Category Archives: Fourth Amendment

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Scott Skinner-Thompson, University of Colorado Boulder

(THE CONVERSATION) Almost all American adults including parents, medical patients and people who are sexually active regularly exercise their right to privacy, even if they dont know it.

Privacy is not specifically mentioned in the U.S. Constitution. But for half a century until its June 24, 2022, ruling in Dobbs v. Jackson the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my research on constitutional privacy rights, this implied right to privacy is the source of many of the nations most cherished, contentious and commonly used rights including the right to have an abortion.

A key component of liberty

The Supreme Court first formally identified what is called decisional privacy the right to independently control the most personal aspects of our lives and our bodies in 1965, saying it was implied from other explicit constitutional rights.

For instance, the First Amendment rights of speech and assembly allow people to privately decide what theyll say, and with whom theyll associate. The Fourth Amendment limits government intrusion into peoples private property, documents and belongings.

Relying on these explicit provisions, the court concluded in Griswold v. Connecticut that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an abortion, the court held that the right of decisional privacy is based in the Constitutions assurance that people cannot be deprived of life, liberty or property, without due process of law. That phrase, called the due process clause, appears twice in the Constitution in the Fifth and 14th Amendments.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy buttresses the ability to marry regardless of race or gender.

The right to privacy is also key to a persons ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a persons freedom in medical decision-making. For example, in 1990, the court concluded that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist noted in 1977, the concept of privacy can be a coat of many colors, and quite differing kinds of rights to privacy have been recognized in the law.

This includes what is called a right to informational privacy letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist both conservative justices suggested in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. Lower courts have relied on the right of informational privacy to limit the governments ability to disclose someones sexual orientation or HIV status.

All told, though the word isnt in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded such as in a future Supreme Court decision many of the rights its connected with may also be in danger.

This story was updated on June 24, 2022, to reflect the Supreme Courts decision in Dobbs v. Jackson Womens Health.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/privacy-isnt-in-the-constitution-but-its-everywhere-in-constitutional-law-183204.

Licenced as Creative Commons - attribution, no derivatives.

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Privacy isn't in the Constitution but it's everywhere in constitutional law - Journal Inquirer

I was away when news of the SCOTUS leak went viral. I hadnt watched TV for a week and barely signed onto social media, but when I did, I read astute and deeply troubling reactions to the policy document designed to overturn Roe v. Wade, which has been considered established law for 50 years.

The document, drafted by conservative Supreme Court Justice Samuel Alito, was supported by four of his court colleagues, revealing that a majority of the court concurred with ending womens right to abortion. The timing of the leak was significant; it occurred when the court is scheduled to rule on the constitutionality of a Mississippi abortion law which prohibits abortion after 15 weeks of pregnancy.

If the court finds that the Mississippi law stands, it will have sanctioned ending Roe v. Wade, allowing states to make their own laws regarding abortion. Some states have already established draconian laws that include charging women with murder if they miscarry or have an abortion. Some have ruled that physicians who perform abortions can be charged with a felony crime and some have set up vigilante laws that could affect anyone who helps a woman get an abortion.

Essentially, the demise of the constitutional right to abortion up to 24 weeks of pregnancy will end womens right to abortion in more than half the states in this country. The implications are huge, not only for American women but for the future of the country, and they are abundantly clear.

Many analysts and pundits have written cogently and urgently about the legal, physical, economic and emotional consequences for women and others in this country, and for all of us with respect to our civil and human rights. As a womens health educator and advocate, I am all too familiar with those consequences. I have heard womens testimonials, read their memoirs, listened to their stories. I have helped them access abortion care, and as a doula, I have helped them give birth to much wanted babies.

After the Alito document was revealed (and during the last confirmation hearings), I thought about the great legal minds of the past who had served as Supreme Court Justices like Oliver Wendell Holmes Jr., Thurgood Marshall, Ruth Bader Ginsburg, among them. Now, I mourn what has become of that institution, where several judges lied under oath to Congress regarding precedent, and where many are willing to ignore the Constitutions Fourth Amendment right of Americans to be secure in their persons and to not be violated or subjected to unreasonable searches and seizures.

