Daily Archives: June 1, 2017

The Fourth Amendments barriers to unreasonable searches and seizures dont get the attention the First Amendment does, but theyre at least as important as a guarantee of liberty. And during his White House years Barack Obama vandalized the Fourth Amendment. His glittering words blinded the media to his unprecedented assault on the right to be let alonethe most cherished right among civilized people.

The American Revolution was ignited by British invasions of the right to privacy. James Otis protested British Writs of Assistance that empowered every petty official to rummage through colonial businesses and homes on a hope and a prayer that smuggled goods or other incriminating evidence of wrongdoing might be discovered:

Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

Pitt the Elder, speaking to the British Parliament, captured the heart and soul of what came to be ratified as the Fourth Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

The Amendment protects reasonable expectations of privacy from government surveillance, and in Olmstead v. United States (1928), Justice Brandeis (dissenting) said that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. The government cannot invade a persons privacy without documenting a particularized and urgent criminal justice or foreign intelligence need to a neutral and impartial magistrate. The prohibition does not bend even in cases of homicide or international terrorism where its shield might enable serious wrongful conduct to escape detection. Our Constitution is anchored to the high principle that it is better to risk being the victim of injustice than to risk being complicit in it.

That is, until now. President Obamas dragnet collection of internet and phone metadata on every American citizen obliterated the Fourth Amendments privacy fortress. Without getting a court warrant, Obamas National Security Agencys Stellar Wind program indiscriminately collected internet metadata, i.e., the accounts to which Americans sent and from which they received emails. The metadata detailed the internet protocol (IP) addresses used by people inside the United States when sending emails. Julian Sanchez of the CATO Institute explained the magnitude of the invasion of privacy:

The calls you make can reveal a lot, but now that so much of our lives are mediated by the internet, your IP logs are really a real-time map of your brain: what are you reading about, what are you curious about, what personal ad are you responding to (with a dedicated email linked to that specific ad), what online discussions are you participating in, and how often?...Seeing your IP logs and especially feeding them through sophisticated analytic tools is a way of getting inside your head that's in many ways on par with reading your diary.

President Obama also collected metadata on every phone call made by Americans, under a tortured interpretation of section 215 of the USA Patriot Act. Among other things, the telephony metadata included the time, duration, number called, and routing information of every phone communication in the United States. The database would enable the government to create a personal profile of citizen.

United States District Judge Richard Leon found a high probability that the dragnet collection of telephony metadata violated the Fourth Amendment in Klayman v. Obama.

I cannot imagine a more indiscriminate and arbitrary invasion [of privacy] than this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgment of freedom of the people by gradual and silent encroachments by those in power, would be aghast.

President Obamas own Privacy and Civil Liberties Board similarly found Steller Wind unauthorized by section 215 of the USA Patriot Act. It amplified that it could not find a single instance in which the program made a concrete difference in the outcome of a terrorism investigation[and added]we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. The United States Court of Appeals for the Second Circuit also concluded that Stellar Wind was illegal in ACLU v. Clapper.

President Obamas presidency was unprecedented in its scorched earth tactics against the Fourth Amendment. And were only now beginning to find out how he weaponized this information against political enemies.

Start your workday the right way with the news that matters most.

See the rest here:
Obama Vandalized the Fourth Amendment - HuffPost

In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterdayunsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuits Fourth Amendment provocation rule while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alitos opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged reasonable based on circumstances relevant to that determination, then a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.

Sympathetic facts and three distinct Fourth Amendment claims

As detailed in my prior summary, two deputy sheriffs, searching for a felon, entered a shack where they had been told a homeless couple lived, without a search warrant and without knocking or announcing their presence or identity. Angel Mendez and his then-girlfriend were resting inside. When he heard someone entering, Mendez picked up a BB gun to move it in order to stand up. The deputies saw what they reasonably viewed as a weapon pointed in their direction, and immediately opened fire, severely injuring the woman and Mendez (whose lower leg was amputated as a result).

The Mendezes (now married) pursued three distinct Fourth Amendment claims in their federal lawsuit against the deputies and Los Angeles County: the failure to get a search warrant, the failure to knock and announce, and excessive force. No one has disputed that, at the moment of the shooting, the deputies acted reasonably in shooting to protect themselves. But as Alito notes, the district court did not end its excessive force analysis at this point. Instead, the court awarded damages based on why the shooting took place, noting that were it not for the failure to get a warrant and to knock and announce both constitutional violations Mendez would not have been startled or picked up his gun.

