Category Archives: Fourth Amendment

From Harrington v. UPMC, decided Friday by Judge W. Scott Hardy (W.D. Pa.):

Plaintiffs Cherell Harrington and Deserae Cook filed a Complaint in Civil Action in the Court of Common Pleas of Allegheny County, Pennsylvania, on behalf of themselves and two putative classes, alleging various claims against the University of Pittsburgh Medical Center ("UPMC") and Allegheny County via its Office of Children, Youth and Families ("AC-CYF") arising out of UPMC's purported disclosure of their confidential medical information to AC-CYF for the purpose of targeting them with highly intrusive, humiliating and coercive child abuse investigations starting before taking their newborn babies home from UPMC's hospitals shortly after childbirth.

At this stage of the case, the factual allegations set forth in the Amended Complaint must be taken as true and viewed in the light most favorable to Plaintiffs. These allegations are recounted as follows.

Harrington is the mother of three children and until the birth of her third child had never been accused of abusing or mistreating her children in any way. She was admitted to UPMC's Magee Women's Hospital on November 29, 2017, and gave birth to her third child, a son, who was born healthy via caesarean section the same day.

Upon her admission to the hospital, Magee employees collected Harrington's urine and tested it for drugs without her knowledge, consent, or any medical reason. The urine sample taken from Harrington came back "unconfirmed positive" for marijuana, further stating, in part, that "[t]he results are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g., employment testing, legal testing)," and "the testsare not definitive. Until definitive testing confirms any result, the result should be regarded as provisional and uncertain." Magee personnel likewise administered a drug test to Harrington's newborn son without Harrington's knowledge or consent. The newborn's test results were negative for all illicit drugs.

The next day, as Harrington was recovering from surgery and caring for her newborn son, a UPMC social worker entered her room and informed her that she had tested positive for marijuana and that her son had tested negative, but that her positive test result would be reported to AC-CYF. Harrington told the social worker there was no reason to report the result because it was false and her newborn's test result was negative, yet the social worker told her she was required to report the result to AC-CYF. The social worker had no reason to suspect or believe Harrington's newborn had been affected by illegal substance abuse or was having withdrawal symptoms resulting from prenatal drug exposure. That same day, without Harrington's consent, and without medical necessity, reason, or justification, UPMC reported her confidential unconfirmed positive drug test result to AC-CYF while also reporting that her newborn had tested negative and was "in good health." Then, later that evening, a nurse attending to Harrington told her that because she tested positive, she should not breastfeed her son and that UPMC would not support or assist her in doing so.

On December 1, 2017, less than three days after giving birth to her son, an AC-CYF case worker entered Harrington's private hospital room to inform her that AC-CYF was investigating her for child abuse based upon a report received from UPMC. Despite Harrington's objection to the investigation because her positive test result was "unconfirmed," the case worker told her that AC-CYF opens an investigation whenever it receives a report from UPMC that a new mother tested positive for drugs. Then, while still in Harrington's private hospital room, the AC-CYF case worker photographed Harrington's healthy newborn baby and required Harrington to sign various AC-CYF forms and documents; the case worker also told her that AC-CYF would be subjecting her private residence to a home inspection upon discharge from the hospital.

On December 4, 2017, merely two days after Harrington was discharged from the hospital, the same AC-CYF case worker arrived at her home, toured her house, inspected her refrigerator and cupboards, and took photographs of her children. The case worker required Harrington and her husband to answer detailed personal questions about their education, employment, family and medical histories, and he asked their then-eleven-year-old daughter about Harrington's "use of addictive substances."

The case worker also told Harrington that because of UPMC's report to AC-CYF, AC-CYF would be requiring her to participate in a drug counseling session with a representative of Pennsylvania Organization for Women in Early Recovery ("POWER") and submit to another drug test administered by it. When Harrington objected to participating in this process, the case worker told her that if she did not complete POWER's assessment, he would report her "failure to cooperate" to a judge and require her to travel to downtown Pittsburgh for monthly drug tests. Fearful of losing custody of her children, Harrington submitted to the POWER assessment under duress. The case worker noted on an AC-CYF form that Harrington "cannot or will not control [her] behavior" and that her "protective capacity" for her children was "diminished" due, exclusively, to the unconfirmed positive drug test result reported by UPMC.

