and Ethics in Washington to begin receiving the requested materials. This movesuggests DOJ prosecutorsmay no longer be entertaining criminal charges against McCabe, though government attorneys declined to rule out that possibility.
A recent federalcourt rulingin a FOIA suit brought by the American Civil Liberties Union against the FBI will require the government to disclose whether it has records related to the use of social media surveillance tools on citizens and noncitizens alike. The ACLU brought the suit in light ofpublic records indicatingthat the FBI was seeking contractors to help it develop ways of analyzing social media data.
Finally, last weekend and again this week, The New York Times and The Intercept shared details from hundreds of pages ofsecret Iranian intelligence cables. The New York Times also shared details from hundreds of pages ofinternal Chinese documentsthat were leaked anonymously. Look out for a more in-depth discussion of these leaks stories soon.
Bonus: The Freedom of the Press Foundation published thisnifty guideabout what to buy the security-conscious journalist in your life this holiday season.
Gif of the Week:Theres been a lot of talk about surveillance and privacy this week, and we couldnt help but think of this classic film about neighborly surveillance.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.
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While you still need to take extra precautions for privacy when entering or leaving the U.S., it seems that border agents no longer have complete discretion to search your phone and computer. In a change to effective search policy, border agents need to establish reasons for suspicion of your unlawful intent before insisting to search your electronics.
In a November 12, 2019 opinion, a Massachusetts District Court Judge held that for border officials to be authorized to search electronic devices of international travelers, there must be a reasonable suspicion that the traveler is carrying some sort of contraband on a smartphone or laptop. (Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. Lexis 195556)
Privacy at the border is a contentious issue. The Fourth Amendment of the U.S. Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. But one of the well-settled exceptions to the Fourth Amendment protection for unreasonable searches and seizures are border searches to international travelers. As the Court noted, the border search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country because it serves the nations paramount interest in protecting its territorial integrity.
Back in 2017, the American Civil Liberties Union (ACLU) sued the heads of the Department of Homeland Security (DHS), U.S. Customs and Border Protection and the U.S. Immigration and Customs Enforcement (ICE) on behalf of 11 travelers, for searching their electronic devices and, in some cases, confiscating them, at ports of entry to the United States. This case raised the question whether the border exception to the Fourth Amendment includes searches of smartphones or laptops that are performed by CBP officers at international ports, pursuant to currently effective CBP policies.
The facts of the case are that each of the eleven Plaintiffs (ten of which are U.S. citizens and one was a lawful permanent resident) had their electronic devices searched at least once at a U.S. airport after each of the Plaintiffs returned to the U.S. on an international flight. The challenged actions included searches of smartphones, either locked or unlocked, and in some cases laptops.
Some of the information the border officers accessed and retained in the searches included, among others, photographs, emails containing attorney-client communications, information about one plaintiffs journalistic work information, and even in one case it went as far as attempting to extract data from the phones SIM card, and attempting to image the information contained in the laptop using a software to copy all of the devices data.
Plaintiffs challenged the constitutionality of these searches, claiming that the CBP and ICE policies that allow for border searches of electronic devices without a warrant violate their Fourth Amendments protection against unreasonable searches and seizures. Defendants, for its part, relied on the border exception to defend their policies and searches, and argued that no warrant is required.
Analyzing this case, the Federal Court in Boston found that what the border search exception recognizes, rather than a limitless ability to conduct searches in connection with international travel, is that individuals have a reduced expectation of privacy at the international border that should be balanced with the governmental interests.
Therefore, while acknowledging the federal governments compelling interest in border security, U.S. District Judge J. Casper found that electronic device searches are fundamentally different than searches of other belongings. For doing so, Judge Casper relied on the 2014 U.S. Supreme Court ruling in Riley v. California (Riley v. California, 573 U.S. 373, 2014 U.S. Lexis 648), which also established that electronic devices are fundamentally different from other belongings and physical containers, because they can carry vast amounts of highly personal information. The Court recognized that the potential level of intrusion from a search of a persons electronic devices simply has no easy comparison to non-digital searches.
The ruling, however, did not go so far as to require warrants for border device searches, but concluded that the border search exception to the Fourth Amendment does not give CBP officers an unfettered ability to search electronic devices: reasonable suspicion of contraband is required.
But this is not, by far, the only or last issue on privacy rights at the U.S. border. Just as an example, earlier this month the Electronic Frontier Foundation sued the DHS in the Northern District Court of California requesting to expedite a FOIA request to provide data and records regarding the U.S. governments use of a fast-acting DNA testing on migrant families at the borders. These types of tests raise questions regarding these privacy-invasive technologies, and whether they are a violation of privacy rights.
from the prime-video dept
Even more alarming news has surfaced about Amazon's Ring doorbell/camera and the company's ultra-cozy relationship with police departments.
Since its introduction, Ring has been steadily increasing its market share -- both with homeowners and their public servants. At the beginning of August, this partnership included 200 law enforcement agencies. Three months later, that number has increased to 630.
What do police departments get in exchange for agreeing to be Ring lapdogs? Well, they get a portal that allows them to seek footage from Ring owners, hopefully without a warrant. They also get a built-in PR network that promotes law enforcement wins aided by Ring footage, provided the agencies are willing to let Ring write their press releases for them.
They also get instructions on how to bypass warrant requirements to obtain camera footage from private citizens. Some of this is just a nudge -- an unstated quid pro quo attached to the free cameras cops hand out to homeowners. Some of this is actual instructions on how to word requests so recipients are less likely to wonder about their Fourth Amendment rights. And some of this is Ring itself, which stores footage uploaded by users for law enforcement perusal.
If it seems like a warrant might slow things down -- or law enforcement lacks probable cause to demand footage -- Ring is more than happy to help out. Footage remains a subpoena away at Ring HQ. And, more disturbingly, anything turned over to police departments comes with no strings attached.
Statements given to Sen. Edward Markey by Amazon indicate footage turned over to cops is a gift that keeps on giving.
Police officers who download videos captured by homeowners Ring doorbell cameras can keep them forever and share them with whomever theyd like without providing evidence of a crime, the Amazon-owned firm told a lawmaker this month.
Brian Huseman, Amazon's VP of Public Policy, indicates the public is kind of an afterthought when it comes to Ring and its super-lax policies.
Police in those communities can use Ring software to request up to 12 hours of video from anyone within half a square mile of a suspected crime scene, covering a 45-day time span, Huseman wrote. Police are required to include a case number for the crime they are investigating, but not any other details or evidence related to the crime or their request.
Ring itself maintains that it's still very much into protecting users and their safety. Maybe not so much their privacy, though. The company says it takes the "responsibility" of "protecting homes and communities" very seriously. But when it comes to footage, well that footage apparently belongs to whoever it ends up with.
Ring "does not own or otherwise control users videos, and we intentionally designed the Neighbors Portal to ensure that users get to decide whether to voluntarily provide their videos to the police.
It's obvious Ring does not "control" recordings. Otherwise, it would place a few more restrictions on the zero-guardrail "partnerships" with law enforcement agencies. But pretending Ring owners are OK with cops sharing their recordings with whoever just because they agreed to share the recording with one agency is disingenuous.
Ring's answers to Markey's pointed questions are simply inadequate. As the Washington Post article notes, Ring claims it makes users agree to install cameras so they won't record public areas like roads or sidewalks, but does nothing to police uploaded footage to ensure this rule is followed. It also claims its does not collect "personal information online from children under the age of 13," but still proudly let everyone know how many trick-or-treaters came to Ring users' doors on Halloween. And, again, it does not vet users' footage to ensure they're not harvesting recordings of children under the age of 13.
The company also hinted it's still looking at adding facial recognition capabilities to its cameras. Amazon's response pointed to competitors' products utilizing this tech and said it would "innovate" based on "customer demand."
While Ring's speedy expansion would have caused some concern, most of that would have been limited to its competitors. That it chose to use law enforcement agencies to boost its signal is vastly more concerning. It's no longer just a home security product. It's a surveillance tool law enforcement agencies can tap into seemingly at will.
Many users would be more than happy to welcome the services of law enforcement if their doorbell cameras captured footage of criminal act that affected them, but Ring's network of law enforcement partners makes camera owners almost extraneous. If cops want footage, Ring will give it to them. And then the cops can do whatever they want with it, even if it doesn't contribute to ongoing investigations.
