CONCORD, N.H. (Mar.10, 2017) The New Hampshire House has passeda bill that would ban material support or resources towarrantless federal spying.The vote was 199-153.

Rep. Neal Kurk and Rep. Carol McGuire, along with two cosponsors, introduced House Bill 171 (HB171). The legislation would prohibit the state or its political subdivisions from assisting a federal agency in the collection of electronic data without a warrant.

Neither the state nor its political subdivisions shall assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a persons electronic data or metadata, without that persons informed consent, or without a warrant issued by a judge and based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a judicially-recognized exception to the warrant requirement of the Fourth Amendment to the Unites States Constitution.

On Feb. 15, the full House gave HB171 initial approval with an ought to pass recommendation by a 199-153 vote. It was then referredback to the House Criminal Justice and Public Safety Committee. Under House rules, bills with certain subject matter are required to go through a 2nd committee for approval, however the Chair has the discretion to decline that 2nd referral.

Today, House House Criminal Justice and Public Safety ChairDavidWelch(r) exercised that prerogative per House Rule 46(f), and the original Feb. 15 vote stands as final House passage of the bill.

PRACTICAL EFFECT

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB171 wouldhinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in New Hampshire, it would have to proceed without state or local assistance. That would likely prove problematic.

The feds share and tap into vast amounts of information gathered at the state and local level through a programknown as the information sharing environment or ISE. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

State and local law enforcement agencies regularly providesurveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA stingrays), automated license plate readers (ALPRs), drones, facial recognition systems, and even smart or advanced power meters in homes.

Passage of HB171 would set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB171would also prohibit what NSA former Chief Technical Director William Binney called the countrys greatest threat since the Civil War.

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases rarely involve national security issues. Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is the most threatening situation to our constitutional republic since the Civil War, Binney said.

NSA FACILITIES

The original definition of material support or resources included providing tangible support such as money, goods, and materials and also less concrete support, such as personnel and training. Section 805 of the PATRIOT Act expanded the definition to include expert advice or assistance.

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in New Hampshire.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a virtual shutdown of the agency. Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB171. By passing this legislation, New Hampshire would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.

LEGAL BASIS

HB171 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. Theanti-commandeering doctrineis based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

NEXT UP

California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency requests state assistance in data collection if there exists actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information. Although that law will need further steps to put into practical effect, it set a strong foundation that HB171 would expand on for New Hampshire.

The legislation willnow move to the Senate for further consideration.

See original here:

New Hampshire House Passes Bill Banning Support for Warrantless Federal Spying Programs - Tenth Amendment Center (blog)

The Hill

ACLU challenges warrant to search Facebook page of Dakota Access opponents The Hill Further, the Fourth Amendment prohibits the government from performing broad fishing expeditions into private affairs. And seizing information from Facebook accounts simply because they are associated with protests of the government violates these ... ACLU challenges warrant to search Facebook page tied to pipeline protests in WashingtonGeekWire #NoDAPL: Police in Wash. State Win Warrant to Search Content of Protest Facebook PageThe Root ACLU Challenges Warrant to Search Data of Facebook Page for Group Protesting Dakota Access PipelineeNews Park Forest American Civil Liberties Union -American Civil Liberties Union -Facebook all 18 news articles »

Originally posted here:

ACLU challenges warrant to search Facebook page of Dakota Access opponents - The Hill

Imagine this: the government, for reasons you don't know, thinks you're a spy. You go on vacation and, while you're away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don't find any evidence that you're a spy, but they find something elseevidence of another, totally unrelated crime. You're arrested, charged, and ultimately convicted, yet you're never allowed to see what prompted the agents to think you were a spy in the first place.

Sounds like something from dystopian fiction, right? Yet it's exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub's home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, andcriticallymaking wholesale copies of his hard drives.

Agents were authorized by the secret Foreign Intelligence Surveillance Court ("FISC") to search for evidence that Gartenlaub was spying for the Chinese government. Theres only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBIs forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

There are plenty of troubling aspects to Gartenlaubs prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBIs searches of Gartenlaubs electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

Heres why: when agents copied and searched Gartenlaubs devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like plain viewan exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldnt have to ignore the dead body lying in the living room. But the way plain view works in the digital contextespecially forensic computer searchesis not at all clear. How far can cops rummage around our computers for the evidence theyre authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computerwhich the Fourth Amendment allows and a general search for evidence of criminal activitywhich the Fourth Amendment prohibits?

Our electronic devices contain decades' worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homesor, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn't turn into the type of general rummaging the Fourth Amendment was designed to prevent.

In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBIs search of Gartenlaubs hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcements electronic search powers and in protecting our right to privacy in the digital age.

View post:

Secret Court Orders Aren't Blank Checks for General Electronic Searches - EFF

For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked.

In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices:

"...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated."

That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment.

That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected:

"The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about whats going on inside the home. But thats simply not the case. Smart meters not only produce far more data than analog metersthose set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog metersbut the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it."