During this home inspection, the case worker also required Harrington to sign numerous papers, including releases permitting AC-CYF to contact and obtain confidential information from her 11-year-old daughter's pediatrician, dentist, and school. The case worker would not give Harrington copies of these documents. Again, fearful of losing custody of her children, Harrington signed these documents.

On December 27, 2017, a POWER representative arrived at Harrington's home two hours earlier than scheduled. Upon arrival, the representative asked Harrington a series of questions about her personal life, including whether she had a history of illegal drug use. The representative also administered another urine drug test with a negative result. Harrington believes this POWER representative submitted a report to AC-CYF which included Harrington's answers to the representative's questions. Then, on December 29, 2017, a representative from POWER informed the AC-CYF case worker that Harrington was "not recommended for treatment."

Notwithstanding POWER's recommendation, in early January 2018, the AC-CYF case worker persisted with his investigation by contacting Harrington's daughter's school and interviewing the school's social worker, by contacting Harrington's pediatrician and obtaining medical information about all three of her children, and by contacting Harrington's dentist and obtaining her daughter's dental information. Then, on January 8, 2018, the case worker returned to tour Harrington's home a second time and inspected her bedrooms and the contents of her refrigerator and kitchen cabinets. The case worker also interviewed Harrington's daughter. Before leaving Harrington's home, the case worker informed Harrington that he would speak with his supervisor regarding the status of the investigation. Harrington received no further communications from the case worker or anyone else at AC-CYF.

Cook is the mother of two children, a 5-year-old boy and a 1-year-old girl. She was admitted to UPMC's Mercy Hospital ("Mercy") on July 7, 2018 and gave birth to her healthy daughter that same day. As part of the hospital admission intake process, a Mercy employee asked Cook whether she had ever used illegal drugs, to which Cook responded that she had smoked marijuana in the past but "quit everything" when she found out she was pregnant. Thereafter, Mercy employees collected Cook's urine and tested it for drugs without her knowledge, consent, or medical reason. Mercy personnel likewise administered a drug test to Cook's newborn daughter without Cook's knowledge or consent. Both Cook's and her newborn daughter's drug test results were negative.

The next day, a UPMC employee entered Cook's hospital room and informed Cook and the newborn's father that although she tested negative for drugs, UPMC was "required" to report her to AC-CYF because of her answers to the intake questions. Before that date, UPMC never informed Cook that her answers to the patient intake questions would be used as the basis to report confidential information to AC-CYF. Then, the following day, July 9, 2018, without Cook's consent, a Mercy employee contacted AC-CYF and reported, in part, that Cook's and her newborn daughter's drug test results were negative, but that Cook "admitted to using marijuana in the beginning of her pregnancy but stopped when she found out she was pregnant. No current concerns[.]" Cook was discharged from the hospital that same day.

After being discharged, an AC-CYF caseworker left a note on Cook's door stating that she needed to contact the caseworker to schedule a home inspection. Fearing the loss of custody of her children, Cook contacted the caseworker and scheduled a home inspection as instructed. Then, on July 24, 2018, an AC-CYF case worker arrived at Cook's home and completed a "walk through", during which she inspected her children's bedrooms, the amount of food in the kitchen and the amount of children's clothing and toys. The caseworker also interrogated Cook and the children's father about their education, employment, family and medical histories, and provided unsolicited parenting advice and provided them with a "parent handbook." The AC-CYF case worker also required Cook to sign a release for both of her children's medical records.

The next day, on July 25, 2018, the AC-CYF case worker completed a "Pennsylvania Model Risk Assessment Form" in which she concluded that there was "no risk" to Cook's children. Despite this "finding," Cook received numerous phone calls from social service agencies offering unnecessary services for her and her children. Then, on August 23, 2018, the AC-CYF case worker signed a letter informing Cook that her family was not accepted for services by AC-CYF, and that neither further intervention nor ongoing services were needed. The next day, and despite having concluded that no further intervention or services were needed, the AC-CYF case worker returned to Cook's home and conducted another home inspection and interrogated Cook about her children's medical histories, medical insurance, and recent doctor's visits. Then, a few days later, on August 27, 2018, the AC-CYF case worker sought and obtained confidential medical information regarding both of her children from their pediatrician despite having previously concluded that no further intervention or services were needed.