It pains and frightens me that faulty some might say puerile logic superficial, antiquated, cliched justifications, overt sexism and religious ideology are blatantly on display. (It is worth noting that seven of the current justices are Catholic and no Protestants are on the bench.)

Couple that with the less-than-stellar records and legal experience of several justices, the alleged sexual harassment conduct of two justices, the conflict of interest on the part of a justice whose wife actively supported the insurrection, along with the majoritys willing abrogation of civil and human rights, and one can question where liberty and justice for all has gone.

How, I ask myself in these traumatic judgment days, has this largely trusted American institution so quickly deteriorated into depravity? How did its majority come to rely on bumper sticker taglines, social media tropes, and arguments so weak and sloppy that they wouldnt pass muster in a law school? Where has compassionate consideration in difficult matters gone? Why have context, untoward consequences and the reality of peoples lives disappeared?

The fact is, the Supreme Court has become a political organization with its own dark agenda and its reputation will forever be tarnished, all because two men and one woman who should know better, appointed by a far-right, self-serving autocrat, are now seated for life on the highest court in the land, along with several hundred inappropriate federal judges.

The price well all pay for judicial travesties, individually and together, grows ever clearer and more threatening. If Roe v. Wade is overturned, womens lives will be destroyed. Precedent in other matters (gay and interracial marriage, LGBTG rights and more) will no longer be valid and revision of laws that wreak havoc because of ignorance and a taste for punishment, will return.

It is no stretch to say that we will become an even more divided and dangerous nation, two-tiered and binary in ways that we cant yet imagine. Violence is likely to flourish along with racism, antisemitism, sexism and increased marginalization. The elderly, young, disabled and ill will suffer even more profoundly. Murder charges, incarcerations and suicides will become commonplace. Poverty will prevail for those in the 99%, while corporations and billionaires flourish. Family structures will be deeply and sadly impacted. The planet will be at risk sooner than predicted.

This is not solely about womens rights, and it is not hyperbole. Its a harbinger of what is to come because of laws we must live with, who makes and enforces those laws, who adjudicates disputes, what national priorities are established and by whom. It is about the future, which now is in the hands of the Supreme Court a court plunged into decline that endangers us all.

Its a court that is beyond disappointing, a court with extraordinary power to shape our lives, and it grows ever more dangerous.

Elayne Clift lives in Brattleboro.

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Clift: The demise of Fourth Amendment | Perspective | rutlandherald.com - Rutland Herald

SOPHIE BUSHWICK: If Roe v. Wade is overturned, so-called trigger laws already passed in 13 states could ban abortion in large parts of the country. Here's how your smartphone could be used to prosecute you if you do decide to have an abortion in an area where it's criminalized.

First of all, your phone is a major tracker of personal information.

It records a huge volume of data, your browsing information, location data, and payment history, that, taken together, can reveal your most intimate activities, such as how many times you go to the bathroom.

If a basic activity like reproductive healthcare becomes criminalized, experts say courts could then issue a warrant for your device, which would then reveal all of that personal information.

If this all sounds a little too dystopian, that's because it is.

Even with Roe intact, digital footprints have been used against people seeking to terminate pregnancies.

Imagine a situation where a pregnant person is admitted to the hospital for treatment for a miscarriage.

That person's phone could then be placed under surveillance under suspicion of having tried to induce that miscarriage.

Not only that; privacy experts warn that law enforcement could actually sidestep the need for a warrant by going directly to private companies.

So how would that work?

In case you didn't know, data brokers have been collecting your personal information for years, and they sell that data for a fee.

Experts say there is actually precedent for law enforcement using data brokers to sidestep the Fourth Amendment.

By issuing a broad subpoena or buying information in bulk, law enforcement could crack down on a large number of people at once.

For example, they could use geofence or other location data, part of your digital footprint, to find everyone who had visited a clinic.

That information becomes even more revealing when it's combined with health data.

This is yet another reason why you should check the privacy policy of your period tracking app if you use one.

That's because experts warn these apps can actually identify if you're pregnant before you know it yourself.

And yes, government officials in this country have actually charted people's periods to determine if they were pregnant.

And know HIPAA, or the Health Insurance Portability and Accountability Act, is not necessarily going to help you either.

It's important to note that apps have no obligation to keep your data secure and private, and HIPAA does not really apply here.