As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon.

See the original post here:

EFF: Data Collected From Utility Smart Meters Should Be Protected By The Fourth Amendment - Techdirt

GLENN CHAPMAN/AFP/Getty Images

This prosecution, nearly all of which remains sealed, is one of a small but growing number of criminal cases that pit modern smartphone encryption against both the Fourth Amendment protection against unreasonable search and seizure, and also the Fifth Amendment right to avoidself-incrimination. According to the judges opinion, quoting from a still-sealed government filing, "forced fingerprinting" is part of a broader government strategy, likely to combat the prevalence of encrypted devices.

Last year, federal investigators sought a similar permission to force residents of two houses in Southern California to fingerprint-unlock a seized phone in a case that also remains sealed. In those cases, and likely in the Illinois case as well, the prosecutors' legal analysis states that there is no Fifth Amendment implication at play. Under the Constitution, defendants cannot be compelled to provide self-incriminating testimony (what you know). However, traditionally, giving a fingerprint (what you are) for the purposes of identification or matching to an unknown fingerprint found at a crime scene has been allowed. It wasnt until relatively recently, however, that fingerprints could be used to unlock a smartphone.

However, unlike the California warrant applications, this case doesnt involve one particular seized device to check to see if anyones fingerprint unlocks it. Rather, authorities seem to be using the particular fact that most modern Apple iPhones and iPads can be unlocked and decrypted if Touch ID is enabled. While some Android devices also have a similar fingerprint scanning function, the warrant application (which remains sealed) apparently only sought out Apple devices. (Under both operating systems, the fingerprint unlock stops working after your phone has been unlocked for 48 hours.)

As the judge, who is both a former federal prosecutor and a former FBI special agent,wrote:

The request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

First, the Court finds that the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.

This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.

Neither the Department of Justice nor the FBI immediately responded to Ars request for comment. Prosecutors could seek to appeal the opinion to a more senior judge.

"As I read the opinion, the government relies on old fingerprinting cases to argue that the Fourth and Fifth Amendments dont stand in the way of what they are seeking to do here," Abraham Rein, a Philadelphia-based tech lawyer, told Ars by e-mail.

"But (as the court points out) there is a big difference between using a fingerprint to identify a person and using one to gain access to a potentially vast trove of data about them and possibly about innocent third parties, too. The old fingerprinting cases arent really good analogs for this new situation. Same is true with old cases about using keys to unlock lockshere, were not talking about a key but about part of a persons body."

Orin Kerr, a well-known privacy and tech law expert and a professor at George Washington University, told Ars that the judge had largely reached the right result, but only on Fourth Amendment, and specifically not Fifth Amendment grounds.

"I just think that it's really clear that [fingerprints are] not testimonialbecause youre not using your brain," he said. "It cant be testimonial if you can cut their finger off."

Similarly, Paul Rosenzweig, an attorney and former Homeland Security official, argued that its essentially impossible for a fingerprint, even a digital fingerprint, to have any Fifth Amendment implications.

"We could have gone down the road of saying that providing physical evidence is testimony against yourself," he said. "But we long ago made the decision that the Fifth Amendment applied to testimony, and testimony meant only oral utterances or other things that conveyed a message. For this distinction lies at the core of Breathalyzer tests. If we roll that back, Breathalyzer tests go out the window. Blowing your air would be testifying against yourself."

Riana Pfefferkorn, one of the lawyers who first found this judicial opinion and publicized it on Twitter, told Ars that part of the problem with these types of cases is that this cutting edge of judicial analysis is largely happening "outside the public eye."

"In many instances, there may be little or no legal analysis by the court when it approves a request for a search warrant or other court order," she wrote. "Examples like this may be the tip of an iceberg. I hope that more judges will join this Illinois judge in not only conducting a thorough legal analysis of novel requests for gathering electronic evidence, but also publishing those opinions publicly."

Yet another lawyer suggested that cases like this would push companies like Apple to harden their devices even further: rather than allow a simple fingerprint to unlock a phone, future versions of its software will likely require a fingerprint or other biometric in combination with a traditional passcode.

"I think we will see authentication systems evolve with these kinds of mass searches (not to mention border searches and the like) as a new part of the threat model of unauthorized access," Blake Reid, a law professor at the University of Colorado, told Ars. "An additional risk of what the government is doing here is creating incentives for manufacturers to design authentication systems that are less susceptible from a technical and architectural perspective to these types of searches."

Follow this link:

Judge: No, feds can't nab all Apple devices and try everyone's ... - Ars Technica

Letter to the editor: Fourth Amendment for Americans Post Register Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this ...

Here is the original post:

Letter to the editor: Fourth Amendment for Americans - Post Register

A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning why.

I. The New Opinion

In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.

The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.

Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cell phones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:

[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.

II. My Analysis the Fourth Amendment Issues

I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.

A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.

This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.

If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate pre-approval will help trigger the good faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the pre-approval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate pre-approval of something they have no authority to pre-approve to change whether the exclusionary rule applies.

Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.

I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.

II. My Analysis the Fifth Amendment Issues

On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and TouchID . That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.

There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are ten phones, and you have to pick out your phone and unlock it with TouchID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.

The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get to lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.

Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply, the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.

Continued here:

Judge rejects warrant provision allowing compelled thumbprints to ... - Washington Post

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Last month actor Mark Hamill, an advocate of gun control, posted this tweet to his nearly one million followers:

Dont get me wrong, as a strong supporter of the 2nd Amendment [sic]I believe in every Americans right to own a musket.

In doing so, Hamill was repeating an anti-gun argument thats frequently heard and is surprisingly widespread.

This argument says that the Second Amendment was written over two centuries ago, before todays modern firearms had been invented. Therefore, the Second Amendment only protects a right to keep and bear muskets and other primitive firearms common at the time.

You might think that this is a satirical remark, more snarky than a real argument.

Yet many opponents of the right to keep and bear arms actually intend this as a serious argument. Even those who use it half-jokingly often believe it makes a legitimate point.

For example, journalist Piers Morgan tweeted this in 2012:

The 2nd amendment was devised with muskets in mind, not high-powered handguns & assault rifles. Fact.

I could cite many more. Versions of this argument are circulating on the Internet.

How might libertarians effectively respond to this? One obvious way is to apply the same logic to other amendments.

The First Amendment, which defends freedom of speech and freedom of the press, was written before the Internet, television, radio, DVDs, cell phones and other forms of personal and mass communication.

Yet most Americans, especially liberals and progressives who favor gun control, certainly recognize that the First Amendment protects such modern communication as well.

No First Amendment activist would argue that a newspaper must be printed on 18th century technology to have First Amendment protection. What could be sillier?

Similarly, most reasonable people see that the Fourth Amendment protection of privacy clearly applies to modern technology such as cellphones, laptops, and so on.

In some circumstances, it may also be useful to point out that this issue has already been settled and quite forcefully by the Supreme Court.

In fact, in the landmark 2008 District of Columbia v. Heller decision, the Court declared this argument was bordering on the frivolous.

Wrote the Court:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

The Supreme Court drove the point home just last month in Caetano v. Massachusetts, which concerned a woman who carried a stun gun for self defense:

While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century, and semiautomatic pistols were not invented until near the end of that century. Electronic stun guns are no more exempt from the Second Amendments protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.

These are powerful, even devastating, arguments from logic, history and authority that pretty much lay waste to the argument that the Second Amendment is limited to protecting our right to black powder muskets. But theres one more important point to make.

We should always remember our purpose as communicators. In most communications and conversations, we should seek to win others to our side, not just to win arguments.

So, rather than just responding with the powerful arguments above, take a moment first to listen to those making these arguments and try to uncover their genuine concerns. Are they worried about our society becoming more violent? Are they fearful of more children being victims of mass shootings? Are they advocates of nonviolence who have adopted an anti-gun position?

These are all legitimate, admirable, understandable concerns. Let your listeners know that you share their concerns (if you do) and then point out that there are libertarian answers solutions to all of them. By identifying and addressing the underlying concerns, you can try to win them to our side, or at least to a better and more sympathetic understanding of our views. Thats a lot better than merely winning an argument, but making a permanent enemy.

If the conversation allows it, you could go even further and point out that, to many libertarians, the right to keep and bear arms is rooted in the fundamental libertarian idea that people should be free to do anything they wish as long as they dont harm others. A conversation that reaches this level can be very rewarding.

There are specific communication methods you can use to respond in such effective ways, and I have compiled many of the best of them in my book How to Be a Super Communicator for Liberty: Successfully Sharing Libertarian Ideas.

Please check it out.

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Fourth Amendment - The Advocates for Self-Government

The Supreme Court struggled Tuesday to define limits to the Constitutions Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.

Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the courts liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.

You have a very sympathetic case, Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.

Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.

The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections dont apply in this case.

Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an ongoing domestic routine law enforcement issue that needs to be solved.

Were here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border, he said.

He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.

Ahead of Tuesdays oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.

But the justices didnt stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldnt open a whole category of lawsuits against U.S. troops who create collateral damage.

How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Chief Justice John G. Roberts Jr. asked Mr. Hilliard.

Justice Ruth Bader Ginsburg waved aside those concerns, saying thats a military operation that could be distinguished from a border encounter involving a federal law enforcement officer.

The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.

The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico though the ground where he fell is clearly on the Mexican side, the attorneys said.

Some of the courts liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures and in this case unlawful death would apply.

But Randolph J. Ortega, Mr. Mesas attorney, said the matter of the border cant be minimized.

Wars have been fought to establish borders. The border is very real, he said.

Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the familys lawsuit in court.

See more here:

Supreme Court considers parents' rights after boy killed by agent across Mexican border - Washington Times

U.S. Supreme Court justices may offer a preview of how they would approach President Donald Trumps travel ban when they take up a case involving a shooting across the Mexican border.