These answers didn't make Sen. Markey happy. Hopefully, other legislators will find these responses unsatisfactory and start demanding more -- both from law enforcement agencies and Ring itself.
Filed Under: doorbell, ed markey, police, privacy, ring, videosCompanies: amazon, ring
Draft legislation to regulate government use of facial recognition software was unveiled and subsequently abandoned Wednesday after some lawmakers worried it did not do enough to protect privacy.
The issue erupted in July when a report from Georgetown Universitys Center on Privacy and Technology revealed the Utah Department of Public Safety ran more than 1,000 searches through the state drivers license database at the request of federal law enforcement agencies. During many of the searches, images of criminal suspects were run through the database, which contains millions of photos of Utahns, in order to find a potential match.
DPS later admitted that it also runs every new drivers license photo including images of minors through the database in order to prevent fraud.
But none of that is an issue for Sen. Daniel Thatcher, R-West Valley City.
I want to make sure that someone is not getting a fake ID, Thatcher said. So I personally have no problem with my face being searched 2,000 times a day to ensure that were not supporting people in identity theft and identity fraud.
A draft bill he spearheaded would have required the Drivers License Division to disclose the searches on new license applications, but would not have limited those searches in any way.
But Thatcher was largely focused on regulating new technology he said is coming up quick and could be used in surveillance. His bill would have prohibited the use of facial recognition systems to conduct surveillance in public spaces without a warrant. A similar bill was recently introduced by U.S. Sens. Mike Lee, R-Utah, and Chris Coons, D-DE, at the federal level.
But Utah lawmakers on both sides of the aisle had lingering concerns about the regular searches in the drivers license database and whether they violate the Fourth Amendment, which protects against unreasonable searches and seizures.
Rep. Andrew Stoddard, D-Sandy, said running photos of criminal suspects through the database is akin to pulling over every driver when you got a tip that one car in this area has some illegal contraband in it, so you subject everyone to this search.
Thatcher disagreed, saying he believes the Fourth Amendment protects against physical interactions with law enforcement such as interrogations and blood draws, not using a government-issued ID in a database search.
When someone is pulled over, they are physically detained. Their right of movement has been restricted, he said. The idea that were stopping every single Utahn 2,000 times a day to me, that doesnt connect.
Rep. Brady Brammer, R-Highland, said most committee members were concerned with the use of the database to search for matches of criminal suspects.
Were basically taking a drivers license, which is not a criminal proceeding, not a criminal license, and youre allowing it to be used in searches for criminal issues, and thats a Fourth Amendment issue, he said.
Brammer suggested an amendment requiring a warrant in searches requested by law enforcement, an idea Thatcher shot down.
When it appeared the bill would not get enough support to pass, the committee adjourned without voting on it. Afterward, Thatcher said he is not interested in making any changes to the legislation and will abandon it, though he expects a different lawmaker will take up the issue in the 2020 legislative session.
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Right now, cops can easily track and pull over millions of people not because theyre swerving or speeding, but because theyre driving a car registered to a person with a suspended license.
Now, the Supreme Court could soon put an end to those traffic stops to uphold drivers Fourth Amendment rights, which protect against unreasonable searches or seizures. It's not always clear that the driver of the car is also the registered owner, which means people could get pulled over even if they weren't doing anything wrong.
The case, Kansas v. Glover, addresses whether cops can pull someone over because the car theyre driving is registered to someone with a suspended license. To initiate these stops, police rely on the assumption that a cars driver is also its owner, but drivers often share cars with their family members or friends. And being pulled over can subject them to searches or arrests they may not have otherwise had to deal with.
Thats especially dangerous for people of color, according to advocates. Black men like Philando Castile, Walter Scott, and Samuel Debose were shot and killed by police in what started as routine traffic stops.
The consequences for black drivers here are enormous when an officer is operating on an assumption that may or may not be true, said said Lisa Foster, the co-director of the Fines and Fees Justice Center, which participated in a brief urging the Supreme Court to put an end to the stops. We know that black drivers get pulled over in some studies, at ten times the rate of white drivers; we know black drivers are more likely once theyre pulled over to be searched.
Police say pulling someone over for a suspended license is necessary because the driver might be actively committing a crime, and the officer can always let the person go if theyre wrongly identified. Officers also want to be able to freely use automatic license plate readers which have become standard in even the smallest police departments over the last decade to pull someone over when its too difficult to manually scan a license plate, search for a description of the driver, and match that description.
But at least 11 million licenses across the country are suspended solely because of unpaid court or traffic debts and not because the indebted person is a dangerous driver, according to the Free to Drive campaign. That doesnt even include people who have lost their licenses over unpaid child support, minor drug crimes, or other non-traffic offenses.
The consequences for black drivers here are enormous."
Before automatic license plate readers, cops often only discovered a drivers license was suspended after they had pulled them over for some other traffic violation. And if the Supreme Court affirms the practice of pulling over anyone suspected of driving with a suspended license, police will essentially have a database of cars ready to stop, according to William Maurer, the managing attorney for the Institute for Justices office in Washington state. The non-profit law firm joined with the Fines and Fees Justice Center in urging he Supreme Court to reconsider the stops.
It creates a two-tiered justice system: People who are able to afford the fines and fees debt that accompany things like traffic tickets and parking tickets will not feel this intrusion, Maurer said.
The case stems from a 2016 traffic stop where a Kansas police officer scanned the license plate of a pickup truck and noticed it was registered to a person with a suspended license. Based on the assumption that the owner of the truck was also the person driving the car, the officer pulled over Charles Glover Jr., who wasnt committing any other traffic violation. It turned out the car was Glovers, and he was cited for driving unlawfully.
But Glover appealed, arguing his Fourth Amendment rights were violated because the officer didnt have a good enough reason to pull him over. The car couldve just as easily been driven by someone who wasnt Glover, but the officer wouldnt have had any way of knowing until they had already initiated the traffic stop. The Kansas Supreme Court took Glovers side, but the state appealed to the Supreme Court.
If the Supreme Court were to rule in Glovers favor, several state attorneys general, the National Fraternal Order of Police, and even the Trump administration argue that public safety would be put at risk. But if the decision is struck down, they say cops will have the official greenlight they need to to make more routine traffic stops and keep suspended drivers off the road.
During arguments earlier this month, the Supreme Court appeared to lean toward the side taken by police and prosecutors. Justices, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., said that officers use common sense when they assume the driver of a car is also its owner and shouldnt have to rely on much else.
Reasonable suspicion does not have to be based on statistics, it does not have to be based on specialized experience. As we've said often, it can be based on common sense, Roberts said.
Cover image: Policeman pulls over a driver for speeding, getting out of police car to write a traffic ticket. (kali9 via Getty Images)
Bruce Fein, a former senior official in the Department of Justice and a constitutional scholar, has identified 12 impeachable offenses committed by Donald Trump. But, as he notes, many of these constitutional violations are not unique to the Trump administration. They have been normalized by Democratic and Republican administrations. These long-standing violations are, for this reason, ignored by Democratic Party leaders seeking to impeach the president. They have chosen to focus exclusively on Trumps attempt to get the Ukrainian president to open an investigation of Joe Biden and his son, Hunter, in exchange for $400 million in U.S. military aid and a visit by the Ukrainian leader to the White House. Ignoring these institutionalized violations during the impeachment inquiry, Fein fears, would legitimate them and lead to the death of democracy.
In a letter on Friday to House Speaker Nancy Pelosi, also signed by Ralph Nader and Louis Fisher, Fein warns that Trump is shattering our entire constitutional order. He lists as the presidents most serious constitutional violations the defiance of congressional subpoenas and oversight; spending billions of dollars on a southern border wall not appropriated for that purpose; continuing or expanding presidential wars not declared by Congress; exercising line-item veto power; flouting the Emoluments Clause; and, playing prosecutor, judge, jury, and executioner to kill any person on the planet based on secret, unsubstantiated information. But he also notes that many of these violations are not unique to Trump and were also carried out by Barack Obama and George W. Bush.
Many of the Democrats in the past have been complicit in these violations, Fein said when I reached him by phone in Washington, D.C. They have unclean hands. They have acquiesced in illegal surveillance, as revealed by Edward Snowden. The most serious constitutional violations are the ones that are institutional usurpations. These usurpations [by both parties] have permanently weakened, if not eviscerated, the power of the legislature versus the executive.
