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Monthly Archives: April 2017
Donald Trump flipflops on NATO, China, Russia, Syria, trade and more – Economic Times
Posted: April 13, 2017 at 11:32 pm
WASHINGTON: Donald Trump has long been seen as mercurial, but maybe never quite so much as this past week.
The US president in recent days abandoned a series of campaign promises and strident world views that were held for months and, in some cases, years.
From China to Syria, trade to the dollar, a rapid succession of 180 degree reversals has left Washington, foreign capitals and Trump's own fans with a nasty case of political whiplash.
Just 87 days ago Trump declared NATO "obsolete." On Wednesday he proclaimed "it's no longer obsolete," a seemingly miraculous rediscovery of purpose for the usually slow-moving alliance.
After talks and a slice of chocolate cake at Mar-a-Lago, China's Xi Jinping was no longer responsible for the "rape" of the US economy. Instead, Xi was a leader with whom Trump enjoyed good "chemistry" and "bonding."
Others were not so lucky -- falling on the wrong side of Trump's list of good guys and bad guys.
Syrian President Bashar al-Assad went from tolerated leader to political dead man walking, after Trump saw images of toddlers suffocating from a suspected sarin attack blamed on Damascus.
"That's a butcher. That's a butcher," Trump said, adding there was no place for Assad in Syria's future politics.
"There is a moral affront and there is maybe a personal anger, even a humiliation for Trump," said Hussein Ibish of the Arab Gulf States Institute.
Russian President Vladimir Putin's refusal to end his support for Assad has resulted in another dramatic about face.
It was "certainly possible" Putin knew about the sarin attack, Trump said.
"Right now, we're not getting along with Russia at all. We may be at an all-time low in terms of relationship with Russia," Trump said pensively.
He may have omitted the Cuban Missile Crisis and much of the Cold War, but it was an unmistakable message and a far cry from the praise Putin got from Trump during the campaign.
Almost simultaneously, Trump also reversed his opposition to the Export-Import Bank, said he might renominate Fed chair Janet Yellen after all and proclaimed the dollar too strong.
And his budget guru quietly declared that a promise to eliminate the deficit was just "hyperbole."
For White House spin doctors, these were not policy U-turns at all, but evidence Trump is bending the world to his will.
"If you look at what's happened, it's those entities or individuals in some cases, or issues, evolving towards the president's position," said White House press secretary Sean Spicer.
On issues like NATO turning its attention to terrorism to China abandoning currency manipulation -- from the White House perspective, things are just getting better in the Age of Trump.
In reality, China stopped weakening the yuan years ago and NATO has been fighting jihadist groups for the better part of a decade.
Part of the explanation for Trump's reversal may come from inside the White House, where radicals like Steve Bannon, Mike Flynn and KT McFarland have been sacked or notably sidelined.
At the National Security Council, HR McMaster has taken the reins and, according to insiders, is presiding over a more structured policy-making process that hews toward a more conventional fact-based approach.
In the West Wing, globalists like Trump's daughter Ivanka, son-in-law Jared Kushner and top economic advisor Gary Cohn are on the ascendency.
But the idiosyncrasies of a 70-year-old dealmaker may also explain some of his strategic gymnastics.
Trump's softer tone on Japan, China and NATO have all come after face-to-face meetings with their leaders, who each sought to mimic the businessman's transactional approach.
After meeting Trump, Xi refrained from blocking a UN vote condemning Assad, turned away North Korean coal ships and, according to officials, signaled market access may soon improve for US auto and agricultural firms.
All that was manna for the wheeling-dealing president, who promptly said China was not manipulating its currency -- despite promising to make that declaration on day one.
Trump also appears to be learning on the job. Speaking to the Wall Street Journal, the political neophyte expressed his surprise at learning that China cannot dictate terms in North Korea.
"After listening for 10 minutes, I realized it's not so easy," Trump told the paper.
"I felt pretty strongly that they had a tremendous power over North Korea," he said. "But it's not what you would think."
And if Trump has proven himself to be a dealmaker, he has also proven himself to be an opportunist.
His tougher lines on Syria and Russia are overwhelmingly popular. His overture to Beijing comes as Gallup reported that China is more popular in America than it has been in three decades.
Those looking for a "Trump doctrine" might have to wait, but those looking for explanations may look no further than the man himself.