Basically, your vulnerability and privacy is in the hands of the companies that develop these software apps.

That's why some privacy advocates call for pressuring these companies directly to keep your data private and safe.There are still ways to protect yourself, but relying on the government or the tech industry to do so isn't one of them.

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Roe V. Wade was overturned. Here's how your phone could be used to spy on you. - Scientific American

June 24, 2022

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Of all the absurdities that we accept without question, basing the right to own an AR15 on the Second Amendment is the most brazenly far-fetched.

The man who gunned down those nineteen children and two educators at Robb Elementary School in Uvalde, Texas on May 24 of this year was not acting in concert with a well-regulated militia. He was acting as a madman inspired by an evil impulse to slaughter innocent children. And the police who answered the call waited outside for an hour, afraid to go in unwilling to risk their lives to an insane man armed with a modern killing machine.

We need to ask ourselves some common sense questions:

Heres a practical analogy regarding changing times:

In the early days of our nation, people traveled overland by horse-drawn carriages. There was no regulatory entity issuing licenses. The roads were not too crowded and drivers generally managed to avoid accidents. With the invention and refinement of the automobile, the roads became more congested and dangerous. Rules of the road were codified and drivers were required to apply for licensure based on knowledge and competence.

Similarly pragmatic reasoning must be applied to guns. The front-loading musket of Revolutionary War days is not equivalent to an AR15. It is not a gun in the Fourth Amendment sense of the word. No such mass-murder machine was even dreamed of in the days of our forefathers. And the murderer of the Uvalde children was not a member of a well-regulated militia. He was a madman with an AR15.

I am not recommending more stringent licensing for AR15s. We as citizens do not need these weapons. Their proliferation is neither dictated nor endorsed by the Second Amendment. The only real beneficiaries of their continued public sale are members of the gun industry.

When will the next mass shooting be? And why must it be? We can end this.

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Uvalde and the Second Amendment - Daily Kos

The U.S. Supreme Court overturned Friday the half a century old Roe V. Wade precedent, revoking womens constitutional right to abortion. The ruling came a day after the nations highest court struck down a century old New York state law requiring residents to have proper cause to carry a handgun. These landmark rulings will have far reaching consequences nationwide.

Just ahead of the court reversing its 1973 abortion ruling, Gallup released a poll about the American confidence in the Supreme Court. According to the recent poll, Americans confidence in the court has dropped sharply over the past year, reaching a new low of 25% (combined great and quite a lot of confidence), down from 36% a year ago. The 11 points decline comes as Americans remain opposed to overturning Roe v. Wade by a 2-to-1 margin, according to Gallup.

To determine American trust in the Supreme Court the year you were born, 24/7 Wall St. reviewed Gallups Confidence in U.S. Supreme Court Sinks to Historic Low released June 23. Gallup conducted telephone interviews between June 1-20, 2022, with 1,015 adults ages 18+, living in all 50 states and the District of Columbia. Gallup notes that based on this sample, the margin of sampling error is 4 percentage points at the 95% confidence level.

The highest court comprises eight associate justices and one chief justice, all of whom serve lifetime appointments, according to the Constitution. When it was drafted, the aim was to shield the judiciary from political pressures as with a lifetime appointment, judges cannot be fired. In 211 years, though, there have been just 17 chief justices and a total of 112 Supreme Court justices, and judges today serve an average of 28 years, longer than at any time.

This has created a Supreme Court often criticized for being highly polarized along partisan lines, with one president able to influence the court for decades.

Over the years, the Supreme Court has enjoyed the most confidence from Americans during the mid- to late-1980s, the time of the Reagan administration. Several landmark decisions from the time include cases of discrimination based on race, sex, and gender, Fourth Amendment rights, First Amendment rights, Federalism, and more.

Two most recent decisions will have immediate consequences. About half the states have laws that could make abortions illegal, and about half of states may now find they have unconstitutional gun laws on their books. (These are the states where abortion will be illegal.)

Going forward, Americans confidence may depend on where the court takes matters from here. Just as Pride Month is coming to a close, Supreme Court Justice Clarence Thomas suggested the court should reconsider rulings about birth control and same-sex marriage in the future. That may be going against decades of established societal trends. (Not the U.S., but this is the No. 1 democracy in the world.)