We have a Congress whose members, by and large, do not want the responsibilities the Constitution entrusts them with, Fein continued. They like to give away everything to the president and then clamor if something goes bad. The most worrisome constitutional violations are, unfortunately, ones many members of Congress rejoice in. It enables them to escape making hard choices that might compromise their ability to win reelection. But you cant rely on a past dereliction to justify its perpetuation indefinitely.
If we take a narrow approach to impeachment, that will mean that all the more egregious violations will be viewed as having been endorsed and not rebuked and successive presidents will feel they have a green light to emulate Trump on everything except a Ukrainian shakedown, Fein said. This is dangerous for the country. This could boomerang, even if we get rid of Trump, by endorsing these usurpations forever. This would be a return to a one-branch government like the monarchy we overthrew in 1776. The unwitting result is to further the [power of the] executive rather than diminish it, which is what should be happening.
Bush and Obama bequeathed to us nine illegal wars, if we include Yemen. None were declared by Congress, as is demanded by the Constitution.
Bush and Obama bequeathed to us nine illegal wars, if we include Yemen. None were declared by Congress, as is demanded by the Constitution. Bush placed the entire U.S. public under government surveillance in direct violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act (FISA), which makes it a crime for the government to surveil any American citizen without authorization by statute. Under the Executive Order 10333 the president spies on Americans as if they were foreigners, although this surveillance has not been authorized by statute. Bush embarked on a global program of kidnapping and torture, including of foreign nationals, which Obama continued. Bush and Obama carried out targeted assassinations, usually by militarized drones, across the globe. And Obama, reinterpreting the 2002 Authorization for Use of Military Force Act, gave the executive branch the authority to assassinate U.S. citizens. The killings began with drone strikes on the radical cleric Anwar al-Awlaki and, two weeks later, his 16-year-old son. Such a violation denies U.S. citizens due process. By signing into law Section 1021 of the National Defense Authorization Act, Obamawhose record on civil liberties is even more appalling than Bushs gutted the 1878 Posse Comitatus Act, which prohibits the use of the military as a domestic police force.
These two presidents, like Trump, violated treaty clauses that required Senate ratification. Obama did this when he signed the Iran nuclear deal and Trump did this when he walked away from the deal. Bush and Obama, like Trump, violated the appointments clause of the Constitution by appointing people who were never confirmed by the Senate as required. The three presidents, to override Congress, all routinely abused their right to use executive orders.
At the same time the courts, a wholly owned subsidiary of corporate power, have transformed the electoral system into legalized bribery through the Citizens United ruling, handed down by the Supreme Court in 2010. Corporations pouring unlimited money into elections was interpreted by the court as the right to petition the government and a form of free speech, essentially overturning the peoples rights by judicial fiat. Also, the courts have steadfastly refused to restore basic constitutional rights including our right to privacy and due process. The constitutional rot is in all three branches, Fein said.
The 12 impeachable offenses committed by Trump and singled out by Fein are:
1. Contempt of Congress
Trump made clear his contempt of Congress when he boasted, I have Article II, where I have the right to do whatever I want as president.
President Trump has repeatedly and unconstitutionally systematically undermined the congressional oversight power, including the ongoing congressional impeachment inquiry of the President himself, by instructing numerous current and former White House staff and members of the executive branch to defy congressional subpoenas on an unprecedented scale far beyond any previous President, Fein wrote to Pelosi. Without congressional authority, he has secretly deployed special forces abroad and employed secret guidelines for targeted killings, including American citizens, based on secret unsubstantiated information. He has unconstitutionally endeavored to block private persons or entities from responding to congressional requests or subpoenas for information, e.g., Deutsche Bank. He has refused to provide Congress information about nepotistic or other security clearances he granted in opposition to his own FBI security experts. He has refused to disclose his tax returns to the Chairman of the Ways and Means Committee contrary to a 1924 law, 26 U.S.C. 6103 (f).
2. Abuse of the Powers of the President and Abuse of Public Trust
Unlike prior presidents, he has made presidential lies as routine as the rising and setting of the sun, confounding civil discourse, truth and public trust, the memo to Pelosi reads. He has disrespected, belittled, and serially preyed upon women, mocked the disabled, incited violence against the mainstream media and critics, and encouraged and displayed bigotry towards minorities and minority Members of Congress, including intercession with Israel in serious violation of the Speech or Debate Clause, Article I, section 6, clause 1, to deny two Members visitor visas.
3. Appropriations Clause, Revenue Clause
Congress has consistently voted much less money than President Trump requested to build an extensive, multi-billion-dollar wall with Mexico, the memo reads. In violation of the Clause and the criminal prohibition of the Anti-Deficiency Act, President Trump has committed to spending billions of dollars far in excess of what Congress has appropriated for the wall. The congressional power of the purse is a cornerstone of the Constitutions separation of powers.
Article I, Section 7, Clause 1 of the Constitution requires all revenue measures to originate in the House of Representatives.
In violation of the Clause, President Trump has raised tens of billions of dollars by unilaterally imposing tariffs with limitless discretion under section 232 of the Trade Expansion Act of 1962, the memo reads. He has become a Foreign Trade Czar in imposing tariffs or quotas or granting exemptions from his trade restrictions in his unbridled discretion to assist political friends and punish political enemies. Literally trillions of dollars in international trade have been affected. Riches are made, and livelihoods destroyed overnight with the capricious stroke of President Trumps pen.
4. Emoluments Clause
Article I, section 9, clause 8 prohibits the President (and other federal officers), without the consent of Congress, from accepting any present, emolument, office, or title, of any kind whatsoever, from any King, Prince, or foreign state.
President Trump has notoriously refused to place his assets in a blind trust, the memo reads. Instead, he continues to profit from opulent hotels heavily patronized by foreign governments. He has permitted his family to commercialize the White House. He has compromised the national interest to enrich family wealth on a scale unprecedented in the history of the presidency.
5. Treaty Clause
Article II, Section 2, Clause 2 requires Senate ratification of treaties by two-thirds majorities. The text is silent as to whether treaty termination requires Senate ratification, and the Supreme Court held the issue was a non-justiciable political question in Goldwater v. Carter, 444 U.S. 996 (1979).
President Trump flouted the Treaty Clause in terminating the Intermediate-Range Nuclear Forces Treaty (INF) with Russia unilaterally, the memo reads. The treaty assigned the termination decision to the United States. The President alone is not the United States under the Treaty Clause.
6. Declare War Clause
Article I, Section 8, Clause 11 empowers Congress alone to take the nation from a state of peace to a state of war. That power cannot be delegated.
In violation of the Declare War Clause, President Trump has continued to wage or has initiated presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and has used special forces offensively in several African nations, the memo reads. President Trump has claimed authority to initiate war against any nation or non-state actor in the worldnot in self-defenseon his say-so alone, including war against North Korea, Iran, or Venezuela.
7. Take Care Clause; Presentment Clause
Article II, Section 3 obligates the president to take care that the laws be faithfully executed.
In violation of that trust, President Donald J. Trump deliberately attempted to frustrate special counsel Robert Muellers investigation of collaboration between the Trump 2016 campaign and Russia to influence the presidential election, Fein points out. Among other things, the President refused to answer specific questions relating to his presidential conduct; endeavored to fire the special counsel; dangled pardons for non-cooperating witnesses; and, urged Attorney General Jeff Sessions to reverse his recusal decision to better protect his presidency. In all these respects, the President was attempting to obstruct justice.
President Trump has also systematically declined to enforce statutory mandates of Congress by arbitrarily and capriciously revoking scores of agency rules ranging from immigration to the Consumer Financial Protection Board to the Environmental Protection Agency in violation of the Administrative Procedure Act or otherwise, the memo reads. He has routinely legislated by executive order in lieu of following constitutionally prescribed processes for legislation.
In violation of his constitutional duty to take care that the laws be faithfully executed, Mr. Trump has dismantled and disabled scores of preventive measures to save lives, avoid injuries or disease, help families, consumers, and workers, and detect, deter, and punish tens of billions of dollars of corporate fraud, the memo continues. He has disputed climate disruption as a Chinese hoax, compounded the climate crisis by overt actions that expand greenhouse gas emissions and pollution, and excluded or marginalized the influence of civil service scientists.
8. Due Process Clause
The Fifth Amendment provides that no person shall be deprived of life without due process of law.
