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Category Archives: Fourth Amendment

Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car’s electronic data unconstitutional,…

Posted: November 3, 2019 at 2:44 pm

The Fourth Amendment has received significant attention in recent court rulings involving surveillance, electronic data retrieval, and other types of technology. Two rulings issued on October 21, 2019 demonstrate how difficult it can be to anticipate the outcome of Fourth Amendment disputes relating to technology. In one, the Georgia Supreme Court found the warrantless search of electronic data from a car following a fatal accident to be unconstitutional. In the second, the U.S. Court for the Western District of Tennessee held that the Fourth Amendment permitted the warrantless placement of a government surveillance camera on a mans private hunting and fishing property.

Mobley v. State (Ga. Oct. 21, 2019)

In Mobley, the Georgia Supreme Court ruled that a trial court erred in denying a motion to suppress evidence that law enforcement retrieved from the electronic data recorder in the defendants car. In coming to this conclusion, the Mobley court ruled that regardless of any reasonable expectation of privacy the physical entry of a police officer into the defendants car to retrieve the electronic data was a search for Fourth Amendment purposes.

The Mobley case arose after a car driven by defendant Mobley collided with a car that pulled out of a private driveway; both occupants of the latter car died. Before the cars were removed from the accident scene, a police investigator entered both cars, and attached a crash data retrieval device to data ports in the cars to download available data. The data revealed that shortly before the collision, Mobleys car was traveling almost 100 miles per hour. The next day, law enforcement applied for a warrant to seize the electronic data recorders. The warrant was issued, but no additional data was retrieved from the recorders. A grand jury indicted Mobley on a number of counts, including vehicular homicide.

Mobley moved to suppress evidence retrieved from the data recorder, arguing that it was an unreasonable search and seizure in violation of the Fourth Amendment. The trial court denied the motion, finding that because police obtained a warrant for the data the following day, and the warrant application did not rely on data from the device, that data would have inevitably been discovered by investigators.

Mobley appealed, and the Georgia Court of Appeals affirmed. The appeals court found Mobley had no reasonable expectation of privacy in the data, as much of it such as approximate speed and whether a driver applied the brakes could be observed by a person looking at the car based on speed reduction or brake light activation.

Last week, the Georgia Supreme Court reversed. Noting that the Fourth Amendment is concerned with government trespasses upon the rights of individuals to be secure in their persons, houses, papers, and effects, the court determined that the retrieval implicated Mobleys Fourth Amendment rights, regardless of any reasonable expectation of privacy. The court pointed out that while the reasonable expectation of privacy inquiry established in Katz v. United States, 389 U.S. 347 (1967) is one way of determining whether the Fourth Amendment is implicated, that analysis did not replace the traditional trespass test. Because entering Mobleys vehicle was trespassory in nature, the reasonable expectation of privacy inquiry was unnecessary.

Georgias highest court then concluded that because the data retrieval occurred without a warrant it was an unreasonable search and seizure that violated the Fourth Amendment. Also, because the record did not show the law enforcement officers were actively pursuing a warrant at the time the data was retrieved, the retrieval did not fit into the narrow inevitable discovery exception. Thus, the court held that the motion to suppress should have been granted.

In addition to re-affirming the vitality of the trespassory inquiry post-Katz, Mobley also demonstrates that adherence to criminal procedure must not take a back seat to the speed and convenience of digital data collection.

Hollingsworth v. United Sates Fish and Wildlife Service, et al. (W.D. Tenn. Oct. 21, 2019)

While Mobley may be hailed by privacy advocates, the Western District of Tennessees ruling in Hollingsworth is likely to be less enthusiastically embraced, despite being grounded in solid precedent. In Hollingsworth, the court dismissed constitutional claims against the U.S. Fish and Wildlife Service, an agent for the service, and an agent of Tennessees Wildlife Resources Agency based on a camera positioned on plaintiff Hollingsworths property to surveil him. The court found that the Fourth Amendment was not implicated because although the camera was on plaintiffs property, it was in an open field rather than on the property surrounding plaintiffs home.

The case arose after Hollingsworth found a camera mounted to a tree in the interior of property he used for hunting and fishing. Hollingsworth removed the camera and found pictures of men he believed to be the defendants on the SD card it contained. Hollingsworth sued the individual agents and their respective agencies for Fourth Amendment violations and trespass, although the claim against the state wildlife agency was dismissed on sovereign immunity grounds. The remaining defendants moved to dismiss.

The court observed that while the Fourth Amendment protects houses against unreasonable searches, that protection extends only to the dwelling and the surrounding land (known as the curtilage) where privacy expectations are most heightened. However, the Fourth Amendment does not prohibit all investigations on private property, such as in those areas which are more easily accessible to the public and less intimate to ones home. Such areas beyond the curtilage are considered open field, and intrusion upon those areas is not considered a search of ones house.

As a result, the court found that even though Hollingsworth found the camera in a position designed to record his entrance and exit from his property, and even though his property was posted and landlocked by other parcels, the use of the camera did not constitute a Fourth Amendment violation. This was true even where the defendants had to commit a trespass to reach the area where they placed the camera, because the Fourth Amendment protects a smaller scope of property than trespass law does. The court also explained that prior cases had held that areas outside of the curtilage still could be considered open field despite efforts to prevent unwanted guests from intruding, such as the use of fences, locked gates, and no trespassing signs. Further, the court explained that a reasonable expectation of privacy analysis was unnecessary, because courts have consistently held that individuals cannot have such an expectation in open field property. Finally, the court dispatched with Hollingsworths argument that the use of a surveillance camera to observe his movements was analogous to the GPS tracking of a persons movements addressed in U.S. v. Jones, 565 U.S. 400 (2012), because the Jones holding relied on the determination that a car was an effect for Fourth Amendment purposes and thus in the zone of constitutional privacy, whereas an open field is not.

Conclusion

Although it may seem illogical that the Fourth Amendment would tolerate the warrantless placement of a surveillance camera on an individuals property but not the use of information for which a warrant was obtained the next day, both decisions are grounded in long-standing precedent. Although neither vehicle data recorders nor surveillance cameras existed at the time the Fourth Amendment was drafted, the trespassory inquiry and open field doctrine are both sufficiently developed to adequately address new technology. Technological developments can pose issues where the law is ill-suited to adapt to novel issues, but for now, it appears that Fourth Amendment jurisprudence is flexible enough to tackle changing circumstances. However, had Hollingsworth involved, for example, a highly powerful zoom lens or drone, the argument against applying the open field doctrine might have been stronger.

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Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car's electronic data unconstitutional,...

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Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover – Reason

Posted: at 2:44 pm

Next Monday, the Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. Glover. Glover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car? Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Glover touches on a conceptually rich Fourth Amendment question I have written about before, and I wanted to offer a few thoughts about different ways the Justices might approach it.

I. What is the nature of reasonable suspicion?

The most interesting part of Glover, I think, is that it raises a fundamental question about the nature of the reasonable suspicion testand of likelihood thresholds in Fourth Amendment law, such as probable cause, more broadly.

Here's the context. The norm in Fourth Amendment law is for every case on likelihood thresholds to be fact-specific. To learn what reasonable suspicion or probable cause mean, you start by reading what the precedents say the standards are. But the doctrinal statements of the standard are vague in isolation. To really learn the law, I think, you need to read a bunch of Supreme Court cases. After you read a bunch of cases, you get a what Karl Llewellyn would call a "situation-sense" for what kind of degree of plausibility the standards require.