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Donald Trump flipflops on NATO, China, Russia, Syria, trade and more - Economic Times
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Russia Suggests Trump is No Different from Obama After Montenegro NATO Approval – Newsweek
Posted: at 11:32 pm
Russia has criticized President Donald Trumps decision to ratify Montenegros accession to NATO, suggesting that there has been no shift in policy from previous White House administrations.
Following the Senates overwhelming approval last month, Trump on Tuesday signed the U.S. instrument of ratification for Montenegros accession to NATO. The move was made in defiance of Russias objections and was condemned by Russias Ministry of Foreign Affairs in a statement issued Thursday.
We view this step as a sign of inertia in Washingtons policies and a reflection of the logic of confrontation in Europe, where new dividing lines are being drawn, read the release.
We note that there is growing criticism of the efforts to sneak Montenegro into NATO even in the United States, where people justly doubt that this step will benefit the alliance itself and strengthen European security.
We regard the policy of including Montenegro in NATO as profoundly erroneous; it runs counter to the core interests of the people of that country and is damaging for the stability of the Balkans and Europe as a whole.
Such criticism was far from unexpected. When discussing NATO plans to invite Montenegro to join the alliance, Russian Foreign Minister Sergei Lavrov said in 2014 that the move would be a provocation.
The approval of Montenegro as a NATO member follows accusations from the countrys chief special prosecutor in February that Russian security services were involved in an attempted coup of its government last October. Russia has labeled such claims baseless.
The discordance over Montenegro is just the latest sign of the deterioration of the U.S.-Russia relationship, one that was widely expected to flourish under Trump.
Russian President Vladimir Putin attends a joint news conference with Italian President Sergio Mattarella after their talks at the Kremlin in Moscow, Russia April 11, 2017. Sputnik/Alexei Druzhinin/Kremlin via Reuters
Trump praised Russian President Vladimir Putin as a strong leader on the campaign trail. And, as president-elect, he said Putin was very smart for holding off on retaliating to then-President Barack Obamas sanctions against Russia over its alleged hacking to influence the presidential election.
But, last week, Trump acted in defiance of Moscow by green-lighting missile strikes against a Syrian airfield, a move Russia said could have extremely serious consequences.
Following the incident, Trump on Thursday said that U.S. relations with Russia may be at an all-time low, and that were not getting along with Russia at all.
At the same time, Trump reversed courseon NATO. Having previously called the organization obsolete, Trump argued that the military alliance had since made changes for the better.
I complained about that a long time ago and they made a change, and now they do fight terrorism, he said. I said it was obsolete. Its no longer obsolete.
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Russia Suggests Trump is No Different from Obama After Montenegro NATO Approval - Newsweek
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Trump Sending NSA McMaster to Afghanistan on Heels of MOAB Bombing on Islamic State – Breitbart News
Posted: at 11:32 pm
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Trump made the announcement during a press conference on Wednesday with North Atlantic Trade Organization (NATO) Secretary General Jans Stoltenberg, as reported by Military Times.
The U.S. has been at war in Afghanistan since 2001, after the September 11 attacks by radical Islamic terrorists on U.S. soil that killed 3,000 people.
The U.S. has some 8,400 troops in Afghanistan, with an additional 5,000 deployed from NATO allies, Business Insider reported. Army Gen. John Nicholson told Congress in February he needed a few thousand more troops in order to break what he called a stalemate with the Taliban terrorists.
Of about400 districts in Afghanistan,the Taliban controls, contests, or influences 171of them, according to the Special Inspector General for Afghanistan Reconstruction, Business Insider reported.
Voice of America (VOA) reported last month that the U.S. military in Afghanistan is ratcheting up theoffense against the growing Islamic State branch in the Afghanistan-Pakistan region.
Since he took office, President Donald Trump has been ramping up military operations against both the Islamic State, also known as ISIS and ISIL, as well as al-Qaeda, particularly in Yemen, VOA reported.
We stand confident that the new U.S. administration under President Trump will remain strategically engaged and continue its support, Afghanistans Foreign Minister Salahuddin Rabbani said at an appearance at the Atlantic Council in Washington.
American Navy Capt. Bill Salvin, the spokesperson and director of public affairs for the U.S./NATO-led coalition in Kabul, told VOA that our goal in 2017 is to defeat ISIS-K in Afghanistan.
Green Beret Staff Sgt. Mark De Alencar, 37, of Edgewood, Maryland, was killed earlier this month fighting jihadists in the eastern part of Afghanistan near the Pakistani border.