In violation of due process, President Trump claims power, like his immediate two predecessors, to act as prosecutor, judge, jury, and executioner to kill American citizens or non-citizens alike, on or off a battlefield, whether or not engaged in hostilities, whether or not accused of crime, and whether or not posing an imminent threat of harm that would trigger a right of preemptive self-defense, the memo reads.
9. Appointments Clause
President Trump has repeatedly appointed principal officers of the United States, including the National Security Advisor and Cabinet officials, who have not been confirmed by the Senate in violation of the Appointments Clause, Article II, section 2, clause 2, the memo reads. On a scale never practiced by prior presidents, Mr. Trump has filled as many as half of Cabinet posts with Acting Secretaries who have never been confirmed by the Senate.
10. Soliciting a Foreign Contribution for the 2020 Presidential Campaign and Bribery
President Trump has endeavored to corrupt the 2020 presidential campaign by soliciting the President of Ukraine to contribute something of value to diminish the popularity of potential rival Joe Biden, i.e., a Ukrainian investigation of Mr. Biden and his son Hunter relating to potential corrupt practices of Burisma, which compensated Hunter handsomely ($50,000 per month). In so doing, Mr. Trump violated the criminal campaign finance prohibition set forth in 52 U.S.C. 30121, Feins memo reads.
President Trump solicited a bribe for himself in violation of 18 U.S.C. 201 in seeking something of personal value, i.e., discrediting Joe Bidens 2020 presidential campaign with the help of the President of Ukraine to influence Mr. Trumps official decision to release approximately $400 million in military and related assistance, it adds.
11. Violating Citizen Privacy
Government spying on Americans ordinarily requires a warrant issued by a neutral magistrate based on probable cause to believe crime is afoot, the memo reads. President Trump, however, routinely violates the Fourth Amendment with suspicionless surveillance of Americans for non-criminal, foreign intelligence purposes under Executive Order 12333 and aggressive interpretations of the Foreign Intelligence Surveillance Act.
12. Suppression of Free Speech
President Trump is violating the First Amendment in stretching the Espionage Act to prosecute publication of leaked classified information that are instrumental to exposing government lies and deterring government wrongdoing or misadventures, including the outstanding indictment against Julian Assange for publishing information which was republished by the New York Times and The Washington Post with impunity, the memo reads.
The Republic is at an inflection point, the letter to Speaker Pelosi reads. Either the Constitution is saved by impeaching and removing its arsonist in the White House, or it is reduced to ashes by continued congressional endorsement, whether by omission or commission, of limitless executive power and the undoing of checks and balances.
sourceBill Pugliano/Stringer/Getty Images
When, if ever, should police be able to gather up Google location data to track down a criminal suspect? Thats one of the questions being posed by the lawyers of an alleged Virginia bank robber, who claims local police overstepped their bounds and committed privacy violations when they requested data from Google on him and 18 others near the vicinity of the crime. Privacy advocates say the implications of this case reach far beyond the alleged burglar and could affect the rights of millions of Americans using Google products.
The robbery took place this May at a Call Federal Credit Union. Surveillance footage of the robbery obtained by CBS 6 shows the burglar, armed with a handgun, charging into the bank. The Department of Justice alleges that 24-old Okello Chatrie made off with more than $195,000 dollars.
To try and crack the case, Chesterfield police requested the location data of everyone in the vicinity of the bank within an hour of the robbery. Google complied and provided the police with anonymized data on 19 individuals within a 150-meter radius, according to NBC News. Then law enforcement started digging deeper.
Investigators narrowed down their search to nine suspects and asked Google for slightly more specific information. The search was then whittled down even further to four individuals. At this level police requested additional specific data that reportedly included user names, email addresses, and phone numbers.
With all the necessary data, police moved forward with arresting Chatrie on August 13 on charges of forced accompaniment and brandishing a firearm. Chatrie could face life in prison if convicted.
Chatries lawyer and privacy advocates object to the polices decision to target a geographic region rather than a given individual. This method of data collection, which has grown in popularity among law enforcement in recent years, is referred to as a geofence warrant.
In theory, the geofence warrant attempts to take the idea of a physical crime scene and reimagine it for an internet-connected world. But that can lead to situations where innocent bystanders may have their personal information sucked up by police in wholesale ways that wouldnt have happened before the ubiquity of internet-connected smartphones.
Individuals may be caught up in this search by merely using an Android phone, conducting an Internet search using Google, running a Google application such as Google Maps or YouTube, or even receiving an automatic weather update from an Android service, Chatries attorney, Michael Price, wrote in an October motion viewed by the Washington Post.
Chatries lawyer isnt the only only one with concerns. In an interview with Insider, ACLU staff attorney Nathan Wessler expressed concern over what appears to be a lack of accountability associated with geofence warrants.
The issue in these cases is that Google is sitting on an incredible volume of user location data, Wessler said. That information can reveal extraordinarily private details of peoples lives. Theres a real risk that without proper constraints, these requests will start to resemble the types of things the framers of the Fourth Amendment were so concerned about.
Those constitution questions persist, Wessler said, regardless of whether or not Chatrie is found guilty of robbing the bank.
Wessler also disagreed with the notion that the geographic data collection is synonymous with a physical crime scene.
When police are searching a physical crime scene, they are looking for physical evidence left behind like blood samples, Wessler said. What we are talking about here is a digital record held by a company [Google] that millions of Americans trust to take care of their most sensitive data. Police have access to a completely new capability without comparison in the history of policing.
Google defended the way it handles geofence warrant requests by police. In a statement provided to NBC News, Google explained their methods for striking a balance between protecting the privacy rights of its customers and complying with law enforcement requests.
We vigorously protect the privacy of our users while supporting the important work of law enforcement, Richard Salgado, Googles director of law enforcement and information security, the company said.
We have created a new process for these specific requests designed to honor our legal obligations while narrowing the scope of data disclosed and only producing information that identifies specific users where legally required.
Issues surrounding personal data and law enforcement have increasingly gone to court. Last year, in what was viewed as a significant win for privacy advocates, the Supreme Court rule that police must first receive a warrant before requesting cell phone tower data on individuals from telecommunications companies. That ruling was limited to cell phone towers. Still, with an ever-increasing proportion of cell phones connected to major location service apps like Google Maps, many of those same principles may apply to tech companies as well.
Googles compliance with police demands marks a notable divergence from some of its top competitors. Apple, for example, has security features in places (like the blocking of access to an iPhones Lightning port after an hour) that would make it more difficult for police to access the contents of a phone. In 2016, Apple made national headlines when it refused requests by the FBI to unlock an iPhone used by one of the shooters in the San Bernardino terrorist attack.
Wessler, the ACLU attorney, credited Google with trying to protect users, but said that there needed to be more official legislation written to ensure police dont overstep.
At the end of the day Americans shouldnt have to be put in the position of having to trust negotiations between private companies and policies to protect our rights, Wessler said. What we need is clear, strong rules from courts and lawmakers explaining whats appropriate and whats not appropriate for police to do.
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SALT LAKE CITY The Utah Court of Appeals has upheld the controversial police practice of stop and frisk.
In a ruling published Friday night, the Court acknowledged a close case, but ultimately sided with police in a challenge to the practice, which has largely come under scrutiny in other states for targeting minorities. This case involves a challenge by Bryant Robert Mitchell, a member of a white supremacist gang, who was searched in a traffic stop in Ogden last year.
Mitchell was in a vehicle that was stopped after police saw him stand up in the passenger seat of the car and yell at another person in a convenience store parking lot.
Officers later testified that Mitchell looked very upset and aggressive, and that he began to open the door of the Blazer before it had come to a stop. One of them testified that Mitchells screaming sounded indicative of an intent to get into a confrontation or a fight with the person that he was talking to,' Utah Court of Appeals Judge Ryan Harris wrote.
Police obtained consent to search the vehicle from the driver, and another passenger had a warrant, the ruling said.
Immediately after Mitchell exited the vehicle, one of the officers frisked him. During the pat-down, the officer discovered a switchblade-style knife in the pocket of Mitchells shorts. Because he was a convicted felon, Mitchell was not allowed to possess such a weapon, so the officers then arrested Mitchell for unlawfully possessing the knife. After arresting Mitchell, the officers conducted a more thorough search of his person and discovered a ball of a black tar like substance that was later confirmed to be heroin, Judge Harris wrote.
Mitchell was ultimately charged with drug and weapons possession, and the weapons charge was dropped in a plea deal. He challenged the search as a violation of his Fourth Amendment right against search and seizure.