In so ruling, the district court applied the 9th Circuits provocation rule, which as described by Alito permits an excessive force claim where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation. On appeal, the 9th Circuit affirmed this application of its doctrine. The appeals court held that entering the residence without a warrant violated clearly established Fourth Amendment law. But the court ruled that the deputies were entitled to qualified immunity for the knock-and-announce violation, because it was not clearly established in this context: Other officers had in fact knocked and announced at the front door of the main house. Still, because the deputies unconstitutional warrantless entry had recklessly provoked the otherwise reasonable shooting, the court of appeals affirmed the damages award.

As an alternative rationale, the appeals court said that basic notions of proximate cause also supported the damages award, regardless of the provocation rule, because it was reasonably foreseeable that the officers would meet an armed homeowner when they barged into the shack unannounced. But, as the Supreme Court noted in remanding on this alternative theory, by relying on the unannounced nature of the entry, the court of appeals appeared to focus on the same knock-and-announce violation for which it had already ruled that the officers should receive immunity.

The court rejects the provocation rule as an unwarranted and illogical expansion of Graham

When law enforcement officers use force to effect a search or seizure, the Fourth Amendment requires reasonableness. A law-enforcement entry, an arrest, and even a shooting (a seizure) are Fourth Amendment events governed by this timeless yet amorphous constitutional standard. Claims of unreasonable force by law enforcement in such circumstances are characterized as excessive force, and can lead to constitutional tort damage awards for violating the Fourth Amendment, unless qualified immunity intervenes to protect the law-enforcement officers from liability.

As the court pointedly noted yesterday, The framework for analyzing excessive force claims is set out in Graham v. Connor. In Graham, Alito emphasized, the court held that the operative question in excessive force cases is whether the totality of circumstances justifies a particular search or seizure, paying careful attention to the facts and circumstances of each particular case.

No one can argue with this account of settled law because, of course, it is so general that it answers no specific questions. The trick how such general legal principles are applied to the specific facts of each case.

It is in this application that the 9th Circuit erred, said the court as it overturned the provocation rule. [T]he objective reasonableness analysis, the court explained, must be conducted separately for each search or seizure. In the courts view, the fundamental flaw of the provocation rule is that it uses a separate and independent constitutional violation to manufacture an excessive force claim where one would not otherwise exist. When viewed from the deputies perspectives at the time they confronted a weapon pointed at them, the shooting in this case was not unreasonable. By asking a court to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force, the Supreme Court reasoned, the 9th Circuits novel and unsupported rule conflates distinct Fourth Amendment claims.

A key footnote necessary to avoid a 4-4 tie?

If you followed the courts opinion to this point, you might think that the it would conclude by holding that Mendez cannot recover damages in this case. But that is not what the opinion says at all. Instead, a single footnote appears in the opinion, marked with an * rather than a number. One can speculate that this footnote was first suggested by someone other than the opinions author a justice who threatened otherwise to dissent. Even more likely, four justices may have asked for this footnote as a condition for joining, thereby threatening a 4-4 affirmance of the judgment below and continuation of the provocation rule. That was surely an outcome Alito and other justices wanted to avoid. Thus footnote * is the key to this opinion. Here is what it says:

Graham commands that an officers use of force be assessed for reasonableness under the totality of the circumstances. On respondents view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. We did not grant certiorari on that question . All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.

Thus and this seems surprising given the tone of the opinion up to this point the court did not rule that the Mendezes cannot recover on the facts of their case. All the court held was that the theory of the provocation rule that one constitutional violation can somehow render a different, separate and distinct, reasonable seizure unconstitutional is rejected. This holding does not mean or at least it does not appear to mean that persons injured by law enforcements use of force cannot recover for injuries proximately caused by a Fourth Amendment violation committed before the moment of a shooting. Indeed, a key phrase from Graham at the moment on which the petitioners had relied, was pointedly not mentioned anywhere in this opinion.

In light of footnote *, yesterdays opinion seems uneventful. As with all good proximate cause tort hypotheticals, the outcome will depend on the facts. This is nothing new, given that the Framers made the word unreasonable the fulcrum of the Fourth Amendment in 1790.