The court allowed the plaintiffs' lawsuit to go forward. It concluded that plaintiffs adequate alleged that UPMC was a state actor because of its connection with AC-CYF:

Plaintiffs' allegations go beyond merely averring that UPMC reported crimes it observed or that it made statutorily mandated reports of child abuse. Plaintiffs assert factual allegations that UPMC routinely took affirmative steps in accord with its own policies, customs, and practices, and in violation of its own legal and ethical duties, to obtain confidential medical information from its patients and to convey that private information to AC-CYF without its patients' consent as part of a practice, policy or agreement with AC-CYF and knowing that AC-CYF routinely accepted and acted upon UPMC's disclosures to conduct unwarranted, intrusive, coercive, and unconstitutional child abuse investigations, including the possible removal of the mother's newborn child from her custody. And, while UPMC contends that Plaintiffs' averments of an agreement between UPMC and AC-CYF were merely bald assertions that lack any factual backing, in this Court's estimation those allegations do allege a plausible agreement, conspiracy, or coordinated plan between UPMC and AC-CYF, particularly because those allegations permit reasonably drawn inferences that AC-CYF routinely defers to and relies upon UPMC's judgment as to whether, and to what extent, it will conduct child abuse investigations of UPMC's maternity patients even when the CPSL may not mandate UPMC to make such child abuse reports. Likewise, Plaintiffs' factual allegations also permit a reasonably drawn inference that UPMC intentionally facilitated AC-CYF's intrusions, not only into the patients' private medical information, but also into their private hospital rooms which UPMC undoubtedly governs and in which Plaintiffs allege the patients and their newborn children are captively and coercively interrogated and photographed.

The court concluded that the plaintiffs adequately alleged a violation of their familial integrity rights:

The United States Supreme Court has explained that it is "a cardinal principal 'that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" While familial integrity is a liberty interest entitled to constitutional protection, such protection is not absolute. Rather, it is "limited by the compelling governmental interest in the protection of childrenparticularly where the children need to be protected from their own parents" and does not include a right to remain free from child abuse investigations. [But t]he State "has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse."

Plaintiffs' allegations plausibly cast doubt on whether AC-CYF and UPMC, as a joint actor with AC-CYF, possessed the requisite objectively reasonable suspicion of abuse to justify both the initiation and degree of governmental interference with Plaintiffs' familial relationships. As pled by Plaintiffs, Defendants merely possessed information that Cook ceased using marijuana several months beforehand when she found out she was pregnant, that she tested negative for drugs with "no current concerns" upon admission to the hospital for childbirth, and that her newborn also tested negative for drugs immediately after birth. Similarly, as pled in the Amended Complaint, Defendants merely possessed Harrington's "unconfirmed positive" drug test result that included the express qualifiers that such result is 'to be used only for medical purposes" (and not for non-medical purposes such as employment testing and legal testing) and that the test administered "may react with compounds other than the drugs indicated, and therefore are not definitive." Yet, with nothing more, Defendants seemingly disregarded the presumption articulated by the Supreme Court in Troxel v. Granville (2000), that a "fit parent will act in the best interest of his or her child" and instead intruded into and interfered with Plaintiffs' constitutionally protected liberty interests in their familial integrity.

Defendants contend that Plaintiffs' rights to the custody, care, and management of their children were not infringed upon merely by being subjected to child abuse investigations. However, while the fundamental right to familial integrity does not include a right to remain free from child abuse investigations in and of themselves, such investigations do not escape constitutional scrutiny when initiated, expanded, or continued in the absence of reasonable grounds and thus become arbitrary abuses of power. Here, Plaintiffs allege that the putatively unwarranted and unjustified child abuse investigations began when UPMC personnel administered drug tests on Plaintiffs and their newborns without their knowledge or consent, and were subsequently exacerbated by governmental intrusions into their hospital rooms and homes under coercive circumstances that created a belief that they would lose child custody, all without any objectively reasonable suspicion of abuse or despite any errant suspicion being dispelled.