The high court on Tuesday will hear an appeal from the parents of Sergio Hernandez, a Mexican teenager who was shot to death by a U.S. Border Patrol agent in 2010.

At issue is whether constitutional protections apply to Hernandez even though he wasnt in the U.S. when he was shot. The question is a variation of one of the central issues in the legal fight over the stalled travel ban, which Trump has promised to revise by issuing a new order this week.

Hernandez, 15, was shot while in a culvert whose center is the international border between El Paso, Texas, and Juarez, Mexico. His parents say Sergio and his friends were playing a game that involved running up the incline on the U.S. side, touching the fence there and then running back into Mexican territory.

The FBI at one point said the youths were throwing rocks, although Hernandezs parents say video evidence refutes that account. The parents say they should be able to sue under the Constitutions Fourth and Fifth Amendments.

"This court should make clear that our border is not an on/off switch for the Constitutions most fundamental protections," the parents argued in court papers.

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In both cases, a key precedent is a 2008 Supreme Court decision that said inmates being held at Guantanamo Bay, the U.S. naval base in Cuba, have constitutional rights and may seek release in federal court.

Justice Anthony Kennedy cast the deciding vote in that case, saying the overseas reach of the Constitution was governed by "functional" considerations, not formal questions about sovereign borders.

The case will be the first Supreme Court argument since Trump became president Jan. 20. Although Trump has diverged sharply from former President Barack Obama on border and immigration issues, the case will showcase continuity, rather than change, from one administration to the next.

In a brief filed before the inauguration, the Obama administration urged the court to throw out the lawsuit. Government lawyers pointed to a 1990 Supreme Court ruling that said the Fourth Amendment didnt apply to the search of a Mexican citizens property in Mexico by U.S. drug agents.

That ruling "held that the Fourth Amendment generally does not apply to aliens abroad," the government said. Deputy Solicitor General Edwin Kneedler, a longtime Justice Department lawyer, will press that argument in court Tuesday.

The government also argues that the Hernandez family lacks the legal right to sue, no matter how far the Constitution reaches. While a 1971 Supreme Court ruling lets victims of police misconduct in the U.S. sue on a claim their Fourth Amendment rights were violated, the government says that ruling shouldnt be extended to cover foreigners abroad.

The case is one of several on the courts docket touching on issues that could arise should Trumps immigration and deportation policies reach the Supreme Court. The court in November considered whether foreigners have a right to periodic bond hearings while they are in custody during deportation proceedings.

Another case argued in January asks whether foreigners who were detained for months after the Sept. 11 attacks can sue former Attorney General John Ashcroft and other officials. The court will decide the cases by June.

"The court is really grappling this term with a bunch of questions that are also implicated" by the travel ban, said Stephen Vladeck, a University of Texas law professor who is helping represent the Hernandez family. "I have to think that theyre not unaware of the connection."

The border-shooting case is Hernandez v. Mesa, 15-118.

Read more here:

Trump Travel Ban Awaits as High Court Hears Border-Shooting Case - Bloomberg

ABA Journal's Blawg 100 (2015-2016)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-17, online since Feb. 24, 2003

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: --Electronic Communications Privacy Act (2012) --Overview of the Electronic Communications Privacy Act (2012) --Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment." Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! ---Pep Le Pew

Excerpt from:

WaPo: The Fourth Amendment at the border and beyond: A few ...

The case stemmed from a 2015 arrest in Grove City. CEE-VI Drug and Gang Task Force agents had an arrest warrant for Leona Rose deLottinville, then 27, of Grove City. It was alleged that she had violated court-ordered conditions of release.

With information that deLottinville was at her boyfriend's Grove City home, officers went there on March 24, 2015, where they allegedly saw deLottinville through a glass patio door.

One officer opened the unlocked door, went inside the home, and arrested deLottinville.

Marijuana and a bong were sitting in plain view on a countertop.

After deLottinville's arrest, officers obtained a search warrant for the home and allegedly found marijuana, meth, hydrocodone pills and drug paraphernalia. She was charged with two additional counts of fifth-degree drug possession, and possession of drug paraphernalia.

In Meeker County District Court, deLottinville submitted a motion to dismiss all of the charges on the grounds that police should not have been allowed to enter the home.

Judge Stephanie Beckman granted the motion, and dismissed all charges against deLottinville in August 2016. Even as a short-term guest, Beckman stated, deLottinville had an expectation of privacy in the home.

The Minnesota Court of Appeals reversed that ruling, arguing that a guest in a home does not have a right to more privacy than the homeowner.

That decision was appealed to, and upheld by, the Minnesota Supreme Court, which issued the ruling Wednesday.

Justice David L. Lillehaug authored the opinion filed with the ruling.

In the Payton v. New York ruling, he wrote, the U.S. Supreme Court determined that an arrest warrant was grounds to enter the home in which that individual lives to arrest them.

What was not determined, Lillehaug wrote, was "whether the same holds true when the subject of an arrest warrant is believed to be present in another person's home."