Conclusion

In a concluding paragraph that I imagine was also worked on by more than one justice, the court appeared to endorse the objective Alito also called it a notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. This seems like a healthy recognition in light of contemporary concerns regarding police shootings. Indeed, said the court, both parties and, it appears, the unanimous court accept the principle that plaintiffs can subject to qualified immunity generally recover damages that are proximately caused by any Fourth Amendment violation. This phrasing may satisfy the justices offended by this particular shooting and favoring recovery by persons like the Mendezes severely injured by law enforcement although they had nothing to do with the event, as Justice Sonia Sotomayor said at oral argument. In deference to those justices, the court remanded the case for the lower courts to revisit the proximate cause question. (In a somewhat unusual move, the court pointed to specific pages of the briefing as a useful starting point for the remand.) Meanwhile, the 9th Circuits general provocation rule is dead, as Alito had suggested it should be two years ago in City and County of San Francisco v. Sheehan and, indeed, years earlier as a judge on the U.S Court of Appeals for the 3rd Circuit.

Thus the court preserved the logic of its precedents, while not endorsing the law-enforcement shooting of two innocent people. It would be encouraging if this opinion set a new standard for the newly reconstituted court: finding ways to rule unanimously while reaching fair results.

Click for vote alignment by ideology.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice, SCOTUSblog (May. 31, 2017, 11:55 PM), http://www.scotusblog.com/2017/05/opinion-analysis-finding-fourth-amendment-unanimity-allowing-fourth-amendment-justice/

Original post:
Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice - SCOTUSblog (blog)

It must be tough to be a dinosaur pop media editor nowadays. All these Plebians who watch alternative news sites keep clamoring for real information, while youre trying to focus on other things.

Seriously, how can the great unwashed not see that Donald Trumps body language while walking beside a foreign dignitary is much more important than the publication by Wikileaks, Sinclair Broadcast Group, and Circa News that the Foreign Intelligence Surveillance Act (FISA) Court issued a secret ruling on April 26 lambasting the Obama-era National Security Agency for conducting illegal surveillance on Americans?Pop media editors must be flummoxed trying to suss out why folks in this modern era of news gathering keep trying to find out about how the federal government was spying on many of them without even obtaining the usual rubber-stamp warrants that the FISA Court hands out like candy during Trick Or Treat.

In fact, despite the dinosaur media editors stepping around it, this revelation about the FISA Court and the NSA is a major story, and sheds considerable light on just how perfidious the NSA under James Clapper has been --and how, even after the revelations of Edward Snowden about the NSA spying on Americans, the agency continued to do so.

It also serves as an opportunity to remind oneself about the FISA Court itself, and how, despite the leak of this document, the court is, in essence,sanctioned only by a 1978 law, and not by the Fourth Amendment of the US Constitution.

First, the revelation.

As Tim Johnson reports for the Miami Herald, one of the few old guard news sources to give this more than a fleeting mention:

The document, signed by (FISA Court) Judge Rosemary M. Collyer, said the court had learned in a notice filed Oct. 26, 2016, that National Security Agency analysts had been conducting prohibited queries of databases with much greater frequency than had previously been disclosed to the court. It said a judge chastised the NSAs inspector general and Office of Compliance for Operations for an institutional lack of candor for failing to inform the court. It described the matter as a very serious Fourth Amendment issue.

Thats putting it mildly.

Lets underline a few points about this notice." First, it was 99 pages long. Second, it revealed that the NSA was not even bothering to get FISA Warrants when conducting surveillance against Americans.

As nice as it is that the FISA judge sent this notice to the NSA, the only reason we, the people on whom the NSA could be spying, know about it is because it was leaked.

This reveals a great deal about the persistentactions of the NSA under its former leader, James Clapper, a man who, when asked in 2013 Senate testimony whether the NSA was spying on Americans, said, No."

The NSA spying on Americans is contrary to the Fourth Amendment in 2013, andit continued to do so without asking for the so-called FISA Warrants required by the 1978 Foreign Intelligence Surveillance Act. This, all being done by an administration whose Chief Executive claimed it was the most transparent ever.

The FISA revelation is another tiny hint that maybe, just maybe, Mr. Obama was not being truthful.

And lest we forget, this secret message, as damning as it is, comes from a court that is not really a court as the Founders envisioned it.

The FISA Court was created after the Church Hearings in Congress pursued the valid allegations that U.S. government agencies (FBI, CIA, etc) were spying on Americans, especially counter-culture figures like Martin Luther King and anti-war activists during the Vietnam Conflict. Large portions of the American public were justifiably upset about the problem, and, in classic government fashion, the politicians called their show trials, performed their kabuki theatre, and came out of it with the answer: Since the spying was against the law, they decided to write a new law to essentially make it legal while telling people they were fixing the problem.