In addition to the facts already described, one of the officers testified that, in his experience, gang members typically carry weapons, and that this knowledge was among the reasons he had decided to frisk Mitchell. For his part, Mitchell testified that his profane words to the man in the parking lot were not intended to be aggressive, and that he was just attempting to greet an old friend whom he had not seen in a while, the ruling said. (The ruling noted that police heard Mitchell shout come here you mother-er.)
In his appeal, Mitchell argues he gave no sign that he was going to be violent. The Court acknowledged the usual signs were not there. He was wearing very little clothing, officers saw no bulge in his pockets that could be perceived as a weapon, nor did he make any movement that police could have perceived as a threat. Prosecutors countered that Mitchell was an admitted member of a violent gang, had acted aggressively toward someone else and appeared to be on the verge of a fight and that police were in the process of arresting someone else when the search took place.
The Court said each factor alone isnt enough, but took the situation in its entirety.
While we consider this a close case, we are ultimately persuaded by the States position that the officers had reasonable articulable suspicion to conduct aTerry frisk, Judge Harris wrote.
Rulings by appeals courts can often have impact or set precedent for other cases that make their way through the judicial system.
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The vast majority of respondents would rather hear nothing further about impeaching President Trump.
Thats according to the latest unscientific poll here at SharylAttkisson.com.
Seventy-one percent (71%) said they would like to move on and leave impeachment talk behind.
Three percent (3%), though, said they would like to hear more about impeachment.
Read the full results below. Meantime, be sure and vote in our latest poll at SharylAttkisson.com on the home page. Look for the black box in the right sidebar or scroll way down on the mobile site!
3% More about impeachment
20% Less about impeachment
7% About the same
71% Nothing; move on
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TORRINGTON Students at Torrington High School got a surprise break from their classes Friday morning.
School administrators went room by room, asking students to leave everything where it was and head to a waiting area. While the students were out, human and K9 officers from the Torrington Police Department, Cheyenne Police Department and the Wyoming Highway Patrol conducted a search of school facilities for drugs.
The effort, a collaborative plan between Goshen County School District No. 1 Superintendent Ryan Kramer and Torrington Police Chief Tim Hurd, resulted in the issuance of six search warrants and a 16-year-old male in custody Friday on charges of possession of marijuana, tobacco and drug paraphernalia.
Officials werent responding to a rash of drugs running rampant in the hallways at THS, Hurd and Kramer said. Rather, they want to prevent just such a situation from taking place.
In my previous district, we took preventative measures to proactively bring in search dogs to look for narcotics that might be in the building, Kramer said. I talked to Chief Hurd and we discussed the possibility of doing that here in our district and what schools we could coordinate.
Considerations of student safety and student rights were foremost in Kramers and Hurds thoughts when they were planning the search, Kramer said. Students and police both two- and four-legged officers were to have no to minimal contact, he said.
At no time were individual students singled out for detailed search or questioning, until and unless one of the K9 officers indicated to his or her human partner there was something in a backpack, cabinet, drawer or vehicle indicating probable cause that warranted a further search, Kramer and Hurd said. At that time, search warrants would be secured through proper channels.
Students rights are really important, Kramer said. We are searching the school facility and vehicles that are parked on school property.
Cheyenne attorney Bruce Moats said schools generally are permitted to conduct this type of search, but thats its a sensitive area as far as student rights are concerned.
Courts have recognized less of a a fourth amendment right for students in a school setting, Moats said. But they havent ruled specifically on K9 searches.
Critics of this raise the fact that dogs can have false alerts, he said. But the courts also said school could allow suspicion-less searches as the guardians of the children entrusted to their care.
Hurd and Kramer were the only ones who knew the specifics of the plan. Friday morning, emails were sent to administrators and parents and a message was sent via the district alert system, Kramer said, to prevent any concerns about student safety. A post on the districts social media site said THS was placed in soft lock-down.
Kramer said, during a soft lock-down, students and teachers are to remain in the classroom while instruction continues. They are allowed to leave in specific situations - for an appointment or to use the restroom, for example, he said. But they must be escorted by a school administrator, Kramer explained.
Letting people know there was not an emergency situation at the school was of even greater importance following a school shooting the day before in California, Kramer said.
We wanted to let parents know this wasnt a safety issue, he said. Any time we see law enforcement at school buildings, our blood pressure increases. We worry about danger for our kids.
We wanted to let them know it was a drill activity for the purpose of finding narcotics, Kramer said. There was no specific danger or specific threat for any students or staff.
Both Hurd and Kramer have experience with similar programs at previous jobs Kramer leading a school district in Iowa and Hurd as chief in Glenrock. In both instances, taking drug interdiction K9 officers into the schools had a positive effect. Juvenile crime in Glenrock, for example, dropped precipitously after Hurd instituted the routine, surprise search efforts there, he said.
The last thing we want to do is make any arrests, Hurd said. What we really want to do is show the young adults who are students in these schools and the parents were interested in keeping them off drugs.
Were not here for sanction purposes, he said. Were here to assist the schools, to make sure the parents know were not going to tolerate narcotics in their schools and they can send their students to a safe school where narcotics are not going to be if we have anything to say about it an issue or a problem for them.
While the surprise searches work to address the bigger picture of drugs in schools, Kramers experience has led him to believe they are only a tool to address the issue of drug use by teens.
I dont think this is the primary tool I would use to alleviate that problem, Kramer said. It serves the purpose for prevention, getting that public mind out there. I dont think, in isolation, it would ever have an effect on its own on student drug use or drug use in general.
Thats why the new searches arent the only way local schools are working to curtail drugs on campuses, student drug use and other issues that might drop youth in the hands of the legal system, Kramer said. Another program this one a collaboration between the district, local police and the Goshen County Attorneys office aims to take one step beyond into intervention.
Representatives of those three entities meet weekly, to decide how to deal with a variety of issues involving young people who may come afoul of the law both in and out of school, Kramer said. The results of those meetings covering everything from drugs to drinking to truancy are used to hopefully direct students back to the proper path, he said.
Its my hope we can either get students the help they need if we do find anything, take those active rolls, Kramer said. We take those preventative measures, whatever steps we can, to ensure that.
As a school district, were looked upon as the education vehicle, he said. Law enforcement has their duties, what theyre required to do and what their expectations are. We kind of have to mesh those in a collaborative effort and it doesnt always fit perfectly.
But the legal system could be an only first step available in some instances to get those young people the help they need, Hurd said.
Making an arrest is how we get an individual into the system so they can get that treatment, so they can get that intervention, he said. Were trying to get these students or these people who have these drugs into the system so they can be court ordered to get treatment.
And Hurd believes having that presence in the school, even if some could perceive it as confrontational, can go a long way to demystify law enforcement for the students. And its part of a larger message Hurd and Kramer both want to convey.
They get to know you, they get to know who you are, Hurd said. Were here for you. If you havent done anything wrong, you have nothing to worry about.
Were here to make sure drugs dont become an option for you, if we have anything to say about it. And were here to let your parents know youre in a safe environment and to let everyone in the community know were working proactively to keep you and all the other students safe.
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The following is an excerpt from my article in The Hill.
Many will debate the substance of the public impeachment testimony against President Trump. To me, each of the Democrats witnesses of the past two weeks appeared to be well-intentioned and hard-working, and seemed genuinely to believe they know whats best.
But a picture also emerged of U.S. diplomats who appear to believe they, rather than the U.S. president, have the ultimate authority to determine our foreign policy. And if the president doesnt go along? He clearly must be wrong in their view. Or, even worse, hes a traitor. Hes to be obstructed. Taken down.
In an odd turnabout, they actually make the case for President Trumps mantra that we need to drain the swamp.
One can first look at the language witnesses used as they vented about Trumps tutelage in ways that veered far from relevance to the impeachment allegations. They conveyed hurt feelings, bruised egos and strong differences of opinion. At times, the testimony sounded a bit like a human resources conference or psychotherapy session.
The diplomatstestified that they were shocked and devastated to learn that Trump and Ukraines new president did not have faith in them. They complained that, under Trump, foreign service professionals are being denigrated and undermined and the State Department isnt getting the attention and respect it deserves. They expresseddisappointment that Trump had the nerve to defy the federal agencies by not discussing any of our interagency agreed-upon talking points in Trumps first call with Ukraines President Volodymyr Zelensky. They wereembarrassed infrontof Ukrainians when they didnt have answers about U.S. policy.(Continued)
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A 13-count federal indictment filed in court Thursday charges James W. Millegan, 62, a former Oregon securities broker, with investment account churning and tax evasion.