Click here to see American trust in the Supreme Court the year you were born

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Trust in the Supreme Court the Year You Were Born - 24/7 Wall St.

The charges have been dropped against the Suring school district administrator who had students stripped to their underwear in a January search.

Suring School administrator Kelly Casper confined six students to a restroom off the school nurses office to be searched on Jan. 18. The district attorney initially didnt file charges because he said the search did not meet Wisconsins legal definition of a strip search, but later charged Casper with six counts of false imprisonment.

A judge dismissed the charges against Casper on Tuesday, saying there were insufficient facts to support the claim that Casper had falsely imprisoned the six girls. Casper was placed on paid administrative leave in March.

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Casper kept the six girls, then ages 14 to 17, in a restroom off the school nurses office and had them strip to their underwear to be checked for vaping cartridges. The search turned up two cartridges, and another girl admitted to having a vape on her, according to the Green Bay Press Gazette.

The families of several girls hired civil rights attorney Jeff Scott Olson earlier this year. He told Wisconsin Public Radio in March that, regardless of the outcome of the now-dismissed criminal charges, he planned to move ahead with a civil suit over what he says is a violation of the girls Fourth Amendment right against unlawful search and seizure.

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Charges dismissed against Suring administrator for search where students had to remove clothes - Wisconsin Public Radio

Some Americans may have to pay a pretty penny to have their constitutional right to bear arms restored after a group of bipartisan senators introduced gun control legislation that does not include a government-provided lawyer, should a state enforce red flag laws.

The legislation, which the Senate voted to advance Tuesday night, reads in part the right to be represented by counsel at no expense to the government.

In simpler terms, individuals who have their firearm confiscated by officials under these red flag laws may have a lawyer, so long as they can afford to pay for it themselves.

The requirement for a red flag law to receive funding includes a provision requiring legal representation for the accused but does not require the government to pay for it, firearms expert and founder at The Reload Stephen Gutowski told the Daily Caller. (RELATED: Republicans, Independents Fear Red Flag Laws Will Be Abused By Government, Poll)

The government only provides a lawyer in criminal cases but not civil cases, explained Sen. John Cornyns press secretary Natalie Yezbick. The language was explicitly included asstates do not guarantee the right to an attorney in civil cases, Yezbick told the Daily Caller.

Drew Brandewie, director of communications for Cornyn, told the Daily Caller that including the aforementioned language is a way to ensure there is rigorous due process as not all states currently give individuals the right to a lawyer in civil cases.

Benjamin Hyun Sanderson of Gun Owners of America said the provision would bankrupt gun owners in a statement to the Daily Caller.

Because these cases would be tried under a Civil Court, there is no right to counsel as found in criminal procedures. This would ensure that gun owners would be forced to hire a lawyer during a Red Flag Law Gun Confiscation Trial, Sanderson said. This is an ultimatum forcing gun owners to either accept a guilty verdict and lose their 2nd Amendment Rights or go bankrupt from all the legal fees.

The inherent lack of due process should be appalling to all Americans.

Individuals would not be forced under the legislation to hire an attorney, but the option would now be available.

The Senate voted 64-34 Tuesday to start debate on a bipartisan gun control package that includes $750 million to help states implement, in part, extreme risk protection order programs, also known as red flag laws. These laws allow a court to confiscate a firearm from an individual who is believed to pose a violent threat.

The laws have faced stark criticism with some, including Daily Caller co-founder and Fox News host Tucker Carlson calling them unconstitutional.

If you can seize peoples guns without proving that they committed a crime why cant you imprison them without proving that they committed a crime? If you can take their guns, why cant you take their homes? Why cant you empty their bank accounts? Carlson asked.

He then citedthe Supreme Court case of Canglia v. Strom, in which the court ruled seizing a citizens gun violates search and seizure rights protected under the Fourth Amendment. Carlson said the laws will be enforced through political lines and disproportionately affect those with the wrong political beliefs.

Republican Florida Rep. Matt Gaetz said, Republican Senators who voted to back Red Flag Laws are traitors to the Constitution and our country.

The House Freedom Caucus said they oppose any legislation that implements red flag laws and other unconstitutional gun control provisions.