This common-sense, totality-of-the-circumstances inquiry doesn't produce a lot of rules on what facts amount to enough suspicion. But both reasonable suspicion and probable cause become pretty predictable when you study Fourth Amendment law because they're based on a kind of feel that you learn to develop when you read the cases. Even thought the doctrinal tests can be vague in their words, every police officer and every judge with a criminal docket eventually develops a situation-sense of where the lines are. There are disagreements on occasion, but they're relatively rare.

II. The Unusual Feature of Glover

Glover is unusual because it involves a recurring fact pattern that is based on likelihoods likely outside our typical experience. First, the police see a car and run a license check. Second, the license check reveals that the registered owner has a suspended license. The question is, does the license suspension create reasonable suspicion to stop the car? It's harder to answer that based on our situation-sensethan it usually is in Fourth Amendment cases, I think, as it would seem to depend on dynamics that most people don't often encounter.

Consider the questions you'd want to think about. First assume that the case before you is is entirely typical and generic. To answer the typical case, you'd probably want to know two things. First, how often do non-owners drive an owner's car? And second, how frequently do people with suspended licenses continue to drive?

That's a start. But then you would want to know if the particular case before you is typical. While we might have answer for the odds in a typical case, any particular case might be quite different. Variation may be common. And that can change the odds.

Consider two examples. First, how often non-owners drive a car may vary based on the city or even the neighborhood where the car is found. Family size is one possible concern. In a town like Fresno where 37% of households include kids, there's a decent chance that teenage drivers might be driving the family car. In a city like San Francisco where only 16% of households have kids, that's less likely. Along the same lines, the kind of car might make a difference. I would guess that a new Porsche 911 is very likely to be driven by its registered owner. On the other hand, a family minivan likely would have more possible drivers.

The same dynamic applies to the rates at which people still drive after their licenses have been suspended. That plausibly varies based on the reasons why a particular jurisdiction suspends licenses. For example, Illinois may suspend your license if you don't pay your parking tickets. In California, on the other hand, they won't. I would imagine that people are particularly unlikely to stop driving when their licenses are suspended for unpaid parking tickets, either because they don't have the money to pay but need to drive or else they don't think unpaid tickets are a big deal. The key point, it seems to me, is that state or local policies can change the likelihood that spotting a car on the road when the owner's license was suspended means that a crime is afoot.

III. Three Conceptual Ways Forward

So how do you try to figure out if there is reasonable suspicion in Glover? In light of the above discussion, I think there are three basic conceptual approaches:

A. Continue to focus on the overall gestalt sense of whether there is reasonable suspicion. Under this approach, you would treat Glover like any other reasonable suspicion case. You'd try to get a rough sense whether in general an owner's suspended license will create reasonable suspicion when the car is spotted on the road. You would recognize some special cases will be different, as you might be in a place where those rough senses aren't justified or dealing with a particular car or time when you might expect a different result. But you'd reach the answer guided by the rough sense, the feel, of the likelihood.

B. Focus on the statistical likelihood of a typical case. Under this approach, you would want to know the typical empirics of how many cars there are per driver and how license suspensions affect driving patterns. You could then estimate a rough likelihood that a typical stop based on a suspended license is going to involve the suspended owner behind the wheel. You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

C. Focus on the statistical likelihood of that actual case. Under this approach, you would try to develop a statistical model of that particular stop. You would recognize that the likelihood of reasonable suspicion varies based on local factors, ranging from the jurisdiction to the neighborhood to the car to the time of day. As a result, instead of answering the likelihood of finding the driver behind the wheel in some generic case, you would try to figure out the likelihood of it based on all the kinds of local factors that would be known when the officer makes the stop. You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

IV. We've Been Here Before: Florida v. Harris

At this point you're probably wondering: Hasn't this problem come up before? And indeed it has. I see a lot of conceptual similarities between Glover and a 2013 probable cause case, Florida v. Harris, 568 U.S. 237 (2013). In Harris, the state court below went for approach C. The U.S. Supreme Court reversed, adopting approach A.

Harris asked whether a positive alert from a drug-sniffing dog was sufficient to create probable cause that drugs were present in the car. As I see it, the dog's alert on the car was sort of like the license check that reveals the car owner's suspended license. It was a single triggering event, with the likelihood probably outside our everyday experience, which could vary in significance. The question in Harris was, how do you know when the alert was sufficient?

In the decision below, the Florida Supreme Court took option C above. That is, the Florida court assessed the statistical likelihood that each particular dog's alert created that particular probable cause. That approach required the government to produce a lot of information about that particular dog to be able to assess the reliability of its alerts. In each case, the Florida Supreme Court ruled, the State was required to

present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.

The U.S. Supreme Court granted cert and unanimously reversed. Instead of the Florida court's approach C, the U.S. Supreme Court took approach A.

According to Justice Kagan, writing for the majority, the Florida court's statistical approach had "flouted" the U.S. Supreme Court's guidance on probable cause that "rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach."

The Court's basic thinking was that well-trained drug-sniffing dogs are generally pretty reliable. Based on that, evidence of solid training was usually going to be enough:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

But it wouldn't be enough in every case, as a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses."

The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog's (or handler's) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 ("[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate"). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

V. Which Approach for Glover?

Enough wind-up. What should the Court do with Glover? My own view, consistent with the unanimous opinion in Harris, is that Approach A is the right path forward. That is, the Court should get a feel for the general likelihood that the owner is behind the wheel when the police learn that an owner's license is suspended but the car is on the road. No calculations or statistics are needed. As in Harris, it's more a matter of ball-park feel.

And as in Harris, that situation-sense shouldn't be the end of things. Whichever way the Justices see the default, the other side should be able to show that a particular case is special. If the Justices think that an owner-suspension alert normally creates reasonable suspicion, the defense should be able to show specific circumstances when it doesn't. If the Justices think that an owner-suspension alert normally fails to create reasonable suspicion, the government should be allowed to show when it does.

My own sense, I'll add, is that the owner-suspension alert ordinarily creates reasonable suspicion these days. That's largely the case because I think reasonable suspicion is a pretty low threshold. It's more than a hunch, but it's a lot less than probable cause. When the owner of a car has a suspended license but the car is on the road, it's certainly possible that someone else is driving. But my situation-sense is that, these days, it's ordinarily going to be reasonable suspicion. The owner of the car isn't supposed to be driving, but there's the car on the road. It's the kind of thing that a prudent officer would reasonably want to check out to make sure the owner isn't behind the wheel.

VI. The Problem With Fourth Amendment Statistics, and A Response to 17 States and to Professor Crespo

Why not adopt one of the statistical approaches, such as B or C above? The main reason is one I wrote about in this book chapter in 2012, Why Courts Should Not Quantify Probable Cause.

In that chapter, I argued that it's important not to try to quantify probable cause in order to measure it accurately. The basic problem is that you don't know what you don't know. When we quantify, we feel like we're being all scientific. But we're actually blinding ourselves to the intuitions needed to assess probable cause accurately. Using numbers, I argued, would provide a false sense of certainty that blinds us to the intuitions needed to assess probable cause accurately.

