Daily Archives: September 20, 2014

The Fourth Amendment By Maison Erdman
description.

By: Monkey5EM

Go here to see the original:
The Fourth Amendment By Maison Erdman - Video

When you signed up with your ISP, or with a wireless carrier for mobile devices, if you gave it any thought at all when you signed your name on the contract, you likely didn't expect your activities to be a secret, or to be anonymous, but how about at least some degree of private? Is that reasonable? No, as the law currently suggests that as a subscriber, you "volunteer" your personal information to be shared with third-parties. Perhaps not the content of your communications, but the transactional information that tells things like times, places, phone numbers, or addresses; transactional data that paints a very clear picture of your life and for which no warrant is required.

I'd like to direct your attention to an essay titled "Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance" by Olivier Sylvain, Associate Professor of Law at Fordham University School of Law. He said, "Today's reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials."

Reasonableness is all-important when it comes to the law...what a reasonable person would expect, such as a reasonable expectation of privacy. Although you may try to hold onto your privacy, you also know that most of what you do online can be discovered. "Every moment that a user is connected to the network has become an opportunity to be surveilled by law enforcement and national security agencies." Since we are not all criminals and terrorists, how is that reasonable?

Regarding our cell phones, is it reasonable that our "telecommunication carrier, smartphone manufacturer and others are aware of the location of their cell phone at any given time" because we happened to buy a specific model of phone, signed up with a carrier or installed apps? Additionally, "service providers and governments have forged a public-private collaboration through which law enforcement officials obtain location information about user accounts." In fact, the more we come to accept being tracked, to having our data sold, traded and shared, the more it gnaws away at what the public can consider a reasonable expectation of privacy. Sadly, the new normal is that the Fourth Amendment is in tatters.

For some, ignorance may be bliss; for none, however, is ignorance an excuse in the eyes of the law. Take the third-party doctrine, for example. Sylvain wrote, "Courts have presumed that users consent to the public disclosure of transactional data when they volunteer them to their service providers. The third-party doctrine presumes that, when users share it with third-party service providers, they convey an expectation that the information is not private. And 'it is not a defense that defendants do not control or know about the role of the third-party service provider'."

In the courts, judges want guidance from legislatures, but let's face it; the majority of Congress couldn't fill a thimble with their combined technical prowess. Yet these individuals are working on legislation that eventually determines what can and cannot be done...what is or is not the public's reasonable expectation of privacy.

Sylvain argues that "the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance."

He adds that "court-administered privacy law doctrine must change if the protection against 'unreasonable searches and seizures' is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is."

The reasonable expectation standard and the third-party doctrine have outlived their time and usefulness. Reform is especially urgent today, in the era of total surveillance, when data brokers and governments can aggregate and trade transactional subscriber data about electronic communications so easily. Expectations are difficult to define when everyone, it seems, shares their personal information with service providers and application developers in order to be connected.

Courts should "bring a needed dose of reality to Fourth Amendment analysis by excising any broad assumptions about the nature of user consent in the third-party doctrine. This reform would recognize that users do not generally choose to compromise their data about their phone use (or web browsing or e-mailing) just because they disclose information for the limited purpose of obtaining telecommunications service. Participation in the networked information economy is practically a necessity today."

The rest is here:
Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance

EUREKA SPRINGS -- If you're stopped for a moving traffic violation, does the officer have the right to search your vehicle without a warrant? Ask to look at your cell phone? Detain you for longer than 15 minutes?

Judge Kent Crow addressed those and other questions last week at a program on the Fourth Amendment to the Constitution, given to the local chapter of the Daughters of the American Revolution. What he finds fascinating about the amendment, which protects against unreasonable search and seizure:

"It's an absolute mess," he said. "It has created more litigation than any other amendment."

Crow, whose ancestors fought in the American Revolution, said the Fourth Amendment was a response to English writs of assistance, which gave the king's men the right to enter a home and search it any time they wanted.

"We are a nation of thieves," Crow said. "We were smugglers. We didn't want to pay the king's tax."

What the Fourth Amendment prevents: officers from crossing the threshold of your home without a search warrant specifying what (or who) they are looking for, and where it is likely to be found. If they have a warrant to search your computer, for example, they cannot go through your bedroom drawers or open the refrigerator, he said.

If, however, officers knock on your door and ask to come in and you admit them, then they are free to search the house, he said, something people may not be aware of. There is also a "knock and announce" law, meaning that with a search warrant, they can enter the house after waiting a reasonable time for someone to answer the door. They can also enter your home if there are exigent circumstances, meaning immediate concerns of an emergency nature, for example, for the safety of a person inside.

Once you are served with a search warrant, officers will proceed to the area specified and search while you peruse the warrant, Crow said. If the search is improperly conducted, you can challenge the evidence in court.

Fourth Amendment rulings have had a hard time keeping up with changing technology, Crow said, which have opened up more ways "the king's men" can cross your threshold. The general rule: If you are in a place where you have a reasonable expectation of privacy, for example, in a fenced backyard surrounded by shrubs, the Fourth Amendment protects you from government entry or surveillance.

"The right of privacy keeps expanding," he said.

Go here to read the rest:
Judge expounds on privacy rights