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The Gun Control Legislation Will Strip You Of Rights Then Bankrupt You To Get Them Back - Daily Caller

[co-author: Durva Trivedi]*

Last week, the First Circuit issued a decision that could be destined for Supreme Court review, but that nonetheless will immediately impact the course of criminal defendants' Fourth Amendment rights, particularly concerning government video camera surveillance. The split en banc decision centers on whether recordings obtained from a remotely controlled digital video camera mounted on a utility pole across from a private residence that was continuously recording the area immediately in front of that home should be suppressed, and whether the camera's installation was a "search" requiring a warrant. The panel of six judges unanimously agreed that evidence obtained from the camera should not be suppressed and was therefore admissible even though the camera was installed without a warrant. But they were divided three to three in two concurring opinions on whether a warrant should have been obtained to install the surveillance camera in the first instance, and whether prior First Circuit jurisprudence permitting warrantless video camera surveillance should be overruled.

Both opinions relied on the Supreme Court's 2018 Carpenter decision, but the first, 100-page opinion found the eight-month "intensive, long-term surveillance that could expose to a member of the observing public the whole of what visibly transpires in the front of one's home over many months in any practically likely scenario" constituted a search requiring a warrant under the Fourth Amendment. However, the concurrence also concluded that the government was entitled to rely on the "good faith" exception allowing evidence obtained in a warrantless search to be admissible because the existing precedent at the time of the camera's installation disclaimed the need for a warrant.

The second, 30-page opinion found that the surveillance did not constitute a search, and therefore concluded that the government was not required to seek a warrant prior to installing the camera such that the video evidence was admissible as to the defendants surveilled. The second opinion also relied on Carpenter, but cited Carpenter's endorsement of the warrantless use of "conventional surveillance techniques and tools, such as security cameras," and that "any purported expectation of privacy in observations of a house unshielded from view on a public street is not in the least like the expectation of privacy" that justified the warrant required by Carpenter for historic cell site location information.

The case centers on a criminal investigation into narcotics trafficking and the unlicensed sale of firearms. In January 2017, the ATF began investigating defendant Moore-Bush and "surreptitiously" installed a digital video camera atop a utility pole near where defendant was living at the time, which recorded the exterior of the home. "ATF agents were able to view a live-stream of what the camera recorded through a password-protected website. The agents also could, remotely, pan, tilt, and zoom the camera to better focus on individuals or objects of interest." The camera had within its view "roughly half of the front structure of the residence, including its side entrance and a gardening plot near that entrance, the whole of the home's private driveway, the front of the home's garage, much of the home's front lawn, and the vast majority of the walkway leading from the home's private driveway up to the home's front door (although not the front door itself)." (references to this area are noted in the opinions as the home's "curtilage").

ATF did not seek a warrant prior to installing the camera, and the camera was ultimately in place and continuously recording for eight months. In January 2018, based in part on evidence from the pole camera, Moore-Bush was indicted and arrested for conspiracy to distribute and possess with intent to distribute heroin and cocaine.

In April 2019, Moore-Bush moved to suppress evidence collected by the pole camera, arguing that the continued surveillance of the house constituted an unreasonable search in violation of the Fourth Amendment. A Massachusetts federal district court granted that motion, finding that a warrantless search occurred, relying on the Supreme Court's Carpenter decision, which held that the government's acquisition of historic cell site location information providing a detailed record of a defendant's physical movements constituted a search under the Fourth Amendment (for further discussion of the Carpenter decision, see here).

The district court's suppression order was appealed and, in 2020, a three-judge panel of the First Circuit reversed, holding that surveillance of the exterior of a house did not constitute a search and consequently that the suppression motion should be denied. Then Circuit Judge Barron concurred, although finding that the installation of the pole camera did require a warrant. The appeal was then reheard en banc on the defendant's motion and while the en banc panel of six judges agreed that the suppression order should be reversed, the Judges disagreed significantly on whether a warrant was required to install the pole-mounted video camera in the first instance.

The first concurring opinion, authored by now Chief Judge Barron and joined by two other judges on the en banc court, concluded that a warrantless search did occur, in violation of the Fourth Amendment. They found that Moore-Bush's legitimate expectation of privacy was violated when ATF agents collected eight months of aggregated information that no casual observer would see collectively. This concurring opinion relied on Carpenter and other recent Supreme Court cases concerning the application of various technologies to Fourth Amendment doctrine.