I think similar concerns make approaches B or C problematic in Glover. If you come up with a typical likelihood, approach B above, you don't know if a particular case is a typical example. You miss or don't appreciate all the reasons to think a particular case is different. And if you come up with a case-specific likelihood, approach C above, you end up misunderstanding when you have only a partial and inaccurate view of the relevant criteria and factors that misrepresents the odds. It feels scientific, as it has numbers and data. But this is a context in which I think the intuitive approach is more accurate.

This puts me in disagreement with some very interesting amicus briefs, I should add. First, an amicus brief of 17 states adopts approach B. It offers and analyzes empirical evidence of the general odds that a driver-suspension alert will mean that a suspended driver is behind the wheel. It's an interesting brief, and the general odds can help inform intuitions about general cases. But I don't think it can go beyond that.

I also end up in disagreement with Professor Andrew Crespo, who filed a solo amicus brief in Glover in support of the defendant. I think it's fair to say that Professor Crespo favors approach C. In his brief, he argues that the government must provide localized statistical data to establish that the owner-suspension created reasonable suspicion. In particular, he argues that the state should have to provide evidence of "how many times vehicles reportedly registered to unlicensed drivers are actually driven by those individuals when such vehicles are stopped in the relevant geographic area."

I disagree with Professor Crespo for the reasons flagged above. Among the difficulties, what is the level of generality for the "relevant geographic area"? It seems to me that the odds may vary along different geographic criteria, ranging from the state or city (which may determine suspension policies) to the neighborhood (which may be more or less family-friendly) to the specific road (which may be driven by people from different places). The odds also can vary based on non-geographic factors, such as the car (Porsche v. mini-van), the time of day (commuting time vs. night-time), the decade (are we moving to self-driving cars?), or the officer who decided to make the stop.

Even assuming the government can readily collect some kind of data, which is its own problem, it's hard for us to know which criteria matter. And I think that makes it hard to use data about those criteria to say whether a particular stop is one that was justified by reasonable suspicion.

As always, stay tuned. Glover will be argued next Monday, November 4th, 2019.

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Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover - Reason

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Is Trump trying to unleash the Border Patrol on all of America? – The Week

Posted: at 2:44 pm

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Two in three Americans live in the "border zone," a 100-mile stretch inland where some constitutional due process and privacy protections are functionally canceled in the name of border security. The zone includes entire states Delaware, Florida, Hawaii, nearly all of New England, and all but a tiny sliver of Michigan as well as about three in four of our 20 largest metro areas. Is the Trump administration trying to make it bigger?

The prospect seems obviously attractive to immigration hawks like White House senior adviser Stephen Miller, known to be the president's chief influence on border policy. Yet the possible suggestion of interest in expanding the border zone comes not from Miller but acting Commissioner of U.S. Customs and Border Protection (CBP) Mark Morgan, who joined President Trump on stage at a law enforcement conference in Chicago this week.

"We will be building 450 miles of big, beautiful wall by the end of 2020," Morgan said, implausibly. "With every mile of wall that's being built, I promise you, it's not just the cities and towns on the border. I always say: Every town, every city, every state is a border town, a border city, and border state."

Is that just a figure of speech? Because it's blatantly untrue unless the border zone goes national.

My suspicion here may seem unfounded, and I hope it is. But I think there are two good reasons to be wary.

The first is the nature of the border zone, which too few Americans realize exists. The Fourth Amendment protects our right "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures" and requires specific probable cause before search warrants are issued. But at the border, CBP agents are allowed to conduct searches of bags and vehicles without meeting those requirements. And in 1953, the Justice Department issued a regulation saying these relaxed rules apply within a "reasonable distance" from the actual border, a term the DOJ defined as 100 miles.

The 100-mile decision was made by unelected administrators. It wasn't open to public input, nor was it determined by our representatives in Congress. Nevertheless, the Supreme Court upheld the rule in 1976 in U.S. v Martinez-Fuerte, where the 7-2 majority wrote that usually law enforcement must have "individualized suspicion" to breach someone's privacy, but as long as the Border Patrol checkpoints are "reasonably located" (i.e. within the 100-mile range), agents can stop, search, and question motorists without any particular cause.

As the minority opinion noted, there's "no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied." The fact that CBP agents typically won't be able to establish probable cause by looking at a moving vehicle should not mean they get to ignore the Constitution. That's not how rights work, and this "papers, please" style of law enforcement is fundamentally un-American.

Yet even if you agree with the theory of the 100-mile rule, the practice is a disaster and sees CBP authority expanded well past what Martinez-Fuerte permitted. As Cato Institute scholar and former CIA analyst Patrick Eddington has detailed, CBP agents "elect to ignore the court's admonition in the Martinez-Fuerte ruling that 'any further detention ... must be based on consent or probable cause.'" They've "used violence to remove motorists from their vehicles when they decline to answer questions after asserting their rights;" expanded their searches to planes, buses, and trains; and used the checkpoints in service to the wars on drugs and terror. (No terrorists have ever been arrested this way.)

The upshot, as the ACLU has reported in its extensive coverage of the border zone, is CBP "agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing, and often in ways that our Constitution does not permit." And in the years since the 100-mile rule was created, Border Patrol agents have grown from a force of 1,100 to around 21,000, with an estimated 170 permanent "interior checkpoints." What may have been relatively innocuous at the start is now a major problem.

That brings us to the second reason to be worried by Morgan's remark: The border zone as it exists today was implemented with remarkably little pushback. The Border Zone Reasonableness Restoration Act of 2019 would reduce the zone to 25 miles, but that would still include most major cities in the current designation and it has no legislative traction anyway.

If neither Congress nor the Supreme Court objects to this status quo, why would we expect them to object to extending the border zone to include the final third of the population? If it's fine to have CBP infringing around 200 million people's Fourth Amendment rights, what's another 100 million?

It's not true that every town, every city, every state is a border town, a border city, and border state. The unchallenged corruption of the border zone gives us good cause to be leery of any talk that suggests they are.

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Is Trump trying to unleash the Border Patrol on all of America? - The Week

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Edward Snowden says Facebook is just as untrustworthy as the NSA – Vox.com

Posted: at 2:44 pm

American whistleblower Edward Snowden is living a life of exile in Russia because he shared thousands of top-secret government documents with journalists. But six years after he exposed how the US government surveils the digital lives of everyday Americans, Snowden is not just worried about the powers of government agencies like the National Security Agency (NSA), hes concerned about big technology companies, too.

In an upcoming interview with Recodes Kara Swisher on the Recode Decode podcast, Snowden said he thinks its a mistake to see the NSA as a bigger threat to privacy than tech companies.

Facebooks internal purpose, whether they state it publicly or not, is to compile perfect records of private lives to the maximum extent of their capability, and then exploit that for their own corporate enrichment. And damn the consequences, Snowden told Swisher. This is actually precisely the same as what the NSA does. Google ... has a very similar model. They go, Oh, were connecting people. They go, Oh, were organizing data. Although, Snowden said, these companies still dont know as much as the government, which can gather information from all of the many tech platforms.

Snowden was talking to Swisher about the publication of his new book, Permanent Record, in which he details his journey from an idealistic young national security contractor, eager to help protect the US from foreign threats in the aftermath of 9/11, to a disillusioned whistleblower. The massive government surveillance effort he revealed in 2013 wouldnt be possible without the data-gathering that tech companies do in the first place, Snowden said.