The U.S. Supreme Court also previously ruled that an arrest warrant for a guest in a home does not justify searching the home. In that case, a search warrant would be required.

The case ruled upon on Wednesday, then, involved a window that had not yet been defined: What are a guest's rights inside a home?

Lillehaug wrote that even though the home is traditionally where an individual has a right to privacy, police can still enter to execute an arrest warrant. That constitutional reasoning should not change when the individual is in a home other than their own, Lillehaug wrote.

"A guest should not receive any greater Fourth Amendment protection when outside her home than when inside it," he wrote.

Justice Margaret H. Chutich dissented from the ruling.

She disagreed with the Supreme Court's application of the Payton v. New York ruling in the current case.

"This unwarranted extension of Payton fails to apply later Fourth Amendment precedents," Chutich wrote, "and fails to protect the right of a host from unreasonable governmental intrusion into the sanctity of her home, a right at the 'very core' of the Fourth Amendment."

The Fourth Amendment to the U.S. Constitution prohibits unreasonable search and seizure.

In the opinion, Lillehaug had acknowledged that, with the ruling, there would be "potential for abuse." But he said that in this case, deLottinville was visible to the officer before he entered the home. There was no evidence of abuse, he said.

Chutich wrote that that potential for abuse "is not merely theoretical."

"Minnesotans would certainly be surprised to realize that the police can enter their homes at any time with nothing more than an arrest warrant for an overnight guest, or even a short-term social guest," she said.

The rest is here:

Minn. Supreme Court reverses Meeker County fourth amendment case - West Central Tribune

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

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

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

http://yourdailyjournal.com/wp-content/uploads/2017/02/web1_oliviadonaldsonjpg.jpg

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The rest is here:

StingRay is why the 4th Amendment was written - Richmond County Daily Journal

Imagine you are in the middle of your typical day-to-day activities. Maybe you are driving, spending time with family, or working. If you are like most people, your phone is at your side on a daily basis. Little do you know that, at any time, police and law enforcement could be looking at information stored on your phone. You havent done anything wrong. You havent been asked for permission. You arent suspected of any crime.

The StingRay

Police have the power to collect your location along with the numbers of your incoming and outgoing calls and intercept the content of call and text communication. They can do all of this without you ever knowing about it.

How? They use a shoebox-sized device called a StingRay. This device (also called an IMSI catcher) mimics cell phone towers, prompting all the phones in the area to connect to it even if the phones arent in use.

The police use StingRays to track down and implicate perpetrators of mainly domestic crimes. The devices can be mounted in vehicles, drones, helicopters, and airplanes, allowing police to gain highly specific information on the location of any particular phone, down to a particular apartment complex or hotel room.

Quietly, StingRay use is growing throughout local and federal law enforcement with little to no oversight. The ACLU has discovered that at least 68 agencies in 23 different states own StingRays, but says that this dramatically underrepresents the actual use of StingRays by law enforcement agencies nationwide.

The Violation

Information from potentially thousands of phones is being collected every time a StingRay is used. Signals are sent into the homes, bags, and pockets of innocent individuals. The Electronic Frontier Foundation likens this to the Pre-Revolutionary War practice of soldiers going door-to-door, searching without suspicion.

Richard Tynan, a technologist with Privacy International notes that, there really isnt any place for innocent people to hide from a device such as this.

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

The StingRay clearly violates these standards. The drafters of the Constitution recognized that restricting the government from violating privacy is essential for a free society. Thats why the Fourth Amendment exists. The StingRay is creating a dangerous precedent that tells the government that its okay for them to violate our rights. Because of this, freedom is quietly slipping out the window.

Little Regulation

Law Enforcement is using StingRays without a warrant in most cases. For example, the San Bernardino Police Department used their StingRay 300 times without a warrant in a little over a year.

A handful of states have passed laws requiring police and federal agents to get a warrant before using a StingRay. They must show probable cause for one of the thousands of phones that they are actually searching. This is far from enough.

Additionally, there are many concerns that agents are withholding information from federal judges to monitor subjects without approval bypassing the probable cause standard laid out in the Constitution. They even go as far as to let criminals go to avoid disclosing information about these devices to the courts.

If the public doesnt become aware of this issue, the police will continue to use StingRays to infringe on our rights in secret and with impunity.

Olivia Donaldson is a recent high school graduate that is currently opting out of college and participating in an entrepreneurial program called Praxis. Originally published at fee.org.

http://yourdailyjournal.com/wp-content/uploads/2017/02/web1_oliviadonaldsonjpg.jpg

.

Excerpt from:

Richmond County Daily Journal | StingRay is why the 4th ... - Richmond County Daily Journal

The Supreme Court will hear arguments next week in a Fourth Amendment case, Hernandez v. Mesa. The facts of the case are simple. At the border that separates El Paso, Tex., from Ciudad Jurez, Mexico, a U.S. border patrol agent named Mesa shot and killed a Mexican citizen named Hernandez. The bullet itself crossed the border, as Mesa was on U.S. land and Hernandez was on Mexican land. A subsequent lawsuit was filed by Hernandezs parents, as successors-in-interest to his estate, alleging excessive force under the Fourth Amendment.