Plaintiffs also allege intrusions beyond being subject to child abuse investigations. They allege that they were coerced into signing various AC-CYF forms and documents, including releases permitting AC-CYF to obtain confidential information from their young children's pediatricians, dentists, and schools. Plaintiffs also allege that AC-CYF insisted upon additional drug testing and/or drug counseling and imposed unneeded and unwanted parental advice and instruction. Plaintiffs also allege that at least one such investigation involving Cook triggered numerous phone calls from social services agencies offering unnecessary services. Indeed, these averments plausibly contend that the investigations were unjustified ab initio, expanded and persisted without any legitimate predicate and despite objective evidence of non-abuse, and transgressed beyond investigative fact gathering.

The court held that plaintiffs plausibly alleged violations of their constitutional right to privacy in medical information:

There exists a constitutionally protected privacy interest in "'avoiding disclosure of personal matters'" such as medical records "which may contain intimate facts of a personal nature."

Here, Plaintiffs essentially allege that UPMC secretly obtained their and their newborns' personal, intimate medical information and then divulged that information to AC-CYF for the purpose of pursuing unwarranted child abuse investigations and other impositions on their familial relationships. Plaintiffs also allege that the medical information at issue is very specific and personally identifiable. Plaintiffs further allege that this highly personal information was obtained in contravention of their reasonable privacy expectations inherent in their trusted physician-patient relationships, and, even then, it was taken and then divulged to the government and other third parties without their knowledge or consent.

Under these circumstances, it is reasonable to infer that such purported breaches of trust caused by Defendants' alleged invasions of privacy erode these vitally important relationships between maternity patients such as Plaintiffs and their medical providers. These alleged circumstances must then be weighed against the legitimate and important governmental interest in disclosing and using such private medical information to protect children from abuse. Here, there are express statutory mandates, notably the CPSL and the Health Insurance Portability and Accountability Act ("HIPAA"), that provide the contours for when and to what degree such information may be reported by UPMC and used by AC-CYF. At this preliminary juncture, however, Plaintiffs have pled enough to plausibly tip the balance of these factors towards establishing viable constitutional privacy claims.

The court held that plaintiffs plausibly alleged violations of their Fourth Amendment rights:

At Count Six, Harrington asserts a claim against AC-CYF alleging that it violated the Fourth Amendment by requiring her to submit to drug tests based solely on a hospital report of an unconfirmed positive test for marijuana while pregnant and without any basis to believe that she abused or neglected her children.

AC-CYF argues that Harrington voluntarily consented to drug testing. Accordingly, AC-CYF has the burden to establish that Harrington's consent to be tested was freely and voluntarily given. Harrington avers that her consent was not voluntary because of the purportedly coercive timing, setting, and nature of the AC-CYF case worker's directives that she must submit to subsequent drug tests. Harrington was subjected to this child abuse investigation immediately upon giving birth, while still in the hospital, and while under the belief that her infant newborn would be taken away from her if she refused or otherwise failed to cooperate. Under the totality of the circumstances, these averments plausibly allege that Harrington did not voluntarily consent to such drug tests, and AC-CYF will need to proffer evidence during discovery to satisfy its burden to the contrary.

And the court held that plaintiffs adequately alleged breaches of UPMC's "common law duty to keep all patient communications, diagnoses, and treatment information confidential":

UPMC seeks dismissal of these claims contending that its alleged disclosures to AC-CYF were made in good faith, and it therefore is immune from liability pursuant to the CPSL, citing 23 Pa. C.S. 6318(a)(1). Because good faith is presumed, 23 Pa. C.S. 6318(c), Plaintiffs must allege sufficient facts to plausibly establish that UPMC acted in bad faith.

In this regard, Plaintiffs aver that UPMC administered drug tests without consent and then disclosed the "unconfirmed" results of those tests along with other confidential medical information to AC-CYF, despite knowing these tests were unreliable and likely to lead to false positive results. Plaintiffs also aver that UPMC's testing of Plaintiffs' newborns without their consent nonetheless resulted in negative results, and that UPMC possessed no countervailing information that would lead those involved in the delivery or care of these healthy infants to believe that they were affected by illegal substance abuse of their mothers or that they exhibited withdrawal symptoms resulting from prenatal drug exposure. {In this instance, Cook admitted to hospital personnel that she previously used illegal drugs, but "'quit everything'" when she found out she was pregnant. However, the Pennsylvania Supreme Court has held as a matter of law that a mother's act of ingesting illegal drugs while pregnant does not constitute child abuse.}

In one such alleged instance, UPMC personnel allegedly disclosed Harrington's confidential medical information to AC-CYF despite her newborn's negative drug test result and indications that the infant was "in good health." In another instance, UPMC personnel allegedly disclosed Cook's confidential medical information to AC-CYF even though both her and her newborn's drug tests were negative, and even though UPMC had "no current concerns." Based upon these averments, the Court finds that Plaintiffs sufficiently pled facts to raise a reasonable expectation that discovery will reveal evidence of bad faith to overcome the good faith presumption warranting immunity.