The fatality brings the total number of U.S. military deaths since the war started more than 15 years ago to at least 2,249, most of which occurred under former President Barack Obamas watch, according toPentagon data.
This marks the first time the bomb, known as the GBU-43, or Massive Ordnance Air Blast, (MOAB) was used in combat. Its yield is11 tons of TNTand has been nicknamed theMother of All Bombs.
It remains uncertain so far if the bombing was planned under the Obama administration or the Trump administration.
Pentagon spokesman Adam Stump said the plan has been in place for a few months, and that the weapon had been in Afghanistan for some time.
The final test of the MOAB took place on March 11, 2003 and was delivered into theater on April 1, 2003.
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Trump Sending NSA McMaster to Afghanistan on Heels of MOAB Bombing on Islamic State - Breitbart News
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Mysterious group posts more alleged NSA hacking tools; Russia link suspected – Wichita Eagle
Posted: at 11:32 pm
Mysterious group posts more alleged NSA hacking tools; Russia link suspected Wichita Eagle One document appeared to show that NSA spyware had been placed on servers in South Korea, Russia, Japan, China, Mexico, Taiwan, Spain, Venezuela and Thailand, among other countries. The dump included details of how the NSA purportedly had ... |
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Mysterious group posts more alleged NSA hacking tools; Russia link suspected - Wichita Eagle
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In slap at Trump, Shadow Brokers release NSA EquationGroup files – Ars Technica
Posted: at 11:32 pm
On April 8, as part of a long, awkwardly worded rant about President Donald Trump's betrayal of his "base," the individual or individuals known as the Shadow Brokers posted the password to an encrypted archive containing what appear to be components of a toolkit associated with the National Security Agency's alleged Equation Group hacking campaign. But those hoping for even more spectacular exploits than those leaked earlier by the Shadow Brokers willlikely be disappointed. However, the files do include a number of tools that may still be usable, as well as significant amounts of information about systems that appear to have been hacked by the NSA.
Many information security analysts were unimpressed.
The archive, which the Shadow Brokers previously attempted to auction off, contains just over 300MB of files. It does not appear to contain the entire archive of Equation Group tools. Many of the tools apparently date back to the 1990s, targeting platforms like the Digital Equipment Corp., Alpha, Sun Solaris 2, the defunct Chinese Red Flag Linux, and other older Linux distributions. Other tools are apparently focused on telecom targets, including tools for getting into GSM cellular networks and breaking DES encryption.
The dates rangebetween August of 2000 and August of 2010, referencing code names including Incision, Orangutan, Reticulum, Jackladder, and Patchicillin.Based on the files, a majority of the systems targeted appear to be Sun Solaris systems running on SPARC architecture.
The post from Shadow Brokers, entitled "Don't Forget Your Base," is (like previous posts) in strangely wordedEnglish and delivers a white-supremacist, isolationist, anti-"globalist" message, offering "constructive criticism" on Trump's recent policy moves, including the strike on Syria, and offering the password to the encrypted archive previously upfor auction as "our form of protest."
Ars is continuing to examine the contents of the files and will post a more complete report soon.
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In slap at Trump, Shadow Brokers release NSA EquationGroup files - Ars Technica
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NSA gives military students a leg up on cyber with real-time exercise … – FederalNewsRadio.com
Posted: at 11:32 pm
The National Security Agency is amping up its game when it comes to challenging young, college-age students in military academies on their cyber skills.
The agency is hosting its 17th annual Cyber Defense Exercise (CDX), but with a few new twists.
The exercise challenges students at the U.S. Military, Naval, Coast Guard and Merchant Marine academies, as well as undergraduate and graduate students from the Royal Military College of Canada.
Their mission is to defend networks they have created from a red team comprised of U.S., Canadian and industry cyber warriors.
White House ends hiring freeze, mandates workforce, mission restructuring
Along with defending the network, the teams have certain challenges they need to secure as well.
What this does is challenges them to look into forensics and see where malware lies and where things happen, said James Titcomb technical lead for CDX said April 12.
The challenges consist of reverse engineering and malware analysis, network forensics, offensive ethical hacking and control of a simulated drone.
The graduate students are testing two new challenges that involve securing a space satellite and an unmanned ground vehicle.