The cert petitionarticulated two questions to be decided:

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendments prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

May qualified immunity be granted or denied based on factssuch as the victims legal status unknown to the officer at the time of the incident?

When the court granted cert, the court added a third question drafted by the court itself: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

Here are a few thoughts about the case.

One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad. As I explained in my recent article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 28 (2015), the basic structure of what kind of Internet surveillance is permitted hinges on the question.

Under the rule of the majority opinion in Verdugo-Urquidez the so-called formalist approach you get one framework with some significant uncertainties but a lot of results settled. On the other hand, under Justice Anthony Kennedys impracticable and anomalous test the so-called functional approach no one really knows what the Fourth Amendment would look like in the context of global network surveillance. And because those cases come up for litigation so rarely, it would take many years for courts to figure out the answers (by which time the technology may have changed anyway).

From that perspective, the odd part about Hernandez v. Mesa is that it asks the court to decide between the formalist and functionalist approaches in a setting that appears to implicate almost none of the real stakes of the answer. The facts of a shooting across the border are like a law school exam. They raise interesting questions, but the context seems pretty idiosyncratic. In contrast, the application of the functionalist or formalist approach has a massive day-to-day impact on global Internet surveillance. Its there, not in the context of a cross-border shooting, that the Fourth Amendment question in Hernandez seems to matter most.

Hernandezs brief argues that the court can and should apply or not apply individual parts of Fourth Amendment doctrine to non-citizens abroad depending on whether doing so would be impracticable or anomalous. But I dont see how this is at all workable. As I explain in a forthcoming article, Fourth Amendment rules are deeply path-dependent. The rules on what is a search impact the rules on what is reasonable, and vice versa; and they together impact the available remedies, and the remedies have an impact on them. In an area of law that is as exquisitely fact-sensitive as the Fourth Amendment, I dont know how you could tell whether a particular doctrines application would be impracticable or anomalous. Assuming you had an empirical way to answer that in the abstract, the answer would depend on what the other doctrines are, and without knowing if their application to non-citizens abroad would be impractical and anomalous, I dont know how you could tell.

Hernandez tries to avoid these problems by suggesting a very narrow holding. The reply brief advocates the following narrow rule: [T]he prohibition on unjustified deadly force applies at (and just across) the border, at least when a law-enforcement officer on U.S. soil fires his weapon at close range. But this attempted narrowing just makes the problem much worse. Its bad enough to figure out how the impracticable or anomalous framework should apply doctrine by doctrine. Hernandez seems to want to apply it fact pattern by fact pattern, imposing some essentially arbitrary definition of the relevant set of facts.

Think closely about Hernandezs proposed rule. In his far narrower view, the rule of extraterritorial liability advocated for in this case would apparently apply notto all excessive-force claims brought by non-citizens, but only to claims of unjustified deadly force brought by them; not outside the United States generally, but only at the specific location of at (and just across) the border; and maybe (although maybe not!) only to the narrower circumstance when the U.S. officer fires his weapon at close range. The phrasing of the question presented in the cert petition suggests another possible limitation: Maybe it applies only to shooting a person who is an unarmed Mexican citizen. As to the rule that would apply to any other facts, well, hey, courts will have to figure those out over time.

That seems kind of nuts to me. If any court can pick the set of facts over which aproposed rule of extraterritorial applicationcontrols, the result will be that any Ninth Circuit lower-court judge can just pick the result he or she wants in any case. If Judge Reinhardthas a case and wants to hold the defendants liable, he can drawthe category of facts in a stylized way so that application of the Fourth Amendment doesnt seemimpracticable. If another judge wants to rule against the plaintiffs, she can draw the category of facts differentlyso that it does. That strikes me as really problematic.

All of which is to say that I hope the court sticks with the majority opinion in Verdugo-Urquidez. Not only is itrelatively clear, but alsoI personally tend to think it isbased on apersuasive social contract approach to rights.

The Fourth Amendment issue in Hernandez is made more interesting by a practical point: Its not clear whether other members of the courtbeyond Kennedy agree with using theimpracticable or anomalous test in the Fourth Amendment context. It sometimes happens that other justices are willing to sign on to a Kennedy opinion with reasoning that they dont particularly agree with, if its needed to get to a five-justice majority. But that doesnt always happen, and it could happen either way in this case (with Kennedy applying the impractical or anomalous test in favor of either the petitioners or respondents). If the court reaches the merits, it will be really interesting to see where the votes will come out on that issue.

Finally, its not at all obvious that the court will reach the Fourth Amendment merits. The court added the Bivens question on its own, and the Solicitor Generals Office brief took the hint and made that the lead argument in its brief. The Bivens issue takes up fully 20 pages of the argument section in the governments brief, as compared with 15 pages for the Fourth Amendment merits and eight pages for the qualified-immunity issue. Well have to wait and see which issue draws the justices attention.