Millegan of McMinnville owned and operated J.W. Millegan Inc., an investment advisory business that served clients in the Portland and Salem metropolitan areas.
From March 2010 through May 2017, Millegan is accused of having bought and sold securities for clients investment accounts to generate commissions for himself. He generated more than $2.5 million in trading commissions while he cost 12 investors more than $4.3 million in unrealized investment gains, according to prosecutors.
Millegan also is accused of not paying more than $3.3 million in taxes between July 2006 and September 2016. He allegedly transferred funds to hidden bank accounts to conceal his multimillion dollars in commissions.
Millegan has not yet appeared in federal court.
The charges come more than two years after federal authorities executed a search warrant and raided Millegans home at gunpoint and took his client files, according to his lawyer. Millegan is set to make his first appearance in U.S. District Court in Portland on Dec. 6.
Mr. Millegan will appear in court as required and looks forward to clearing his name,'' said his lawyer, Oregon Federal Defender Lisa Hay. "In litigation that has already occurred, weve successfully addressed government over-reaching, failure to return property, and apparent violation of the Fourth Amendment. We look forward to continuing to protect Mr. Millegans constitutional rights and to vigorously challenging the governments allegations.
The litigation surrounding his lawyers challenge of the search warrant and seizure of Millegans files remains sealed.
-- Maxine Bernstein
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It was July of last year, and the mans daughter was to be married soon. A box of celebratory gifts clothing and perfume from family in the Middle East arrived at Buffalo Niagara International Airport customs. The man had picked up similar shipments a handful of times before, enough to know the routine: The customs office calls to let him know his items have arrived, inspects the goods, and tells him to pay an import duty at an office just 13 miles away at the Peace Bridge, which connects the U.S. to Canada.
This time, however, when he arrived at the bridge office as instructed, carrying a handwritten note from the original customs office, the man, a U.S. citizen, was detained and searched by Customs and Border Protection, he said. His phones were seized and his car rifled through. His father and cousin, who had been waiting in the vehicle, were themselves detained, ordered into the office to answer questions about their national backgrounds.
The incident, as described by the man and his attorneys, illustrates just how ready officials are to conduct invasive searches at the border, where, in the name of national security, certain due process protections normally afforded Americans under the Fourth Amendment are not observed. It also calls into question whether the man, who is Muslim, was singled out because of his faith. The man, who asked not to be named because he fears retaliation and harrassment, was not flying or otherwise crossing the border that day and did not expect to be detained while merely trying to clear a package of gifts.
CBP did not respond to requests for comment.
Every citizen of the United States is constitutionally protected against unreasonable searches and seizures but there are exceptions. Although the law demands that police interested in the contents of your car trunk or location of your iPhone first obtain a warrant, the rules change for Americans traveling through, say, an airport, or a road checkpoint along the Mexican border. This is known as the border search exception to the Fourth Amendment. In these instances, courts have ruled, law enforcement can conduct a routine search of you and your belongings, like emptying of your pockets or opening your bag at airport security, without a warrant or even cause for suspicion. Any search at the border considered non-routine a strip search, for instance requires some modicum of suspicion.
But routine or non-routine, the border search exception is grounded in traversal of the border itself, the rationale being that a governments interest in who is attempting to enter the country (and what theyre carrying) is a reasonable one. Searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, the Supreme Court ruled in a landmark 1977 border search case.
But CBPs authority isnt a blank check to subject people to invasive border-type searches if they arent actually trying to cross the border, New York Civil Liberties policy counsel Zach Ahmad told The Intercept. It is incumbent on CBP to determine when someone is actually trying to enter or leave the country.
The New York man lets call him John Doe found himself on that July day stuck in this legal gray zone, where constitutional norms are suspended and Homeland Security asserts itself unflinchingly. He and one of the attorneys, Albert Fox Cahn, discussed the incident by phone in an interview with The Intercept.
Normally when paying the import duty at the airport, Doe could simply hand over the money and drive home. In the July incident, at the CBP cashiers counter, Doe was asked where hed come from. He showed his paperwork from the customs office just 12 miles away and explained that he hadnt arrived from anywhere by plane; he was an American and a local, with no intention of crossing the border that day or any other that day.
He was asked for his identification in order to pay thesmall duty fee for his daughters gifts, and only then realized that hed left his wallet at home. When he explained this, that hed made an honest mistake and wanted only to pay the routine duty owed and depart, he was told that in fact he wasnt permitted to leave. Doe asked if he could speak to a supervisor who might be familiar with his situation a customs official at the airport had emailed ahead of his arrival but was told to go inside a detention area and nothing further. He was led to an inspection room by himself. Doe was now detained.
He was asked for his identification in order to pay thesmall duty fee, and only then realized that hed left his wallet at home. When he explained this, he was told that in fact he wasnt permitted to leave.
After sitting alone in the detention room for about an hour, Doe was questioned further by a CBP officer. Where are you from? he was asked again. Here, he repeated. Doe was asked to empty the contents of his pockets and turn them inside out in front of the officers, who took his car keys and left to search the vehicle without his permission or presence. CBP was permitted to search the car, they said, because hed driven it to their office.
Does father and cousin, whod been waiting in the car during what they thought would be a quick stop, were ordered inside to join their relative in the detention room and questioned about their nationality before being let go. Doe, alarmed by what was happening, attempted to contact his brother from his phone, only to be told he wasnt permitted to use his phone at all, and that it would be now be confiscated. The CBP officer present pressed Doe on why he had two cellphones before ordering him to hand them both over; Doe said in an interview that he simply prefers having two phones and got a good deal on them. Thats not criminal, to have two phones, he said.
Its unclear what exactly CBP did with Does devices. All he and his lawyers know for certain, they told The Intercept, is that the agency had physical possession of them for roughly 45 minutes and that for part of that time, they were placed near a CBP computer, where Doe could see them.
Cellebrite, an Israeli firm that has sold forensic software to law enforcement agencies across the country including CBP has claimed the ability to pull data from a phone and onto an agents computer at speeds of up to 1 gigabyte per minute, meaning troves of emails, texts, photos, contacts, and other sensitive personal data could be exfiltrated in a relatively short amount of time.
The rules for how such device searches are supposed to be conducted in an era when the contents of your smartphone can contain more or less a full record of your existence are a muddle. Policies adopted by CBPs organizational parent entity, the Department of Homeland Security, permit border agents to conduct a so-called basic search of your phone confined to scrolling and tapping through its screen just as you would yourself without any justification. A so-called advanced device search, using software that can break through security mechanisms like password locks and encryption and make permanent copies of data for later analysis, is permitted whenever there is reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern. These terms remain largely undefined, at least in public documents, and CBP Directive No. 3340-049A, the most recently published version of Homeland Securitys rules for rummaging through phones at the border, is rife with exceptions. For example, per the July 2018 directive, Searches of electronic devices should be conducted in the presence of the individual whose information is being examined, unless, that is, there are national security, law enforcement, officer safety, or other operational considerations that make it inappropriate to permit the individual to remain present.
Sophia Cope, a senior staff attorney with Electronic Frontier Foundation, told The Intercept that searching a person already inside the U.S. stretches the Fourth Amendments border search exception beyond recognition, adding that there is nothing in CBPs policy on border searches of electronic devices that authorizes such a search like the one Doe experienced.
Searching a person already inside the U.S. stretches the Fourth Amendments border search exception beyond recognition.
After over an hour, Doe was released. At no point had he received an explanation for his detention, the search of his car, the questioning of his relatives, or the seizure of his phones, he said. During his detention, the only thing even resembling a rationale for his treatment was a comment that the handwritten note hed brought from airport customs to the CBP facility was unusual, though no attempt seemed to have been made to contact customs to see that his story checked out. Days later, a friend recommended Doe contact the Council on AmericanIslamic Relations, where Cahn, a civil liberties and privacy attorney, took up his case, along with the New York law firm Stroock & Stroock & Lavan. Cahn, who later left CAIR to become executive director of the Urban Justice Centers Surveillance Technology Oversight Project, told The Intercept that he and his client have yet to sue the government but hope Does story will prompt others who have been subjected to border searches without even attempting to cross the border to come forward.