The more Google knows about you, the more Facebook knows about you, the more they are able ... to create permanent records of private lives, the more influence and power they have over us, Snowden told Swisher. There is no good reason why Google should be able to read your email. There is no good reason why Google should know the messages that youre sending to your friend. Facebook shouldnt be able to see what youre saying when youre writing to your mother.

Snowden also pointed out that the Fourth Amendment which protects citizens from searches unless law enforcement has a warrant or probable cause only applies to government, not to companies. So while the FBI might need a warrant to probe your inbox, theres no constitutional barrier to a company like Facebook searching and retrieving peoples private information without a judges approval.

The former NSA systems engineer said to better protect people from being exploited by the data collection of major tech companies, the US should have software liability laws. These would be similar to consumer product liability regulations that can hold companies and executives responsible for selling physical goods that harm people.

We have serious liability laws in every other sector, said Snowden. If you produce medicine and put it on the shelves and your baby aspirin kills babies, you get sued. You go to jail, right? If you build a car and it catches on fire and kills people, you get sued, your company might get shut down, you might go to jail. We have no software liability laws in the United States.

Recently, companies such as Facebook, Google, and Amazon have come under fire by regulators for their perceived negative effects on society from alleged monopolistic practices to data breaches.

When you look at technologists as a class, were at a fork in the road, said Snowden. There is a class led by Mark Zuckerberg that is moving toward the maximization of technological power and influence that can be applied to society because they believe they can profit by it or, rightly or wrongly, they can better use the influence that their systems provide to direct the world into a better direction. ... And then you have this other fork in the road where there are people ... [who] go, The advance of technology is inevitable and technology can do very good things for the world, but we need to understand that there must be limits on how that technological power and influence can be applied.

Snowden also pushed back on the idea that people dont care about their data privacy because they still use services like Facebook that have notoriously failed to steward user data.

People actually care. They care very much. But they feel powerless to change it, said Snowden, so they adopt a position of laissez-faire, I dont care, as a psychological coping mechanism, because otherwise you are being victimized, and thats a difficult thing to deal with.

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Edward Snowden says Facebook is just as untrustworthy as the NSA - Vox.com

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Strengthened PFA law means more guns turned in to Cumberland County sheriff’s office – The Courier-Express

Posted: at 2:44 pm

One of the largest gun collections in Cumberland County belongs to the sheriffs office, and thanks to a recent change to the state Protection From Abuse law, that collection is growing.

The sheriffs office has long been responsible for collecting weapons required to be surrendered because of PFA orders. However, a new law designed to better protect victims of domestic violence contained two provisions that increase the number of guns the office needs to store.

First, the law which was signed by Gov. Tom Wolf in October 2018 and became effective in April 2019 mandates that all, rather than some, defendants who receive a final PFA order relinquish their firearms while the order is active. Second, it greatly restricts the third-party safekeeping option to firearms dealers and attorneys, banning the practice of giving them to friends and relatives.

Those changes were recommended by advocates for victims of domestic violence, who cite a study showing that domestic violence victims are five times more likely to be killed if their abuser possesses a firearm.

Some counties have received so many more guns thanks to the law that they have encountered storage issues. That isnt a problem in Cumberland County, both because the county has ample storage space available and because the sheriffs office anticipated the laws passage, according to Sgt. Bryan Ward of the Cumberland County Sheriffs Office.

I was fortunate enough to be included in various capacities before the law ever came out, so we knew it was coming, Ward said.

All weapons are stored in an undisclosed location but on county property, he said. He had little difficulty finding storage space that could be altered to meet security requirements for housing firearms, but Cumberland County is absolutely the minority in that regard.

The county is storing about 350-375 guns, a number that has risen in the past three to four years even before the changes to the PFA law, he said. Hes seen about a 25 percent increase in the rate at which guns are turned into the sheriffs office since that law passed earlier this year.

When a defendant is served with a final PFA order, he or she has 24 hours to turn firearms and other weapons over to law enforcement or invoke the narrow third-party safekeeping exception. Weapons can be turned over to the sheriffs office, state police or a municipal police station.

Almost all PFA defendants at least make an appearance of complying with the law, Ward said, providing a list of firearms they possess and surrendering those guns. A defendant who does not turn over all firearms is guilty of a second-degree misdemeanor.

Im sure were lied to a lot, but the (weapons) are not in plain view, and I cant search the house, Ward said.

Pennsylvania does not typically permit the sheriffs office to perform a search of the defendants house and seize weapons because of Fourth Amendment privacy concerns. A 2016 Joint State Government Report said that can nonetheless create compliance problems.

Once the sheriffs office has possession of the weapons, they must be physically kept in storage by the sheriffs office and cannot be used for any purpose, Ward said. The law holds the sheriffs office responsible if anything happens to those weapons.

When a PFA expires, Ward searches the Pennsylvania Instant Check System database to ensure the person can lawfully possess a firearm. He will then contact the defendant and schedule a time for the person to regain possession of their gun.

Daniel Walmer covers public safety for The Sentinel. You can reach him by email at dwalmer@cumberlink.com or by phone at 717-218-0021.

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The FISA Court’s 702 Opinions, Part I: A History of Non-Compliance Repeats Itself – Just Security

Posted: October 20, 2019 at 10:18 pm

Last week, the Office of the Director of National Intelligence released three redacted opinions of the Foreign Intelligence Surveillance Court (also known as the FISA Court) and the FISA Court of Review (FISCR). In the first opinion, the FISA Court held that the FBIs procedures for accessing Americans communications that are incidentally collected under Section 702 of FISA violated both the statute and the Fourth Amendment. The government appealed, and in the second opinion, the FISCR upheld the FISA Courts decision. The FBI was forced to revise its procedures to conform with the Courts ruling, and in the third opinion, the Court approved the revised procedures.

The government will no doubt try to sell this as an oversight success story. After all, the Department of Justices audits had detected instances of FBI non-compliance with legal requirements, and the Department reported those instances to the FISA Court. The Court solicited the assistance of amici and adopted their position in significant part. It ordered remedies that the FBI is now required to implement. And all of this became public because Congress in 2015 required the disclosure of significant FISA Court opinions. The system worked, right?

I see a very different story. This is now the fourth major FISA Court opinion on Section 702 in 10 years documenting substantial non-compliance with the rules meant to protect Americans privacy. The opinion, moreover, reveals that the FBI is conducting literally millions of backdoor searchesincluding so-called batch queries that rest on the same discredited legal theory used to justify the NSAs bulk collection of Americans phone records. Despite the enormous implications for Americans privacy and the governments dismal record, the remedy suggested by amici and imposed by the Court was just more record-keeping. And the government sat on the opinion for a year, hoping for an appellate victory that would help mitigate the PR damage from disclosure.

Background: Section 702s Troubled History

To put the Courts recent opinions in context, some background is necessary. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), passed in 2008, the National Security Agency (NSA), operating inside the United States, is authorized to collect communications of foreigners overseas for foreign intelligence purposes. No warrant is required for this collection because courts have held that foreigners have no Fourth Amendment rights. Instead, each year, the FISA Court must sign off on the procedures that govern the surveillance.