As always, stay tuned.

Read the rest here:

The Fourth Amendment at the border and beyond: A few thoughts on Hernandez v. Mesa - Washington Post

Enlarge / Brad Smith, Microsoft's top lawyer (left), seen here speaking with CEO Satya Nadella on November 30, 2016.

Jason Redmond / Getty Images News

Microsoft'scase has drawn support from a number of major tech companies, including Apple, Twitter, Google, and Snapchat, among others.

The lawsuit first began nearly a year ago.Microsoft sued, arguing that when the government presents it with legal demands for user data held in online storage, those court orders often come with a gag order that has no end date. Because Microsoft is effectively forbidden from alerting its customers, even well after the fact, that such a data handover took place, the company alleged that its customers' First and Fourth Amendment rights are consistently violated.

In earlier court filings, Microsoft argued that in data or document handover situations prior to cloud storage, the "government had to give notice when it sought private information and communications, except in the rarest of circumstances." Effectively, the companyclaimed, this means the government expanded its ability to conduct "secret investigations."

But in a Wednesday ruling, Judge Robart found largely in Microsofts favor.

"In at least some circumstances, however, the Governments interest in keeping investigations secret dissipates after an investigation concludes and at that point, First Amendment rights may outweigh the Government interest in secrecy," he wrote.

The judge only allowed the Fourth Amendment question to be dropped, citing 9th Circuit and Supreme Court precedent, but he left the door open for the issueto be brought back on appeal if needed.

Robart continued:

Some of Microsofts customers will be practically unable to vindicate their own Fourth Amendment rights.

This conundrum, however, is not unique to this case; it is also true of the victim of an unreasonable search in a strangers home. See Alderman, 394 U.S. at 134. The source of the courts conclusion is thus the product of established and binding precedent, which precludes the court from allowing Microsoft to vindicate Fourth Amendment rights that belong to its customers. This court cannot faithfully reconcile the broad language of those cases and Microsofts theory of Fourth Amendment standing on the facts of this case; that task is more properly left to higher courts.

In a statement sent to Ars, Brad Smith, Microsofts general counsel, said, "Were pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary."

In a short e-mail, DOJ spokesman Peter Carr told Ars, "We are reviewing the opinion and will decline to comment further at this time."

Read the original here:

Judge sides with Microsoft, allows gag order challenge to advance - Ars Technica

Balefire9 | Dreamstime.comOnce again, legislation that would give American citizens better privacy protections for their emails has passed the House of Representatives, but we're going to have to see what happens in the Senate.

The Email Privacy Act aims to correct a flaw in federal Electronic Communications Privacy Act of 1986. Passed in the relatively early days of home computer use, it established a policy that private electronic communications held by third parties that were more than 180 days old could be accessed by law enforcement and government investigators without the need for a warrant. A subpoena delivered to the communication provider was enough. A law this old obviously preceded the arrival and dominance of private email communications, and tech privacy activists and tech companies have been pushing for reform. The way the system stands now can result in people having their old private communications searched and read by authorities without the citizen's knowledge.

The Email Privacy Act fixes some of these problems, though it doesn't fully resolve the controversy Under the act, officials will need to get actual warrants to access emails and online communications, which provides at least a little more judicial oversight. But the warrants are to the providers, not to the actual people who wrote and sent the communications. It will be up to companies to decide whether to pass along the news of the warrant to customers. Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, says that this is a flaw with the legislation. The original version of the bill required that government provide notice. Without that rule, the third-party provider can resist the warrant if they choose to, but the actual customer probably might not even know.

"If you don't have notice, you really can't effectively [challenge the warrant]," Singh Guliani said. The bill does permit third-party providers to let customers know about the administration of warrants, but also allows for the government to delay this information for 180 days under a handful of exceptionsif the target is a flight risk or may destroy evidence or otherwise compromise the investigation. And while some major tech and communication companies have fought back against orders to pass along data or to keep searches secret, Singh Guliani says we shouldn't have to be "reliant on the business practices of providers that can change over time to make sure people get the full protection of the Fourth Amendment."

Still, the compromise bill is better than the current rules. No representative voted against it last session of Congress, and it passed again yesterday by a voice vote. But while the bill enjoys popular bipartisan support in the House, the last attempt to get it passed hit disaster in the Senate. Senators attempted to meddle with the wording of the bill to weaken it or add other unrelated regulations. Sen. John Cornyn (R-Texas) attempted to add an amendment to expand the surveillance reach of secretive National Security Letters. Sponsoring senators ended up yanking the legislation from consideration.

The Senate sponsors last session were Mike Lee (R-Utah) and Patrick Leahy (D-Vermont). A representative from Sen. Lee's office said that he intends to co-sponsor the Senate version of the bill again this year, but it has not yet been introduced. This could be the first legislative test of whether increased privacy protections can make its way to and through a presidential administration openly hostile to limits on any sort of investigative or law enforcement authority (as we saw earlier today). President Donald Trump is hardly alone and he's not responsible for its previous problems, but it's nevertheless legislation that should not be struggling at all.