But the court rejected Harrington's compelled speech claim:

Harrington contends that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests, without justification, unless she answered a series of questions about her personal life through mandated participation in the POWER program. Harrington does not appear to be contending that AC-CYF sought to compel involuntary affirmation of objected-to beliefs or to embrace a particular government-favored message. In fact, Harrington's threadbare averments supporting her free speech claim offer no specifics as to what speech, if any, she contends had been coerced. Rather, as pled, Harrington narrowly alleges that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests unless she answered a series of questions about her "personal life." While the Court finds that the Amended Complaint does contain adequate factual averments to plausibly establish the requisite compulsion, the Court also concludes that the Amended Complaint is devoid of allegations as to what POWER's questions entailed, and thus the Court cannot assess whether to apply strict or intermediate scrutiny, much less discern whether those questions pass constitutional muster.

The court also rejected plaintiffs' sex discrimination claims:

In their Amended Complaint, Plaintiffs allege that Harrington's husband was present at the hospital prior to and during childbirth and intended to return home with Harrington and their newborn, but UPMC did not collect or attempt to collect his urine to test it for drugs. Likewise, Plaintiffs allege that the father of Cook's newborn was also present at the hospital during childbirth and similarly intended to return home with Cook and their newborn, yet UPMC never attempted to collect his urine to test it for drugs nor did UPMC asked whether he had ever used illegal drugs.

[But] Plaintiffs were UPMC's labor and delivery patients, while the fathers were not. UPMC obtained Plaintiffs' private medical information, including prior purported drug use, in the context of their physician-patient relationship during labor, delivery, and recovery from childbirth. Plaintiffs have not and presumably cannot allege any corresponding physician-patient relationship between the fathers and UPMC's obstetricians and their labor and delivery service.

Moreover, there is a fundamental biological distinction between a mother and father regarding the substances they consume (both legal and illicit) and the potentially deleterious impact those substances may have on their child's health and wellbeing both in utero and upon birth. The CPSL recognized this reality by imposing specified reporting obligations on hospitals based on mothers' drug use but not fathers' drug use. These inherent differences between mothers and fathers are substantial in the context of prenatal care, labor, delivery, and recovery, and principles of equal protection do not require ignoring this reality.

Furthermore, AC-CYF undertook investigations based upon reports that Plaintiffs, but not the fathers, illegally used drugs. Therefore, based upon the averments contained in the Amended Complaint and reasonable inferences drawn therefrom in Plaintiffs' favor, the Court finds that Plaintiffs have not alleged a cognizable equal protection claim and that they cannot plausibly allege additional facts by amendment to allege Plaintiffs and the fathers were similarly situated to establish such a claim.

Congratulations to Margaret Schuetz Coleman of O'Brien, Coleman & Wright, LLC and to Sara Roset of the ACLU-Pennsylvania on their victory on this motion.

See the article here:
Mothers' Lawsuits Claiming Univ. of Pittsburgh Medical Center Interfered with Parental Rights Can Go Forward - Reason

LAS VEGAS (KLAS) After prosecutors dropped all charges in her in March, a former behavioral therapist has filed a federal civil rights lawsuit against the City of North Las Vegas and a police officer.

Amy Villareal had been accused of sexually assaulting a 15-year-old client who has autism. All charges were dropped on March 16.

Villareal, who worked at Crescent Academy, was arrested in September 2021 and charged on allegations that were vague, inconsistent, uncorroborated, and objectively unbelievable, according to her lawyers, the Law Office of Jordan Marsh.

The lawsuit accuses North Las Vegas police officer Jorge Correa of violating Villareals Fourth Amendment rights. Villareal lost her career and her reputation, and spent months fighting charges that could have put her in prison for the rest of her life, according to a news release distributed by her lawyer.