Thus was born the Foreign Intelligence Surveillance Act, thanks mainly to the ever-trustworthy Sen.Teddy Kennedy of Massachusetts. The Act purported to protect Americans from surveillance by giving the federal government a power it didnt have according to the Constitution:the power to spy on foreigners. And, ifan American was on the other end of the conversation,to spy on that American.

All the U.S. spy agencies had to do was ask for a warrant from the newly created secret court called the FISA Court, and everything would be hunky dory.

The fact that the Fourth Amendment applies to any spying, regardless of whether it is being done to Americans or foreigners, and it requires real warrants, from real judges, public warrants in the common law tradition going back centuries? The fact that each person to be searched and each item sought had to be mentioned in this public warrant? Not part of the deal.

The FISA law essentially rewrote the Fourth Amendment, making it whatever the FISA Court wanted when it came to surveillance.

The fact that a FISA judge sent a classified message to the Executive Branch saying the NSA wasnt complying to the 1978 law is nice to know, but the entire system is unjustified based on the original intent of the people who wrote their rulebook, called the U.S. Constitution.

But it gets worse.

In fact, while the ObamaNSA continued to spy on people -- even justifying the expansion of that spying by seeing names that were merely mentioned in e-mails of people on whom they were spying, and then spying on those people it has been revealed in declassified documents that the James Comey-led FBI illegally shared surveillance data on people with third parties.

All of this is getting little press in the mainstream media, but it does not mean the issues are unimportant or will go away.

It seems the mainstream just wants us to feel good that the Obama administration was so transparent.

Heck, his gang was almost as transparent as your own private communications may have been to them.

Read more here:
Bombshell Doc Reveals Massive Breaches of 4th Amendment By Obama NSA, FBI - MRCTV (blog)

Law Enforcement Should Not Be Able to Bypass the Fourth Amendment to Search Your Devices

Sending your computer to Best Buy for repairs shouldnt require you to surrender your Fourth Amendment rights. But thats apparently whats been happening when customers send their computers to a Geek Squad repair facility in Kentucky.

We think the FBIs use of Best Buy Geek Squad employees to search peoples computers without a warrant threatens to circumvent peoples constitutional rights. Thats why we filed a Freedom of Information Act (FOIA) lawsuit today against the FBI seeking records about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of peoples devices. Read our complaint here [PDF].

EFF has long been concerned about law enforcement using private actors, such as Best Buy employees, to conduct warrantless searches that the Fourth Amendment plainly bars police from doing themselves. The key question is at what point does a private persons search turn into a government search that implicates the Fourth Amendment. As described below, the law on the question is far from clear and needs to catch up with our digital world.

A federal prosecution of a doctor in California revealed that the FBI has been working for several years to cultivate informants in Best Buys national repair facility in Brooks, Kentucky, including reportedly paying eight Geek Squad employees as informants.

According to court records in the prosecution of the doctor, Mark Rettenmaier, the scheme would work as follows: Customers with computer problems would take their devices to the Geek Squad for repair. Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space on the devices for evidence of suspected child porn images and then report any hits to the FBI for criminal prosecution.

Court records show that some Geek Squad employees received $500 or $1,000 payments from the FBI.

At no point did the FBI get warrants based on probable cause before Geek Squad informants conducted these searches. Nor are these cases the result of Best Buy employees happening across potential illegal content on a device and alerting authorities.

Rather, the FBI was apparently directing Geek Squad workers to conduct fishing expeditions on peoples devices to find evidence of criminal activity. Prosecutors would later argue, as they did in Rettenmaiers case, that because private Geek Squad personnel conducted the searches, there was no Fourth Amendment violation.

The judge in Rettenmaiers case appeared to agree with prosecutors, ruling earlier this month that because the doctor consented both orally and in writing to the Geek Squads search of his device, their search did not amount to a Fourth Amendment violation. The court, however, threw out other evidence against Rettenmaier after ruling that FBI agents misstated key facts in the application for a warrant to search his home and smartphone.

We disagree with the courts ruling that Rettenmaier consented to a de-facto government search of his devices when he sought Best Buy's help to repair his computer. But the court's ruling demonstrates that law enforcement agents are potentially exploiting legal ambiguity about when private searches become government action that appears intentionally designed to try to avoid the Fourth Amendment.

The FBI's use of Geek Squad employees to do their dirty work of searching people's devices without warrants is in part possible because there is a legal distinction between searches conducted by purely private parties and searches by private parties done on behalf of government agents.