This year whats new is we have two cadets from the Air Force academy participating in the red team, said Shirley McMonigle, CDX program lead. This is also the first year the undergraduates will participate in the drone challenge.
This year teams will have to deal with ransomeware as well. The teams can either pay points to get out of the hack or try to fix it.
March TSP returns: In like a lamb, out like a lion
Teams are scored on network confidentiality, usability, integrity and on the challenges.
NSA uses a red team to interfere with students networks and their ability to complete the challenges. Much of the intrusions find their way into the students networks through a gray team, which acts as a network user.
The gray team may fall for social engineering tactics.
Most of our access is done through the gray cell. We call it the user that clicks on everything. What we do is we purposely throw things and have the gray cell open those links so that we can own their work stations. [The teams] have to go in and mitigate that, Titcomb said.
The red teams are a way for those in the military to keep their skills sharp too.
Air Reservist Lt. Tim Li said he works in cybersecurity for J.P. Morgan. He said acting as a hacker helps him understand the other side of the cybersecurity coin.
Its fun, its the opposite for me of what I do on the outside. Its learning what the attacker would do, so it will definitely be beneficial for me once I return to my civilian job, Li said.
The students embedded this year with the red team said they were taking in a lot from the experience.
Nick Co, a 22-year-old midshipman, said he could see himself working for U.S. Cyber Command or the NSA at some point in the future.
Thats good news for the military, which is strapped for people with cyber talent in the service.
I think for us some of it is trying to understand the basics first. We are still hugely learning, but we know that the field is really growing and we definitely know they could use some officers out there, Co said. These guys are the real professionals so its fun to really learn from them and take this back and hopefully when we graduate implement this.
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NSA gives military students a leg up on cyber with real-time exercise ... - FederalNewsRadio.com
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CIA and NSA first sought to exploit commercial databases in mid-80s – MuckRock
Posted: at 11:32 pm
April 12, 2017
Agencies felt databases would provide up-to-the-minute information at the fingertips of analysts, technical personnel, and executives.
Open Source Intelligence (OSINT) is the least famous, least exciting, and most prevalent form of intelligence, covering any sources that are theoretically open to anyone, such as newspaper articles, published books, or social media posts. With the ubiquity of the internet, the use of such commercial databases is beyond routine for both the Intelligence Community and the government at large, but there was a time, however, where the mere interest was not only cutting edge, but problematic.
By June 1985, the NSA had been looking at the issue and decided to reach out to CIA about it. The NSA memo, originally marked For Official Use Only, was sent from the NSA Director directly to the CIA Director, proposed that they work with the Intelligence Handling Committee to find a way to exploit open-source, commercial databases. Unsurprisingly, NSA volunteered to take the lead in exploring the issue. To the NSA, the benefits were obvious. The savings in time and manpower have long been recognized. They could give up-to-the-minute information at the fingertips of analysts, technical personnel, and executives.
Given this, it was only natural that the NSA would want to use this open-source information by integrating commercial database-derived information into a variety of internal support programs.
The NSA saw several obstacles, including costs and security. Significantly, in addition to accessing the information, they would have to devise ways to integrate it, and allow users to assimilate the information before they would be able to successfully exploit it. These challenges wouldnt be unique to any of the agencies in the Intelligence Community, or even the rest of the government, which led the NSA to conclude that no one agency should have to deal with these issues alone.
Security would be the major issue, as it included not only the still-emerging issues of cybersecurity, but also deniability. How could the NSA and other agencies access these databases without giving away their interests? NSAs Information Resources Management Organization had begun looking into alternatives for rapid secure access to commercial databases, including data downloading, transmission through a secure gateway computer or physical data transfers.
For its part, CIA agreed and was already working on some integrating some commercial databases into its work. The Foreign Broadcast Information Service (FBIS) was charged with collecting information from foreign public media, which the Agency felt included accessing foreign commercial databases. According to a formerly SECRET memo prepared for the CIA Director, the project had first begun in 1984.
The pilot project was fairly ambitious, especially for the time. Not only did it allow the Agency to collect information more quickly, the pilot project proved that the Agency could collect new bibliographic and documentary information [that was] not normally available through regular means of acquisition. By sampling some 50 online databases contained in the French Telesystemes-QUESTEL network, the project had found scientific, technical and economic information that met FBIS requirements.
FOIA requests have been filed to learn more about these efforts from the NSA and CIA.