These decisions, according to the concurrence, support the conclusion that prolonged surveillance by the government that is streamlined and made possible by modern technology ("scooping up visual information about all that occurs in front of a residence over a long period of time") can constitute a search under the Fourth Amendment, even "when each discrete activity in that totality is itself exposed to public view." The Carpenter case, in particular, was relied on by the concurrence to suggest a need to overturn a prior First Circuit decision that held that eight months of video surveillance from a pole-mounted camera did not constitute a search under the Fourth Amendment.

Beyond concluding that eight months of video surveillance constituted a search, the concurrence did not provide guidance on a specific threshold or timeframe for determining when continuing video surveillance of curtilage amounts to a search, but quoting Carpenter noted that the Supreme Court's warning that "as '[s]ubtler and more far-reaching means of invading privacy have become available to the [g]overnment,' courts are ' obligated' . . . 'to ensure that the progress of science' does not erode Fourth Amendment protections." Nonetheless, the concurrence agreed that the original suppression order should be reversed because of the "good faith" exception, allowing evidence obtained by warrantless surveillance is admissible if conducted in accordance with the law in effect at the time.

In the separate concurrence, three circuit judges concluded that the surveillance, regardless of whether it was "surreptitious," did not constitute a search, that "the Fourth Amendment does not guarantee that suspects have fair notice that an investigation is ongoing," and that Carpenter endorsed warrantless use of security cameras. Additionally, the separate concurrence argued that it should be left to the Supreme Court to decide whether and to what extent legitimate expectations of privacy are violated by government surveillance that uses modern technology to aggregate and capture what is plainly in the public view but only observable over a length of time with technology like remotely accessed and controlled digital video pole cameras.

Looking forward, it has been reported that the defendant in the case has again sought rehearing, based on her argument that the video evidence should nonetheless be suppressed because the government waived the "good faith" exception. However, this point had been argued in the prior briefing and the three judges who thought there should have been a warrant did not "consider the 'good faith' issue to have been waived," so that rehearing would appear unlikely on that point.

The en banc opinions demonstrate significant discord among federal judges on the application of the Fourth Amendment to lengthy remote surveillance enabled by modern technology. It is likely that the defendants will seek certiorari, as the second concurrence concludes that, "if new constitutional durational limits are to be set on the use of long-used, widely-available technology that detects only what is plainly in the public view, it is for the Supreme Court to set those limits."

Judges Lynch, Howard, and Gelp. Former Chief Judge Howard authored the original panel opinion that reversed the suppression order, and here was joined by Judge Lynch from that panel.

* Durva Trivedi, a rising 2nd-year law student at Georgetown University Law Center, is a 2022 Summer Associate at DWT.

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First Circuit Splits on Whether Warrantless Pole-Mounted Video Surveillance Violates Fourth Amendment; District Court Suppression Order Reversed - JD...

In 2015, the death of a 25-year-old Black man, Freddie Gray, while transported in a police van sparked protests in Baltimore.

The protests were deemed The Baltimore Uprising.

Soon after, police enthusiasts noticed strange flight orbits towering over the city of Baltimore. However, what they saw was something completely different.

The city would learn later that the Baltimore Police Department was using powerful cameras that could capture detailed imagery of the city below it. It was part of an evolution of the citys CitiWatch program, initially announced in 2005.

Before Gray, the residents bought into the program, as Baltimore was the seventh most violent city in 2003 before the program came about. After Gray, residents worried about violations of their right to privacy, as the strange flight orbit extension to the program was unknown to residents before its implementation.

Responding to the conundrum between privacy and protection, lawyers at the Policing Project, a non-profit center at New York University School of Law began a project to explore a soft law alternative: a certification system for policing technologies. The project considers the unchecked technologies concerning. Instead, they propose making policing more transparent, equitable and democratically accountable.

The certification schemes the lawyers call for would require policing technologies to meet a particular standard before usage.

A certification scheme could perform a review of a technologys efficacy and an ethical evaluation of its impact on civil rights, civil liberties and racial justice, the lawyers wrote in a study for the Berkley Technology Law Journal.