The Fourth Amendment protections for persons, houses, papers, and effects, against unreasonable searches and seizures, only protects against searches conducted by state actors or someone deputized to act on their behalf.

That means if a private actorlike your next door neighborbreaks into your home and finds evidence of a crime, theres nothing keeping the police from using your illegally gotten property or information against you. The neighbor may be liable for trespass, but it wouldn't amount to a Fourth Amendment violation. This is called the private search rule and it applies unless a court determines that the private actors are working for the government when conducting the illegal searches.

The federal appeals court covering California and other western states has ruled that determining whether a party is a state or private actor comes down to two elements: (1) whether government officials knew of and agreed to the intrusive search and (2) whether the party conducting the search intended to assist law enforcement or further her own ends.

Under this rubric, the FBI's Geek Squad informants should plainly qualify as agents of the government. The records disclosed thus far indicate that FBI agents paid Geek Squad informants to conduct these wide-ranging searches of customers' devices, suggesting that officials both knew about the searches and directed the informants to conduct them. The payments Geek Squad informants received also demonstrate that they conducted the searches with the intent to assist the FBI.

Because both factors are present in the FBI's use of Geek Squad informants, we think any court encountering facts similar to Rettenmaier's should rule that the Fourth Amendment applies to the searches conducted at Best Buy facilities. Because the Fourth Amendment generally requires the FBI to obtain warrants before searching devices, the warrantless searches by Geek Squad personnel were the result of an unconstitutional search and thus any evidence obtained as a result of the illegal searches should be thrown out of court.

However, even if the Geek Squad is found to be a state actor, the government may still argue that computer owners waived any reasonable expectation of privacy in their digital files when they consented to Best Buys terms for repairing their devices. The U.S. Supreme Court applies a reasonable person standard when a property owner is aware that they are consenting to a government search.

This proved to be the pivotal argument in Rettenmaier's case, as the government argued in its briefs that computer owners waived their Fourth Amendment rights by signing a written form stating that they are on notice that any product containing child pornography will be turned over to the authorities.

We disagree with the government's flawed argument. While the Best Buy service contract does put customers on notice that it will report child porn to the FBI if it finds it, we don't think it comes close to informing customers that Geek Squad employees are working for the FBI and will search their hard drives far beyond the scope of permission customers gave. As the Rettenmaier motions show, it appears that Best Buy staff searched unallocated storage space where the problems with the computer would not be found.

When a customer turns their devices over to Best Buy or any other repair shop, their consent to searches of their devices should be limited to where the problems with the computer are locate. Thus, customers cannot plausibly consent to expansive searches of their entire devices.

A real world analogy highlights the absurdity of the government's argument. When you go to the doctor for a sore throat, you dont expect the doctor to order an MRI of your entire body.

The FBI's exploitation of the private search doctrine by relying on Geek Squad informants to conduct searches of people's devices is incredibly problematic. As technology advances, the wealth of information that may be stored or accessed from our digital devices implicate profoundly more private spheres of our lives, from protected medical and financial information to personal information about our friends, family, and loves ones.

If courts continue to rule that the Geek Squad informants arenot state actors,thenthey are free to turn over any evidence they find to the government and law enforcement can then reconstruct the private partys search free of any Constitutional taint to then obtain a warrant for the evidence. This subverting of Constitutional protections is made possible by an outdated and problematic legal concept known as the Third Party Doctrine that bars Fourth Amendment protection when a user voluntarily shares information with a third party (here, the Geek Squad), thus defeating any reasonable expectation of privacy in the evidence. This legal theory has been applied to eviscerate individual privacy interests in such private information as bank records shared with your financial institution and cell site location information shared with your cell phone providers and produced to law enforcement without a warrant.

Currently, theres a circuit split on how this search reconstruction may take place. In the Fifth and Seventh Circuits, courts permit law enforcement to search the entire computer without a warrant based on the private partys search. In contrast, the Sixth and Eleventh Circuits restrict government searches only to the files searched by the private party. And in at least one district court in the Northern District of Indiana, the court decided that a private computer repairman had the authority to consent to a government search on behalf of the computer owner by virtue of his possession of the device.

We think that the FBI's use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires. EFF continues to look for opportunities to challenge this type of law enforcement behavior. If you have had your digital devices sent to the main Best Buy repair hub in Brooks, Kentucky for repair and it resulted in criminal proceedings against you, contact us at info@eff.org.

More:
Why We're Suing the FBI for Records About Best Buy Geek Squad Informants - EFF