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CIA and NSA first sought to exploit commercial databases in mid-80s - MuckRock
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Ex-NSA analyst: George Washington ‘would have had at least half … – Raw Story
Posted: at 11:32 pm
Donald Trump and his team have been having difficulties adapting to the White House. (SAUL LOEB/AFP)
Former National Security Agency analyst John Schindler has become well known for his commentary about ties between the Russian government and members of the Trump administration, and this week he pounced on revelations that Trump campaign foreign policy adviser Carter Page was under surveillance by the FBI for allegedly being a foreign agent of the Russian government.
Reacting to news that the FBI took out a FISA warrant on Page, Schindler called Page a slimy little traitor who was a fully witting agent of Russian intelligence agencies.
He then drew a broader connection to the rest of the White House by saying that several members of the administration were similarly compromised by ties to the Russian government.
George Washington was all about counterintelligence, he said. He would have had at least half the Trump WH shot as traitors, without tears or doubts.
Schindler, a political conservative who has in the past also expressed disdain for the Obama administration, also encouraged more Republicans to embrace zero tolerance for lies and corruption especially involving foreign spies.
Read the whole tweet storm below.
All the while Page was a fully witting agent of the SVR.
Fuck this slimy little traitor.https://t.co/MJD1QjUct7
John Schindler (@20committee) April 12, 2017
Reject ideology. Embrace zero-tolerance 4 lies+corruption esp involving foreign spies. That'll make Washington smile & save our Republic.
John Schindler (@20committee) April 12, 2017
George Washington was all about counterintelligence. He would have had at least half the Trump WH shot as traitors, without tears or doubts.
John Schindler (@20committee) April 12, 2017
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Ex-NSA analyst: George Washington 'would have had at least half ... - Raw Story
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Uber engineer accused of data theft must tell judge why he’s … – Ars Technica
Posted: at 11:31 pm
Enlarge / John Krafcik, CEO of Waymo, debuts a customized Chrysler Pacifica Hybrid in January 2017.
Bill Pugliano / Getty Images News
"What Ive told you is that you can submit the privilege log to me, in camera, without giving it to anyone else and I can evaluate it, which aspects, if any would be incriminating," US District Judge William Alsup said, addressing a lawyer representing the engineer, Anthony Levandowski, during the hearing."Im not ruling against theultimate assertion of the privilege, but youve got to do more than just say in court, Fifth Amendmentyou have to do a privilege log and go through the process."
The case pits Waymo against Uber, which in turn is in a tense situation with one of its own employees, Levandowski, the head of its self-driving division.
Levandowski is now set to be deposed by Waymo lawyers this Friday at their San Francisco offices. He must also respond to a subpoena by handing over materials that he is accused of stealingthousands of secret documents from his time with Waymoparent company Google. On Wednesday, Judge Alsup quashed four of the six distinct items requested in the subpoenabut allowed the most substantive, the allegedly "misappropriated materials," to stand. (The third item, "All communications between You and Uber between January 2015 and August 2016," will also remain.)
Earlier this year, Waymo sued Uber for alleged patent infringementWaymo claimed that Levandowski, a former Waymo and Google employee, stole 14,000 confidential documents prior to his departure.Armed with that data, Waymo further alleged, Levandowski founded a company called Otto in early 2016, which was then acquired by Uber for $680 million only months later. Waymo argued that this cache of materials allowed Uber to rapidly and seriously compete with Waymo in self-driving technology. Late last month, Waymo lawyers asked the judge to impose an injunction that would compel Uber to stop using any of the allegedly stolen data.
In late March 2017, Levandowski invoked his Fifth Amendment right to protect against self-incriminationdespite the fact that he neither has been charged with a crime, nor is he a named defendant in the civil suit. So far, the engineer has refused to hand over any documents or data related to the lawsuit. In addition, Uber seems unable to compel Levandowski, who still remains employed at Uber, to give up the information.
"As an employer you cannot force an employee to turn over personal property," Arturo Gonzlez, one of Ubers attorneys, told Ars in a phone interview after the Wednesday hearing. However, he noted, Uber would be "very pleased" if Levandowski would hand over any relevant data that he may have.
During that late March court hearing, when Uber indicated it would not pursue any data that Levandowski held privately, Waymo tried a different tactic. It served Levandowski'sattorneys with a subpoena, commanding Levandowski to produce substantial amounts of materials and to appear for a deposition on Friday, April 14. Levandowski'sown lawyer, Ismail Ramsey, told Waymo's lawyers in a letter on Monday that Levandowski "plans to assert his Fifth Amendment rights with respect to any documents requests served on him."