The report says that Baltimores CitiWatch programs could perhaps achieve approval as a traditional CCTV device but not as an aerial surveillance system, meaning the certification program could impact how the police use the products.

The writers say the program would have to work independently, acknowledging how some certification programs do not work democratically.

They argue for set rules which currently do not exist and say because of the lack of regulation the technology has become innovative in its intrusiveness over the rights of citizens.

For example, a 2016 landmark report on law enforcements use of facial recognition technology estimated that one in four agencies have access to this tool, with over 117 million American adults already in face recognition databases.

Additionally, in 2012, 71 percent of police departments were using automated license plate readers, resulting in scans of hundreds of millions of license plates. A 2020 California state auditor report revealed that the Los Angeles Police Department had stored more than 320 million license plate scans 99.9 percent of which were stored despitenotgenerating a hot list match.

Automated license plate readers and facial recognition technologies have disproportionately targeted minority communities, and people of color, which they argue can sometimes infringe upon the right to privacy.

The Fourth Amendment implemented by judges is the primary constitutional restraint on police power, but under existing doctrine, remarkably few of the emerging police technologies fall within its ambit, they write.

However, some protections are offered against the technologies currently in law. Such as the Privacy Act of 1974 and the E-Government Act of 2002, but some scholars say it does not regulate policing enough.

The writers of the study suggest community and police buy into the certification process and argue with proper compliance and regulation, the technologies can benefit the police without infringing upon the rights of citizens.

They argue the programs will not make the hard choices. Instead, they will give the communities and policymakers room to make the decisions themselves.

The hope is that certification might, rather than displacing community choice, facilitate it, while proving a trusted informational voice in decision making, they write.

The authors of the report were Barry Friedman, New York University School of Law; Farhang Heydari, Policing Project, NYU School of Law; Max Isaacs, New York University School of Law; and Katie Kinsey, NYU Law.

The study can be downloaded here.

James Van Bramer is Associate Editor of The Crime Report.

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Privacy or Protection? Does Policing Technology Need Regulation? - Crime Report

When Supreme Court Justices Neil Gorsuch and Samuel Alito stand on opposite sides of a criminal justice case, it is safe to assume that criminal justice reform advocates will be cheering for Gorsuch. That maxim certainly held true today in the Court's 72 decision in United States v. Taylor.

At issue was whether a conviction for attempted robbery under one federal law, the Hobbs Act, also qualifies as a "crime of violence" under another federal statute, 18 U.S.C. 924(c)(3)(A). This matters because the additional "crime of violence" designation carries with it a second felony conviction and extra years in prison. Writing for the majority, Justice Gorsuch held that the "crime of violence" designation did not apply.

To qualify as a "crime of violence" under the federal law at issue, the offense must have, according to the statute, "as an element the use, attempted use, or threatened use of physical force against the person or property of another." Justin Taylor was charged with attempted robbery under the Hobbs Act. To secure that conviction, Gorsuch explained in his opinion, "the government must show an intention to take property by force or threat, along with a substantial step toward achieving that object. An intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property." In other words, while an attempted robbery occurred under the Hobbs Act, "no crime of violence" occurred under the terms of 18 U.S.C. 924(c)(3)(A).

Justices Clarence Thomas and Samuel Alito each dissented from Gorsuch's opinion. Thomas blasted Gorsuch for a soft-on-crime judgment that distorted federal law, is "divorced from reality," and which "threatens public safety." Alito was not exactly complimentary either. "I agree with Justice Thomas that our cases involving 924(c)(3)(A) have veered off into fantasy land," he wrote. Gorsuch's "strict reading of the text," according to Alito, led to an absurd result.

In 2020 I wrote about the growing trend of criminal justice cases dividing the "conservative" judiciary. One of my examples involved Gorsuch and Alito clashing over the meaning of the Fourth Amendment, with Gorsuch advancing an interpretation that would cause the government to lose many more cases than it currently does while Alito countered with a far more deferential stance in favor of prosecutors and police.

Today's dispute over statutory interpretation in a criminal sentencing case represents yet another active front in this ongoing and crucially important judicial battle.

More here:
Gorsuch and Alito Butt Heads in Another Criminal Justice Case - Reason