Weve seen a huge surge in complaints from the Muslim community describing an ongoing campaign of discriminatory searches by CBP all across the country, said Cahn. I find it hard to believe that its a complete coincidence that of all the American citizens entering that office on that day, the man who is singled out for a search happens to be a Muslim man of Middle Eastern descent, he added. I think we see a prolonged campaign to turn the border zone into a constitutional free zone. Theres a systemic disregard for the law. Cahn told The Intercept that hes flagged the matter for several high-profile DHS officials and repeatedly reached out out to the Office for Civil Rights and Civil Liberties at DHS, but has never received any substantive reply or explanation for Does detention. The DHS CRCL office referred a request for comment to the departments media office, which did not respond.
Theres no anger in Does voice when he talks about his detention but still traces of dismay and confusion. Why? Why only me? Why this time? Too many questions came to my mind. I [did] not cross the border, Im in the U.S. I hear a lot of things about U.S. customs sometime, especially as a Muslim. When they put me inside the room alone, I felt just like Id been selected as a criminal, like Ive done something wrong. If someone walked in and saw me in that room alone it made me feel guilty. What have I done?
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Posted: Oct 23, 2019 12:01 AM
The opinions expressed by columnists are their own and do not represent the views of Townhall.com.
A recently revealed court ruling received very little media attention. Most Americans are not aware that U.S. District Judge James Boasberg (an Obama nominee) issued a scathing indictment of ourfederal spy program. This ruling exposed improper searches of tens of thousands of illegal searches of raw intelligence databases, including 70,000 emails and telephone numbers, and other digital identifiers that were illegally searched. The Judge ruled that these searches were not consistent with the Fourth Amendment.
As serious as this ruling is, the media is preoccupied working on their partisan coup attempt of the Trump administration, masked as impeachment. While these liberal media hacks focus on the junk that has little impact on the American people, assaults on our liberty are a significant issue they are purposely marginalizing. Why? Keep reading.
In the months following the attacks of 9-11 the government took advantage of a nation still in shock. The government told Congress that if they only had the tools, they could prevent another attack but to do so we had to give away some essential liberties. Everybody in the media and Congress fell for it without much discussion because nobody wanted to be accused of aiding terrorists to attack again. We have to do something was the rallying cry. U.S. spy agencies knew they had an emotionally vulnerable public that could be easily persuaded to give away these essential liberties, thereby allowing the government broad surveillance authority to violate the Fourth Amendment in the name of national security. The government promised that they wouldnt abuse it even though, by its very nature, intelligence work is highly intrusive. We were also promised strict oversight. They were required to self-report when abuses were discovered. Instead, this only became public after the FBI went to an appeals court to block the judgment against them and lost. Since its inception, I opposed the Patriot Act and its ugly stepsister the USA Freedom Act. This marks, perhaps, the only time I have ever sided with the American Civil Liberties Union on a law enforcement issue.
Giving the government unbridled authority to search into our digital lives without being suspected of wrongdoing and without probable cause is not consistent with a constitutional democracy and self-rule. Its not whether the government can be trusted; instead, they should never be trusted. I believe our nations Founders also understood this. This is why we have a constitution, a pact between government and citizens limiting vast intrusions into our daily lives. I realize that government overreach has significantly expanded today, but a restrained federal bureaucracy is still the foundation of this republic.
The problem with the post 9-11 spying authority is that it allows the government to operate under a veil of secrecy. For example, the Foreign Intelligence Surveillance Act (FISA) gives the government the authority to work around the Fourth Amendment. But as we have seen with government agents requesting a search warrant or searching without one, the lack of an adversarial stage like in criminal courts, results in the loss of liberties. A core American principle is that a government working for the people must be transparent to the people. The governments claim that more transparency would hamper an investigation is nothing more than hyperbole. Nobody contests that platitude and government agents know it. Foreign Intelligence Surveillance Court- FISC judges, do not have the experience in spy operations to be able to ask pointed questions to test the validity of an agents claims. As a result, most applications for a search warrant in a FISA court are nearly unanimously approved. The congressional staff that does most of the oversight work lack the same experience about how these operations work, so they sit there and nod in agreement with whatever crap an experienced spy agency bureaucrat feeds them. Recall that the FBI went to a FISC to request a warrant to spy on the Trump campaign and were granted one based on a fake dossier. Even if an oversight committee asks relevant questions, the answer more times than not is that answering would jeopardize national security. That is coded language for, we dont want you to know because the answer would embarrass us. Thus the FISC has become a rubber stamp on government testimony in a search warrant request or in operations called sneak and peek where they search digital data without a warrant. Government agents then hide what they do by classifying it as top secret. This is a problem. As we are seeing, when no one is watching, abuse runs rampant.
An important question in these government surveillance abuses is who did it and what consequences will there be for this severe breach of peoples privacy. We never hear who specifically violated the Constitution or how they will be disciplined. Again its because the government operates in the dark. The agent responsible should be publicly named. This alone will make them think twice about skirting the Constitution because of public shame and humiliation. When a court finds that a local law enforcement officer violated someones Fourth Amendment rights, the evidence is thrown out, and that particular officers identity can be learned through public information disclosure. They can face criminal indictment under a 1983 claim for instance for violating a persons rights under the color of law or civil court sanctions. That serves as a deterrent and accountability. With federal agents engaged in surveillance operations that are hidden from public view, it becomes impossible to hold people accountable.
Apparently court decisions like this arent sexy enough for headline coverage in major newspapers or cable news. Congress currently is too preoccupied with the kabuki theater of impeachment. Will Adam Schiff call for hearings, demanding our civil liberties be protected from abuse? No. My suggestion is that they stop the political game-playing and work on something of value to the American people like their oversight responsibility of our spy agencies to prevent these abuses. I know. Wishful thinking.
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According to a ruling by the U.S. Department of Labor, several states will now be able to drug test people in certain occupations for unemployment benefits.
The new rule, which was handed down by the Trump administration on Oct. 4, gives states the option to allow people of certain occupations to pass a drug test before they can be become eligible to receive unemployment benefits. The rule is a dramatic reversal of an Obama-era policy that placed restrictions on drug testing and unemployment.
Among the states that plan to begin drug-testing certain people seeking unemployment is Wisconsin. The state's Department of Workforce Development says it currently takes seven days to receive unemployment benefits after someone first applies. However, it's unknown if the timeline could change if a drug test is involved and some officials fear any extra time could be detrimental to families in need.
"I think it's the difference between having a place to stay and an eviction," State Rep. David Bowen (D-Milwaukee) said. "I think it's the difference between having food on your table and starving."
Bowen is already nervous about his community. However, Gov. Tony Evers, a Democrat, says nothing is going to be implemented until he gets more answers.
"We need more details from the federal government before we go down that road," Evers said. "The last thing I ever want is to take away the ability to have a safety net for people that need it."
Those in favor of drug testing say the new policy could help an ongoing drug problem in Wisconsin. Proponents argue that the sooner those with substance abuse issues can be identified, the sooner and get the help they need.
"The point of having the drug screening is that first step to get you help so then you can find that independence to having a job," State Rep. Janel Brandtjen (R-Menomonee Falls) said. "There's no greater social program than having a good-paying job."
The Department of Workforce Development says it is still in the early stages of evaluating the new rules, so it doesn't have a timeline for when a new policy could be implemented in Wisconsin. But, more drug testing could be costly.
"There are still 250,000 people every year collecting unemployment benefits," said Victor Forberger, a Labor & Employment Law Attorney. "That's a lot of people subject to these kind of requirements."
Forberger says if testing goes up to 10 or 20 percent, it could mean tens of thousands of dollars a year just in testing. He also says it could result in even more expense to the state in the long run.
"If we implement the drug testing and provide drug treatment programs, the numbers would be astronomical," Forberger said. "Even with minimal positive results, you're talking maybe a thousand people who would have to get drug treatment programs. That would be a huge increase in numbers. There's a whole host of issues from the Fourth Amendment and privacy concerns because factual basis for that could be challenged in court. As a result, there could be very expensive litigation."
This story was originally published by Shaun Gallagher on WTMJ in Milwaukee, Wisconsin.
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Clark County Sheriff Joe Lombardo says a court ruling that prohibits Las Vegas Metro Police and other Nevada law enforcement agencies from making arrests based on immigration status may be seen as a setback, and is likely to be appealed to the Ninth Circuit. Until then, Metro will no longer honor its agreement with U.S. Immigration and Customers Enforcement to detain immigrants.