Waymo's attorneys, for their part, countered in a Tuesday letter to the judge: "Again, the only reason a subpoena was even required to be served in the first place is because Uber and Mr. Levandowski have attempted to construct an artificial distinction between themselves in an effort to delay their obligations to produce responsive information."
As Ars reported earlier this month, Uber's lawyers initially resisted producing a privilege log of their own. Uber's loga list of which documents shouldn't be disclosed to Waymo as part of civil discoveryishundreds of pages long, much of it e-mail from Uber's systems about the $680 million acquisition of Levandowski's startup, Otto. Levandowski is concerned about 42 documents that relate to a due diligence report about the Otto acquisition. His lawyers won't even say who the report's author is.
Four days after that April 6 hearing, on April 10, Judge Alsupdenied Levandowskis lawyers attempt tohalt Uber from giving up its privilege log.
"At risk of repetition, the very purpose of a privilege log is to allow a fair way to test a claim of privilege," Judge Alsup wrote. "That traditional privilege log requirements should be verboten merely because they might connect the dots back to a non-party in a possible criminal investigation is a sweeping proposition under which all manner of mischief could be concealed."
Levandowskis lawyers immediately appealed Alsups April 10 ruling on Tuesday to the US Court of Appeals for the Federal Circuit, which handles all patentappeals.
"I dont believe that you need until Wednesday at noon," the judge said.
On Wednesday, the judge also ordered that by April 25, Uber must produce a description of any and all LIDAR-related work performed by Levandowski, who still currently oversees Ubers self-driving car program.
"You are ignoring all of the other work and you never mentioned what Mr. Levandowski was doing," Judge Alsup told Uber lawyers during the Wednesday hearing. "What was he working on? It does leavethe impression that you have cleverly written around the problem of what Levandowski was working on even if it didnt turn into a prototype. Thats a fair question, and they are entitled to an answer."
Judge Alsup also noted that if Levandowski was going to continue to invoke his constitutional rights during the Friday deposition, the engineer couldnt do it in one fell swoop."It has to be invoked question by questionitll be a long day but you have to go through the process," he said, addressing Waymo attorneys.
Both sides will reconvene before Judge Alsup on May 3 to discuss Waymos motion for a preliminary injunction, which could put the brakes on Ubers self-driving work.
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Uber engineer accused of data theft must tell judge why he's ... - Ars Technica
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The Fourth Amendment and no trespassing signs – Washington Post
Posted: at 11:31 pm
In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an implied license allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, thats within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; thats why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People dont implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily cant do that without a warrant.
Now consider this question: How does Jardines apply when properties have no trespassing signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardiness implied license test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isnt clear on which understanding of the implied license is correct.
In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of no trespassing signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Heres how the court summarizes the question, with paragraph breaks added and some citations omitted:
Given the Supreme Courts recognition that the knocker on the front door is treated as an invitation or license to attempt an entry, Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):
[T]he license granted to enter property to knock on a persons door is not unlimited. Rather, it extends unless and until the homeowner provides express orders to the contrary. In determining the scope of the implied license, and therefore whether a police officers approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.
The question before us in this case is whether posting No Trespassing signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendants signs turn the investigators entry onto his property into an intrusion subject to constitutional protections?
The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendants driveway was categorically barred?
The court concludes that under this test, a no trespassing sign ordinarily doesnt have much Fourth Amendment significance:
In short, a homeowner who posts a No Trespassing sign is simply making explicit what the law already recognizes: that persons entering onto another persons land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several No Trespassing signs. For this reason, we disagree with the dissent that a No Trespassing sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property. Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a trespass when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.
Justice Lee dissented. From the dissent:
Mr. Christensen sufficiently revoked the publics implied license to enter his property by posting multiple No Trespassing and Private Property signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several No Trespassing signs near Mr. Christensens driveway, and she did not go to houses that had No Trespassing signs. . . .
Mr. Christensen did not just post one No Trespassing sign he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensens intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.
I dont have particular views as to which approach is right, but its an interesting question that may be headed up to the U.S. Supreme Court before too long.
I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.
As always, stay tuned.
See the original post:
The Fourth Amendment and no trespassing signs - Washington Post
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