Although ostensibly targeted at foreigners, Section 702 surveillance inevitably sweeps in massive amounts of Americans communications. Recognizing the impact on Americans privacy, Congress required the NSA to minimize the sharing, retention, and use of this incidentally collected U.S. person data. But the government and the FISA Court have embraced an interpretation of minimize that is remarkably maximal. The NSA shares raw data with multiple other agenciesincluding the FBI and the CIAand all of them retain the data for a functional minimum of five years. Moreover, the FBI routinely combs through it looking for Americans communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation.

In 2011, the government disclosed to the FISA Court that it had misrepresented the nature of its upstream collection activities under Section 702. (Upstream collection takes place as the communications are transiting over the Internet backbone; downstream collection acquires stored communications, usually from the servers of Internet Service Providers.) When conducting upstream surveillance, the government was acquiring, not just communications to or from the targets of surveillance, but communications that simply mentioned certain information about them (known as abouts collection). As a result, the government was acquiring packets of data containing multiple communications, some of which had nothing to do with the target. This included tens of thousands of wholly domestic communications.

The Court was not pleased to learn about this significant issue three years into the programs operation. It held that the governments handling of the data violated the Fourth Amendment, and it required the government to develop special rulesapproved by the Court in 2012for segregating, storing, retaining, and accessing communications obtained through upstream collection.

In 2015, the Court was under the impression that these rules were being followed. However, in approving Section 702 surveillance that year, it noted several incidents of non-compliance with other rules designed to protect Americans privacyincluding FBI violations of protections for attorney-client communications, a failure of access controls by the FBI, and the NSAs failure to purge certain improperly collected data. Once again, the Court expressed displeasure at being notified of infractions long after they occurred.

In 2016, the FISA Court learned that the NSA had been violating the rules established in 2012. Because those rules were designed to remedy a Fourth Amendment violation occurring since the start of the program, the NSAs non-compliance meant that its upstream collection activities had been operating unconstitutionally for eight years. Moreover, the government did not report this issue for several months after discovering it. Unable to bring itself into compliance, the NSA made the only decision it could: In the spring of 2017, it abandoned abouts collection, which was at the root of the problem.

When Section 702 came up for reauthorization in late 2017, civil liberties advocates pointed to this troubled history. They also pointed to a growing body of case law holding that searches of government databases can, in certain circumstances, constitute a separate Fourth Amendment event. They argued that government agencies should be required to obtain a warrant before searching Section 702-obtained data for the communications of Americans (a practice formally called U.S. person queries and informally dubbed backdoor searches). They also urged Congress to ban abouts collection, lest the government attempt to resume it.

Congress rejected these proposals. Although Congress did require the FBI to obtain the FISA Courts permission to conduct U.S. person queries in a tiny sliver of cases, it blessed the vast majority of these searches, which previously had no foundation in the text of Section 702. It simply required the FBI to develop querying procedures that the FISA Court would have to approve. It also required the FBI to keep records of each U.S. person query it conducted. With respect to abouts collection, Congress required the government to obtain FISA Court approval and to give Congress advance notice before resuming the practice.

The Courts October 2018 Ruling

In March 2018, the government submitted its annual certifications and procedures to the FISA Court for its approval. In a decision dated October 18, 2018, and released last week, the FISA Court held that the FBIs minimization procedures violated both the statute and the Fourth Amendment. The Courts opinion addresses three main practices by the FBI: downstream collection of certain communications; the FBIs failure to record USP queries; and the FBIs improper use of USP queries.

Downstream collection and abouts communications. Although this section of the opinion is highly redacted, it appears that the government is engaged in a new form of downstream collection that raised a flag for the FISA Court. The Court solicited amicis advice about whether the statutory preconditions for resuming abouts collection apply to downstream collection, and whether certain activities in the governments 2018 certifications involve the acquisition of abouts communications. Amici argued that the answer to both questions was yes; the governments answer was no in both cases. The Court split the baby, holding that the statutory requirements apply to any kind of abouts collection, but that no such collection would occur under the governments certifications.

The heavy redactions make it difficult to assess the significance of this part of the opinion. However, on its face, the definition of abouts collectionbasically, anything other than a communication to or from the targetshould not be difficult to apply. It is worrisome that the government and amici reached different conclusions about whether a certain form of collection merited the label abouts. The uncertainty strongly supports a suspicion civil liberties advocates have held for some time: that the selectors the government uses to identify the communications to be collected are not necessarily unique identifiers (such as email addresses), but can sweep in people other than the intended targets (as would, for instance, IP addresses).

The statutory requirement to count U.S. person queries. In its January 2018 reauthorization of Section 702, Congress ordered the government to adopt querying procedures that included a technical procedure whereby a record is kept of each United States person query term used for a query. Instead, in the querying procedures that the FBI submitted to the FISA Court, the Bureau announced that it intends to satisfy the record-keeping requirement by keeping a record of all queriesin other words, the FBI would lump together U.S. person queries and non-U.S. person queries, without distinguishing between them.

The government defended this approach with a weak argument that the statutory text was somehow ambiguous, and that both the legislative history and policy considerations weighed against requiring the FBI to document U.S. person queries. In a refrain often heard when an intelligence or law enforcement agency is asked to devote time or resources to safeguarding civil liberties, the government claimed that requiring the FBI to figure out whether a particular investigative subject was a U.S. person would divert resources from investigative work . . . to the detriment of public safety.

The FISA Court has historically yielded to such pleas, and on this occasion, the Court seemed sympathetic. Ultimately, however, the Court concluded that it had no choice. It stated: Regardless of how persuasive the FBIs considerations may be, the Court is not free to substitute its understanding of sound policyor, for that matter, the understanding of the Director of the FBIfor the clear command of the statute. The law, the Court held, was unambiguous in its directive to count U.S. person queries.

On appeal, the FISCR upheld the Courts ruling on this question. The FISCR, however, seemed somewhat less sympathetic to the governments position. Under the FBIs querying procedures, U.S. person query term is defined as a term that is reasonably likely to identify one or more specific United States persons. This definition does not require a high level of certainty. Moreover, the procedures provide for the application of default assumptions in cases where specific information is lacking. Under these circumstances, it is hard to argue with the FISCRs assessment that counting U.S. person queries is not a burdensome substantive requirement, and that it would simply mean adding one (largely ministerial) item to the checklist that FBI personnel most likely already work through when conducting queries for investigative purposes.

Somewhat oddly, the FISCR did not resolve the other major issue on appeal: whether the FBIs repeated violations of its own querying and minimization procedures rendered those rules unlawful and unconstitutional as implemented. Those violations, and the FISA Courts failure to require an adequate remedy for them, will be the subject of Part II of this post.

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Commentary: What the gun lobby gets wrong about the Second Amendment – The Daily World

Posted: at 10:18 pm

The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.

The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.

In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a fundamental right, that interest prevails over all countervailing public concerns.

That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.

Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices like pulling children out of school after the eighth grade might be considered problematic or harmful.

But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the publics ability to regulate that activity in ways that may be needed to protect the community.

The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the publics interest against the individuals liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.

For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.

So too with protections for personal privacy under the Fourth Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesnt bar all searches and seizures, but instead requires that such intrusions be reasonable, a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.

The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in peoples homes, it observed that states could for historical and public-policy safety reasons prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the Second Amendments protection takes account of countervailing public objectives.

For instance, some states require that gun owners keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.

Or consider the contours of self-defense itself. A Second Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the Second Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable nonlethal alternatives were available for the shooter to defend himself.

The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.