LVMPD awaits further direction from the appeals court; however, until the uncertainty in the law is clarified, it must cease honoring ICE detainers the release says. LVMPD will continue to work with ICE at the Clark County Detention Center in removing persons without legal status who have committed violent crimes.
I am optimistic that this change will not hinder LVMPDs ability to fight violent crime Lombardo said in the release. While the ruling can be seen as a setback, I am determined that through cooperation with our federal partners the goal of removing the worst of the worst can still be accomplished.
Southern Nevada groups have long complained that Metro hasfailed to be transparent and accountableabout its relationship with ICE.
According to the Department of Homeland Security, 78 law enforcement agencies across the countryparticipate in the 287(g) program. Those agencies arerequired to host steering committee meetings, like the one in Las Vegas Tuesday, where law enforcement agencies go over new information about the program.
Metro left immigrant and rights advocates even more dumbfounded earlier this month after a public meeting on the 287 (g) program ended in less than 10 minutes.
This is the right decision for the states largest law enforcement agency, Tod Story, executive director of the ACLU of Nevada, said in a statement about Metros decision Wednesday. Its not just inappropriate for Nevada agencies to participate in the federal governments deportation agenda, but its unconstitutional as well. Well continue to advocate for the rights of our immigrant communities, and will engage with other police agencies around the state to end their partnerships with ICE.
The ACLU has argued the Trump administration policy of detaining immigrants was based on information gleaned from flawed databases and violates the Fourth Amendment, which requires that arrests be based on probable cause.
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Two New Orleans-area sheriffs offices contracted with a company that gave them access to location data of any cell phone the agencies sought to track.
From 2015 to mid-2018, the Jefferson Parish sheriffs officewhich has jurisdiction over Louisianas second-most populous parish and also runs its jailcaptured more than 5,800 coordinates showing a cell phones location, said agency spokesperson Captain Jason Rivarde. He said the technology was used as part of criminal investigations.
Rivarde said the thousands of pings often captured location data of the same cell phone number dozens of times per day before the technology was disabled in mid-2018 by Securus Technologies, one of the nations leading providers of phone and messaging services for correctional facilities.
The contracts with Securus and the Jefferson and Orleans Parish sheriffs offices stated that the onus to collect the data legally fell on law enforcement. Despite language in the contracts that Securus makes no representation or warranty as to the legality of the technologys use, neither law enforcement agency had written policies regarding collecting, managing, or storing cell phone location data without violating peoples privacy rights.
With such powerful technology comes substantial government responsibility to build out safeguards, and it sounds like that didnt happen here, said Katie Schwartzmann, an attorney with the American Civil Liberties Unions Louisiana office.
The Orleans Parish sheriffs office, whose primary function is running the citys jail and providing courthouse security, had access to the technology from April to May of 2018, before Securus disabled it. Blake Arcuri, an attorney for the sheriffs office, said the agency did not get a chance to use the technology before it was disabled and had no written policies about it. The sheriffs office said its contract with Securus was amended in March 2018 to add the location data service because the agency learned of the new feature and sought its inclusion in any subsequent agreement, but it offered no further explanation.
The Jefferson Parish sheriffs office retrieved cell phone location data through the Securus because it provided a shortcut to the data instead of going through the service providers of cell phone users, Rivarde said.
The contracts between Securus and the Orleans and Jefferson Parish sheriffs offices show that the company gave its clients access to location data for cell phones that made or received calls from their correctional facilities. The contracts also offered to provide location data for cell phones regardless of whether the phone connected with a call at their jails. The agency simply had to provide Securus with a cell phone number, and Securus would provide that phones location data. Rivarde said the Jefferson Parish sheriffs office used the service for criminal investigations, including homicides, robbery, drug or missing persons cases, and tracking fugitives.
To my knowledge, he said, the agency did not use use Securus to track locations of calls coming in and out of the jail.
Rivarde said the Jefferson Parish sheriffs office obtained court orders for the location data that the agency retrieved through Securus. But the practice of seeking court orders for the data is not mentioned in the agencys contract with Securus. And Rivarde said they had no written policies requiring court orders to use the technology.
The Appeal requested samples of five such court orders from the Jefferson Parish sheriffs office under Louisianas Public Records Act. On Oct. 22, a commander with its Central Records and Warrants Division wrote in an email to The Appeal that the public records request for samples of court orders, are not readily accessible without more information.
The Orleans Parish sheriffs office did not respond to a public records request seeking any written notification from Securus that its cell phone location technology was disabled. The Jefferson Parish sheriffs office provided a letter to The Appeal from Securus dated May 11, 2018 stating that the company could no longer provide the location-based services because some wireless carriers were no longer allowing it.
In an email statement to The Appeal, Securus said it stopped offering the location-based service in May 2018 to all of our law enforcement customers. Securus did not respond to a question about the companys rationale for discontinuing the technology. The change, however, came just weeks before the Supreme Court ruled in Carpenter v. United States that cell phone location records are protected by the Fourth Amendment to the Constitution, and that a warrant establishing probable cause is required to obtain them.
ACLU attorney Nathan Freed Wessler argued the case and told The Appeal that the decision powerfully recognized why we need robust privacy protections for our location data, because of all the really private and sensitive parts of our lives it can reveal.
Rivarde said that from 2015 to 2018, the Jefferson Parish sheriffs office obtained approximately 500 court orders for cell phone location data through Securus. In some instances, he said, deputies got multiple court orders for a single criminal case. Rivarde said each court order was obtained through a conversation with a magistrate commissioner and not via a written affidavit thats typically required for a warrant. The orders authorized unlimited pings on a cell phone over seven days. Warrants require a written statement establishing probable cause that a crime was committed, while court orders establish a lower standard of reasonable suspicion, Chief Justice John Roberts noted in the Carpenter ruling.
Schwartzmann said the fact that the technology was used to track individuals hundreds of times raises serious constitutional concerns.
Since Securus disabled the technology in 2018, Rivarde said, deputies have begun applying for and obtaining warrants for cell phone location data from service providers.
In April and May of 2018, an automated recording warned people who called incarcerated people at the Orleans Justice Center, that the call is subject to recording and monitoring and your location information may be collected and used by corrections and law enforcement personnel. Arcuri said the technology was never used, but the disclaimer was required when the program was available for use by the sheriffs office.
Such a recorded disclaimer may not be considered proper consent, as phones are often the only way family members can communicate with a loved one in jail, Schwartzmann said.
Law enforcement agencies with access to Securuss cell phone location data technology absolutely should have had written policies to prevent abuse, said Schwartzmann.
The office needs policies to stop an officer from using this technology to track the whereabouts of his ex-wife, a politician from tracking the whereabouts of their opponents, or officers from surveilling people they just dont like, she added.
Storage of the location data once its collected should have been addressed in written policies, Schwartzmann said.
The Jefferson Parish sheriffs office also had no written policies dictating where or how long the cell phone location data obtained through Securus should be stored or who had access to it, Rivarde said. The information was handled like any other investigative measure in criminal cases, he said. Some of the data remains logged as evidence, while others remain as part of electronic files maintained by our records division.
The public needs proof that the data is securely stored with limitations on access, said Simone Levine, executive director of the criminal legal reform organization Court Watch NOLA.
In 2018, Court Watch NOLA raised concerns about the Orleans Parish sheriffs offices practice of using Securus technology to record calls between incarcerated people and their attorneys. The organization found that the Orleans Parish district attorneys office listened to attorney-client calls and used information gathered in such conversations to prosecute people, which Levine said violated attorney-client privilege.
A spokesperson for the Orleans Parish district attorneys office declined to comment to The Appeal but referred a reporter to 2005 case law, U.S. v. Lentz, which states that a disclaimer warning prisoners that a call with their attorney is subject to monitoring forfeits privilege. In 2018, the office told The Times-Picayune the calls between incarcerated people and their attorneys were not privileged and noted the recorded warning.
The fact that jailers, and potentially investigators and prosecutors, would have had access to cell phone locations without a warrant, Levine said, has all kinds of implications that could infringe on peoples rights.
Securuss statement to The Appeal referred to the location data service as a lifesaving tool, that their law enforcement clients used to find missing children, locate individuals suffering from dementia, and apprehend violent offenders. But the companys contracts with law enforcement agencies didnt provide this rationale for tracking cell phones, and Securus didnt require clients to provide a reason to collect the location data.
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