And a little bit of self-promotion: I'll be leading a panel discussion on the Fourth Amendment, tech privacy, and Congressional lawmaking in this March's South by Southwest (SXSW) conference. Singh Guliani will be one of our panelists. Check out the details here if you find yourself in Austin on March 10. Efforts like the Email Privacy Act will be part of the discussion.

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Will Your Old Emails Finally Get Fourth Amendment Protections? - Reason (blog)

Tomorrow at 9:00 a.m., the Joint Committee on the Judiciary will hold a meeting to decide whether the committee isgoingto hearHouse Bill 6200.Introduced by state Representatives Caroline Simmons (D-144), William Tong (D-147), and Daniel J. Fox (D-148), HB 6200 would require a person openly carrying a firearm to display their permit immediately upon demand by law enforcement. Please contact the members of the Joint Committee on Judiciary and urge them not to hear this bill!Please click the Take Action button below to contact the committee members!

It is legal to openly carry a handgun in Connecticut so long as the person has a valid Permit to Carry. Connecticut State Police Training Bulletin 2013-01 states that personnel shouldNOTarrest a properly permitted individual merely for publicly carrying a hand gun or firearm in plain view absent exigent circumstances. Examples of these exigent circumstances are a Breach of Peace situation or the person is under the influence of intoxicating liquor/drugs.

Under the Fourth Amendment, as affirmed by the U.S. Supreme Court in Terry v. Ohio nearly half a century ago, police officers can stop and briefly detain a person to investigate only if they have a reasonable suspicion, supported by articulable facts that criminal activity is occurring. This is why Connecticut law should require that officers must have a reasonable suspicion that a crime is being committed before they can request proof of a permit.

This proposed bill is the equivalent of allowing the police to stop a motorist to demand their drivers license solely because they are driving. Law-abiding people carry firearms for self-defense. They shouldn't be treated as being engaged in criminal activity simply because they are choosing to openly exercise their constitutional Right to Keep and Bear Arms.

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Connecticut: Anti-Gun Bill which Violates Fourth Amendment Heads to Committee - NRA ILA

National Review

Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was New York Times Although Judge Gorsuch has a decidedly conservative record on the bench, by at least one measure his view of the Fourth Amendment's protections against unreasonable searches he has been relatively moderate, according to legal scholars and a ... Trump's Supreme Court pick Neil Gorsuch has a solid record of defending the Fourth AmendmentRare.us Neil Gorsuch should be hailed by privacy advocatesAmerican Thinker (blog) Trump Nominates Neil Gorsuch to the Supreme CourtReason (blog) Slate Magazine -The Atlantic -National Review -SCOTUSblog all 8,475 news articles »

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Was That Search Illegal? Sometimes, Neil Gorsuch Ruled It Was - New York Times

In Arizona v. Evans, 63 U.S.L.W. 4179 (March 1, 1995)(7-2), the Court held that the exclusionary rule does not apply to evidence seized by the police on the basis of a mistaken computer entry generated by court employees (rather than the police them- selves). In a combination of concurring and dissenting opinions, however, five members of the Court expressed great concern about the proliferation of computerized criminal justice records and their potential impact on personal privacy. Accordingly, the decision stops far short of creating a general good faith excep- tion to the exclusionary rule for any Fourth Amendment violation based on a computer mistake. The ACLU submitted an amicus brief supporting the defendant's claim that the evidence was properly excluded in this case regardless of which agency bore responsibi- lity for the underlying computer error. Summary of Argument in ACLU amicus brief

In Wilson v. Arkansas, 63 U.S.L.W. 4456 (May 22, 1995)(9-0), the Court ruled that the "reasonableness" requirement of the Fourth Amendment generally requires the police to "knock and announce" their presence when executing a search warrant. The Court acknowledged that this presumption may be overcome in exigent circumstances. However, the Court did not give law enforcement officials a carte blanche to ignore the "knock and announce" rule in all cases. The ACLU submitted an amicus brief arguing in favor of the "knock and announce" rule. Summary of Argument in ACLU amicus brief

In Vernonia School District 47J v. Acton, 63 U.S.L.W. 4653 (June 26, 1995)(6-3), the Court upheld a program of random, suspicionless drug testing for middle or high school athletes. The majority opinion, written by Justice Scalia, acknowledged that drug testing constitutes a search for Fourth Amendment purposes. The Court nevertheless concluded that students have diminished Fourth Amendment rights that are outweighed by the state's interest in addressing the problem of drugs in schools. In a strongly worded dissent, Justice O'Connor criticized the majority for "dispens[ing] with the requirement of individualized suspicion . . ." Id. at 4659. The ACLU represented the student plaintiff in this case. Summary of Argument in ACLU amicus brief

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FOURTH AMENDMENT | American Civil Liberties Union