In evaluating gun control regulations, its legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms.

Constitutional analysis of the Second Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the states need to promote public safety.

Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor of law at the UC Davis School of Law.

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How to Address Newly Revealed Abuses of Section 702 Surveillance – Just Security

Posted: at 10:18 pm

Newly declassified judicial opinions, released last week, revealed that the government has again violated the rules for access to vast databases containing Americans private communicationsand that its warrantlessly searching these databases on a massive scale.

The databases contain communications collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial statute that authorizes the warrantless collection of Americans international communications in the name of foreign intelligence. Relying on this law, the government vacuums up billions of Internet and phone communications and stores them for years in agency systems. These databases include untold volumes of sensitive and private information, including the communications of Americans suspected of no wrongdoing.

Once these conversations are intercepted and stored, the FBI and other agencies exploit whats known as the backdoor search loophole: they query Section 702 databases for information about Americans, including in criminal investigationswithout obtaining a warrant at any stage of the process. Only a handful of anemic statutory and court-ordered restrictions apply to the governments backdoor searches. The Foreign Intelligence Surveillance Court (FISC) has held that the FBI is permitted to engage in these warrantless queries so long as the FBI believes a query is reasonably likely to return foreign intelligence information or evidence of a crimea very low threshold.

As Liza Goitein outlined, the opinions released last week provide an unprecedented look at the breadth of the FBIs backdoor searches, and they show that the FBI has failed to abide by even the most minimal limitations. In particular:

Faced with these violations, in October 2018, the FISC found that the FBIs procedures were inadequate and unreasonable. But it held that the FBI could cure the deficiencies simply by creating records of U.S.-person queries and documenting the basis for its backdoor searches. The FBI initially refused to adopt even these basic requirementsit did so only after appealing to the Foreign Intelligence Surveillance Court of Review (FISCR), which largely endorsed the FISCs opinion.

To put the FBIs violations in context, readers should keep in mind the bigger picture: the constitutional problems posed by warrantless searches of Section 702 databases for Americans information. Nothing in the newly released opinions meaningfully addresses or remedies those problems. Indeed, the FISC continues to allow the FBI to conduct backdoor searches under a remarkably permissive set of rules, including at the earliest stages of criminal investigations.

At bottom, the drawn-out fight in the FISC was about two simple documentation requirements. These requirements are no substitute for a warrant. Even if the FBI could manage to properly document its warrantless searches, which it has apparently struggled to do, its queries would violate the Fourth Amendment. The newly released opinions provide even more evidence that the current system fails to adequately protect Americans privacy.

The Backdoor Search Problem

To understand the scope of the constitutional problems with backdoor searches, as well as the rules that the FBI violated, some background:

In 1978, largely in response to unlawful executive branch surveillance, Congress passed the Foreign Intelligence Surveillance Act. To conduct electronic surveillance inside the United States, FISA generally requires the government to apply to the FISC for an order approving surveillance of a particular target. The government must establish, among other things, probable cause to believe that the target of surveillance is a foreign power or agent of a foreign power. Following the attacks of September 11, 2001, the Bush administration conducted widespread warrantless wiretapping of Americans communications without FISC authorization, in violation of FISA. Years later, Congress amended FISA to ratify elements of President Bushs warrantless wiretapping program, as reflected in Section 702.

Section 702 allows the government to target any non-U.S. person abroad who is reasonably likely to communicate foreign intelligence informationdefined expansively to encompass information related to the foreign affairs of the United States. There is no requirement of probable cause to believe that targets are associated with foreign powers, and there is no judicial review of individual targets. Instead, the FISC annually reviews the targeting and minimization procedures that apply to Section 702 surveillance. Targeting decisions are left to the discretion of agency analysts.

Notably, the governments Section 702 targets need not have any connection to terrorism investigations or criminal activity. Targets may be academics, journalists, or human rights workersanyone likely to communicate about foreign intelligence.

The resulting surveillance is incredibly broad. Last year, the United States targeted more than 164,000 individuals and groups under Section 702, likely resulting in the mass collection of more than a billion communicationsincluding emails, video calls, telephone calls, texts, and online chats. This vacuuming up of foreigners messages means a vast number of Americans international communications end up in government hands, too.

Not only are Americans communications warrantlessly collected in enormous quantities, but they are retained for years by default, routinely searched, and used in later investigationsincluding in domestic criminal investigations that are unrelated to the original foreign intelligence purpose behind the surveillance.

In 2014, the Privacy and Civil Liberties Oversight Board explained that the FBI conducts backdoor searches as a matter of course, whenever the FBI opens a new national security investigation or assessment. To better understand the scope of the issue, civil liberties advocates and Congress sought data about precisely how often the FBI conducts these searches. Until very recently, the FBI has refused to count, estimate, or report these numbers.

But as weve now learned from one of the recently declassified FISC opinions, in 2017, the FBI ran 3.1 million searches of Section 702-acquired information, on just one of its systems. Although the FBI records dont differentiate between query terms associated with Americans and those associated with foreigners, the FISC explained that, given the FBIs domestic focus[,] it seems likely that a significant percentage of its queries involve U.S.-person query terms.

As the ACLU has written elsewhere, Section 702 surveillance violates the Fourth Amendment because it permits the government to intercept, use, and disseminate the international communications of U.S. persons without obtaining a warrant or submitting to any kind of individualized court review. The fact that Americans conversations are captured while targeting foreigners abroad does not justify dispensing with these safeguardsand the governments backdoor searches for Americans communications only compound the constitutional problems.

Yet the FBI continues to conduct these searches, even though FBI agents have repeatedly failed to comply with the modest requirements that Congress and the FISC have imposed.

Newly Declassified Opinions Reveal the FBIs Systemic Compliance Violations

The FISC and FISCR opinions declassified last week show that the FBI resisted its congressional mandate to track U.S.-person queries, conducted backdoor searches in violation of existing court-ordered rules for those queries, and resisted documenting the basis for future queriesthwarting meaningful oversight in the process.

The FBIs Failure to Track Backdoor Searches for Americans Communications

When Congress renewed Section 702 surveillance authorities in early 2018, it imposed a documentation requirement for backdoor searches. Each time an agency queries its Section 702 databases with a United States person query term, it is required to create a record of that fact.

In March 2018, the FBI submitted its Section 702 targeting and minimization procedures to the FISC for its annual review. After the FISC expressed initial concerns, the FBI submitted amended versions in September 2018. In the September 2018 procedures, the FBI proposed that it would comply with Congresss new directive by recording all queries of its Section 702 databases, but it would not record or track which of those queries were U.S.-person queries.

In an October 2018 ruling that was declassified just last week, FISC Judge James E. Boasberg painstakingly explained why the FBIs proposal did not satisfy the statute. The FBI then appealed to the FISCR, which likewise concluded that Congress expressly required agencies to record their use of U.S.-person query terms. After the FISCRs ruling, the FBI finally agreed to comply and amended its proposed minimization procedures accordingly. The FISC approved the FBIs revised procedures in September 2019.

Meanwhile, for 21 months, from January 2018 until September of 2019, the FBI did not conduct the count that Congress had mandated as part of its decision to renew Section 702 powers.

The FBIs Failure to Document Its Basis for Its Backdoor Searches

The FISC-approved rules for access to Section 702 communications generally allow FBI agents to conduct backdoor searches when they believe a search is reasonably likely to return foreign intelligence information or evidence of a crime.

In the proceedings leading up to the October 2018 FISC opinion, the government reported that, since April 2017, a large number of FBI queries did not meet the requisite standard. (These improper queries are discussed at length below.)

Although Judge Boasberg concluded that the FBIs querying standard was lawful as written, he held that the FBIs procedures, as implemented, failed to satisfy the requirements of Section 702 and the Fourth Amendment. His holding was based in part on the fact that, unlike personnel at the CIA, NSA, and NCTC, FBI personnel did not memorialize their reasons for believing that query terms were appropriateand this omission contributed to the FBIs significant violations of the querying standard.

Adopting the recommendation of court-appointed amici, Judge Boasberg reasoned that, if the FBI documented the basis for its queries, it would result in fewer violations of the querying standard. Notably, the court proposed documentation in limited circumstances: only after FBI personnel conduct the U.S.-person query, review any responsive metadata, and decide to examine responsive content information.

The FBI refused and appealed to the FISCR. Although the FISCR did not formally reach the issue on appeal, it characterized the documentation requirement as a modest measure that would alleviate the most significant concerns raised by the FISC. Following the FISCRs opinion, the FBI relented and adopted the documentation requirement.

While this modest measure will generate data that could be used for oversight purposes down the road, it does little to restrain the vast number of warrantless queries that the FBI uses to access Americans private communications.

Violations of the Existing Limits on Backdoor Searches

The October 2018 FISC opinion describes substantial and systemic FBI violations of the existing limitations on backdoor searches. Of especially serious concern to Judge Boasberg was the large number of queries evidencing a misunderstanding of the querying standardor indifference toward it[.]

As just one example, the FBI conducted queries using 6,800 Social Security numbers, which are clearly U.S. persons information. Other illegal searches stemmed from investigators trying identify Americans to collaborate as potential confidential sources of information.

In another instance, FBI agents used 70,000 identifiers to search for information about FBI employees or contractorscontrary to the advice of the FBI Office of General Counsel, which had explained that higher-level approval would be required for these searches.

Theres a systemic problem lurking here. Indeed, its of interest that these types of bulk queries could be thought to be permissible at all. One of the issues is that FBI interprets the querying standard quite liberally. It argued to Judge Boasberg that even when an individual query would not satisfy the low querying threshold, it may nevertheless be permissible to engage in so-called categorical batch querying.

In an effort to justify its batch queries, the government posited the following hypothetical: say an employee at a cleared defense contractor has access to certain technology and unlawfully plans to sell it. According to the government, if 100 employees of the contractor have access to that technology, the FBI could properly run a categorical query of the identifiers associated with these 100 employeeseven though a search for any one of those employees on his or her own is impermissible.

The flaws in this logic are obvious. What would prevent the FBI from conducting a batch query using identifiers associated with everyone in a particular neighborhood or city? Although Judge Boasberg was rightly skeptical of the governments reasoning, the new FISC-approved minimization rules do not expressly prohibit categorical batch queries.

Going Forward

In light of what weve learned about the governments backdoor searches of its Section 702 databases, its clear that Congress and the courts have a role to play in safeguarding Americans fundamental privacy rights.

Congress and the courts should prohibit warrantless backdoor searches for the information of Americans and individuals in the United States. These warrantless searches of Section 702 databases violate the Fourth Amendments fundamental protections. The few rules governing these searches havent been followedand they are no substitute for a warrant.

Congress and the courts should protect metadata from abusive searches. Although Judge Boasberg rightly recognized that metadata can implicate privacy interests, he nevertheless allowed the FBI to query and access non-content metadata without documenting the basis for the query. In addition, the FISCs opinion expanded the FBIs ability to indefinitely retain Americans metadata collected under Section 702.

Congress should reform FISA to ensure judicial review of Section 702 surveillance in public courts. To date, no civil court has reached the merits in a challenge to Section 702 collection, in part because of the difficulty litigants face in establishing standing. The ACLU has brought two challenges to Section 702Amnesty International USA v. Clapper, Wikimedia v. NSAthat the government has sought to block on standing grounds.

Given the number of Americans impacted by this novel and invasive surveillance, the public courts have a vital role to play in determining what set of safeguards the Constitution requires.

Courts should enforce the governments compliance with its obligation to provide notice of Section 702 surveillance. The government should, but does not, fully comply with its obligation to notify individuals when it intends to use Section 702 information against them in criminal proceedings. Notice is essential to ensure that defendants subject to this surveillance have the opportunity to challenge it and to seek redress. In order to facilitate this judicial review, courts should require the government to disclose to defendants basic information about how it obtained their communications under Section 702, including the queries that agents used to identify defendants communications.

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Groups Urge Surveillance Reforms as End-of-Year Deadline Approaches – Human Rights Watch

Posted: at 10:18 pm

The Honorable Jerrold Nadler

Chairman

U.S. House Committee on the

Judiciary

2138 Rayburn House Office Building

Washington, D.C. 20515

The Honorable Doug Collins

Ranking Member

U.S. House Committee on the

Judiciary

2142 Rayburn House Office Building

Washington, D.C. 20515

The Honorable Adam Schiff

Chairman

U.S. House Permanent Select Committee on Intelligence

Capitol Visitor Center, HVC-304

Washington, D.C. 20515

The Honorable Devin Nunes

Ranking Member

U.S. House Permanent Select Committee on Intelligence

Capitol Visitor Center, HVC-304

Washington, D.C. 20515

Dear Chairman Nadler and Ranking Member Collins and Chairman Schiff and Ranking Member Nunes,

The undersigned groups write to urge you to ensure that any legislation to reauthorize expiring FISA authorities scheduled to sunset on December 15, 2019 include key reforms to Section 702.

On October 8, 2019, the Office of the Director of National Intelligence released alarming new information related to surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which poses a serious threat to the privacy of both U.S. and non-U.S. persons. The documents reveal significant privacy violations, including the wrongful use of this powerful tool for personal purposes, queries that violated both the statute and the Fourth Amendment, and efforts by the Federal Bureau of Investigation (FBI) to evade laws designed to access how often this tool is turned against people in the United States. In addition, the opinions raise additional concerns regarding the extent of the government's so-called abouts collection.

These abuses demand action by Congress and underscore the need to reform Section 702. In particular, we urge you to ensure that any legislation reauthorizing provisions of FISA include the following reforms:

Congress must prohibit warrantless backdoor searches. Though Section 702 prohibits the targeting of Americans, the government routinely conducts warrantless searches of Section 702-acquired information looking specifically for information of Americans. For years, civil liberties advocates have decried the governments practice of conducting these warrantless backdoor searches as a dangerous end-run around the Fourth Amendment. These documents prove the point, revealing tens of thousands of searches conducted in violation of the law, which requires them to be conducted only when reasonably likely to return foreign-intelligence information or evidence of a crime. In some instances, FBI personnel reportedly even queried FISA information to spy on relatives in violation of the law.

These large-scale privacy violations underscore the significant threat that the backdoor search loophole poses to the rights of people in the United States. They also demonstrate the urgent need to ensure court approval of any searches of Section 702 information looking for information about U.S. persons to prevent abuse. Thus, we urge Congress to prohibit backdoor searches looking for information about U.S. persons absent a probable cause warrant.

Congress must prohibit abouts collection. The documents also raise questions regarding the scope of the governments abouts collection, which involves collection of communications that are not to or from a surveillance target. In response to persistent compliance violations, the government ended certain types of abouts collection in 2017. However, these documents raise questions regarding whether the government is engaged in new abouts collection that Congress did not authorize. Based on the documents, it appears that the Foreign Intelligence Surveillance Court (FISC) rejected arguments made by the appointed amicus regarding whether certain surveillance practices could constitute abouts collection, which would trigger Congressional notification requirements prior to initiation. Given this divergence, it is crucial that Congress clearly define and prohibit any type of abouts collection.

The abuses in the documents also underscore the need to further strengthen the role of court-appointed amicus, enhance transparency, and ensure prompt declassification of novel and significant FISC opinions. It should not have taken a full year to declassify the October 2018 opinion, which covers numerous significant issues.

The reforms referenced above are necessary additions to, not substitutes for, those that our organizations and others have already highlighted regarding Section 215 and other FISA authorities scheduled to sunset on December 15. However, the FBIs inability to comply with the law compels further Congressional action.

Sincerely,

Access NowAdvocacy for Principled Action in GovernmentAmerican Civil Liberties UnionAmerican-Arab Anti-Discrimination CommitteeAmericans for ProsperityAntiwar.comArab American InstituteBrennan Center for Justice at NYU School of LawCampaign for LibertyCenter for Democracy & TechnologyColor of ChangeConstitutional AllianceDefending Rights & DissentDemand ProgressDue Process InstituteThe Electronic Privacy Information Center (EPIC)Fight for the FutureFree Press ActionFreedom of the Press FoundationFreedomWorksGet FISA RightGovernment Accountability ProjectGovernment Information WatchHuman Rights WatchIndivisibleMedia AllianceMillion Hoodies Movement for JusticeNAACPNational Association of Criminal Defense LawyersNational Coalition Against CensorshipNew America's Open Technology InstituteOakland PrivacyOCA - Asian Pacific American AdvocatesOpen the GovernmentPeople For the American WayThe Project On Government OversightRestore The FourthRootsAction.orgSouth Asian Americans Leading Together (SAALT)TechFreedomWikimedia Foundation, Inc.X-Lab

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President Trump Is Violating More Than The Emoluments Clause With His Doral Summit – Above the Law

Posted: at 10:18 pm

Trump Doral (Photo by Joe Raedle/Getty Images)

Yes, Donald Trumps decision to award himself the G-7 Summit at his Doral Resort is a violation of the Foreign Emoluments Clause of the Constitution. And its probably a violation of the Domestic Emoluments Clause. In fact, its probably the most obvious violation of those clauses in American history. Its self-dealing; its corrupt; its an impeachable offense on its own. The House Judiciary Committee is going to investigate the self-dealing, because they pretty much have to.

Trump has, of course, violated the Emoluments Clause before. Hes actually facing two lawsuits about that. In fact, the Fourth Circuit just agreed to hold an en banc rehearing of one of the emoluments lawsuit.

Emoluments Clause is probably enough law for the political press to handle for one scandal. But, just among us chickens, can we also talk about how the Trump administration is potentially violating laws regarding the assignment of government contracts? Like, ALL of the them?

This isnt Nam, there are rules. Hosting the G-7 is, at base, the awarding of a government contract. We have multiple, overlapping statutes regarding that process. There are procedures. There are forms. Those forms require signatures. Getting a government contract is a big part of our economy. Since our economy is based on competition, as opposed to central planning, its simply NOT A THING for the President of the United States to just pick winners of that economy, before we even get to the part where picking himself the winner is a violation of the Constitution.

Im no expert on the laws regarding government contracts, because government compliance lawyer has never been my calling. But, unlike anybody at the White House apparently, I can Google. Heres the header from the Legal Information Institute which is just Wikipedia for people who dont want to pay Westlaw:

The United States Government is the single largest procurer of goods and services in the world, and the Department of Defense (DOD) accounts for the lions share of federal acquisitions. Three major characteristics distinguish Government acquisitions from private sector contracts. First, Government contracts are subject to myriad statutes, regulations, and policies which encourage competition to the maximum extent practicable, ensure proper spending of taxpayer money, and advance socioeconomic goals. Second, Government contracts contain mandatory clauses which afford the Government special contractual rights, including the right to unilaterally change contract terms and conditions or terminate the contract. The most important clauses are the Changes clause, the Termination for Convenience clause, and the Default clause. Third, due to the Governments special status as a sovereign entity, claims and litigation follow the unique procedures of the Contract Disputes Act.

Government contracts are subject to several statutes, including the Competition in Contracting Act and the Federal Acquisition Streamlining Act. In addition to statutes, there are a multitude of regulations which govern acquisitions by executive branch agencies. Foremost among these is the Federal Acquisition Regulation (FAR), which is codified in Parts 1 through 53 of Title 48, Chapter 1 of the Code of Federal Regulations. Executive branch agencies may issue their own regulatory supplements to the FAR, such as the Defense Federal Acquisition Regulation Supplement (DFARS). The FAR is amended pursuant to the Administrative Procedure Act, with proposed changes issued jointly by the DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), in coordination with the FAR Council.

The Federal Acquisition Regulation (FAR) is a dense section of law, codified in Title 48 of the U.S. Code. The prohibition against self-dealing in this space is not one of those ephemeral norms that Trump disregards all the time. The self-dealing prohibition is codified right in the statute:

48 CFR 3.601 Policy.

(a) Except as specified in 3.602, a contracting officer shall not knowingly award a contract to a Government employee or to a business concern or other organization owned or substantially owned or controlled by one or more Government employees. This policy is intended to avoid any conflict of interest that might arise between the employees interests and their Government duties, and to avoid the appearance of favoritism or preferential treatment by the Government toward its employees.

(b) For purposes of this subpart, special Government employees (as defined in 18 U.S.C. 202) performing services as experts, advisors, or consultants, or as members of advisory committees, are not considered Government employees unless

(1) The contract arises directly out of the individuals activity as a special Government employee;

(2) In the individuals capacity as a special Government employee, the individual is in a position to influence the award of the contract; or

(3) Another conflict of interest is determined to exist.

Again, the law is complicated and full of exceptions and Im no compliance wonk. But the point is that this law EXISTS. So do others. The Trump administration needs to show that it complied with the law, or show that it doesnt need to comply with the law because it is eligible for some sort of exception. ALL OF THAT MUST BE WRITTEN DOWN. If those arguments dont hold water, Trump is in violation of statute. If those arguments are lies, on official government documents, those lies are crimes.

Making the Emoluments Clause argument against the president for this deal is valid, but its a little bit like pursuing a Fourth Amendment violation against the president for a car-jacking. Sure, it probably is. But, also, THERE ARE LAWS AGAINST CAR-JACKING.

President Trump and his administration, including his administrations lawyers, act like our laws are mere guidelines that dont apply to a strong president. Thats just not true. Awarding yourself a government contract is, at least, a facial violation of law. Does Trump have a defense? Mick Mulvaney suggests that he just wont show us the governments defense to these CHARGES which is also not an acceptable answer.

Trump, obviously, isnt allowed to do this. WHO IS GOING TO TELL HIM?

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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President Trump Is Violating More Than The Emoluments Clause With His Doral Summit - Above the Law

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