The lawsuit contends Correa made no attempt to verify the accusations by interviewing other therapists, and no physical evidence or witness corroboration was offered regarding the alleged incidents.

People assume the police wouldnt arrest someone for such a serious offense if they didnt have a solid evidentiary basis to believe they committed the crime, attorney Jordan Marsh said. But thats not always the case, and it certainly wasnt here. And Amy has been paying the price for that since her arrest.

Villareal is seeking a jury trial in U.S. District Court. The lawsuit alleges three federal civil rights violations by Correa:

The lawsuit alleges the City of North Las Vegas is responsible for Correas actions as a city employee.

Villareals lawyers say she incurred $25,000 in legal bills and $15,000 for the bond to release her from jail. She lost her behavioral therapist license and is afraid to return to the same line of work, according to the lawsuit.

See the rest here:
Former therapist files civil rights lawsuit against police officer after losing career amid accusations - KLAS - 8 News Now

Published: 5/19/2022 1:16:34 PM

Modified: 5/19/2022 1:14:49 PM

I agree with Frank Barrett (Recalling early days of the Hopkins Center, May 13) that the Valley News article on the Hopkins Center (Connecting campus to community, May 2) was well done, but both of these writers failed to mention, even in passing, the name and contribution of Warner Bentley. It was almost all about bricks and mortar.

Warner Bentley was the first director of the Hop and spent his entire adult life from 1928 until his retirement in 1969 as a Dartmouth professor and administrator, and yet, there was nothing to acknowledge his contribution to the performing arts at the college.

When Warner Bentley graduated from the Yale Drama School in 1928 (94 years ago), he was encouraged to come to Dartmouth by President Ernest Martin Hopkins, who promised to build a theater and support theater art. He got his theater 34 years later just seven years before his retirement. Warner remained in Norwich almost until his passing in 1987, so he was able to see and enjoy the continuing success of the Hopkins Center.

There is a bust of Warner at the Hop, and students passing by rub his nose for good luck. He was a legend at Dartmouth and he is still with us. There is another story there.

William J. Montgomery

Hanover

Gov. Sununu disappoints on abortion rights

Right now, abortion rights are federally protected in all 50 states, but the recent Supreme Court leak indicates that it is likely to change soon. While abortion would remain legal in New Hampshire before 24 weeks, it will take work to preserve those rights into the future given the states current legislative makeup.

Gov. Sununu might say hes the reason that abortion is, and will remain, legal in New Hampshire. He might say hes a pro-choice governor. He might boast that hes proud to sign a bipartisan bill that expands abortion access in the coming weeks.

But his actions speak louder than words. He is not a pro-choice governor.

In 2018, Sununu put his full support behind Justice Kavanaugh, whose appointment by former President Trump helped seal the fate of Roe.

In 2020, Sununu vetoed the Reproductive Health Parity Act, which would have removed financial barriers for people seeking access to abortion.

And in 2021, Sununu signed New Hampshires first modern abortion ban into law.

This year, bipartisan legislation has been adopted to address some of the harm caused by Sununus abortion ban, and hes trying to take credit now for expanding access to abortion.

If the U.S. Supreme Court overturns Roe v. Wade, well need elected officials that will protect and expand abortion access in New Hampshire. But the bottom line is, Gov. Sununu doesnt trust Granite Staters, and we cant trust him to protect our reproductive rights.

Fiona Greenough

Meriden

Our Declaration of Independence is foundational to what Americans believe and the basis for the U.S. Constitution. It says that all men (meaning human beings) are created equal and have rights that cant be changed: life, liberty and the pursuit of happiness.

It says that government powers come from the consent of the governed the people thats US! The May 12 commentary in the Valley News, Leak casts doubt on issues beyond abortion, mentions constitutional amendments and Supreme Court cases but is incomplete.

The Third Amendment forbids quartering soldiers in homes without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Forcing homeowners to do this was certainly an invasion of privacy.

The Fourth Amendment begins The right of the people to be secure in their persons ... What does this mean? In a 1965 case, the Supreme Court found that a state law outlawing birth control was unconstitutional an invasion of privacy, as people were not secure in their persons from the governments interference.

When did We the People give the government the right to limit abortion?

Limitations on rights are needed when other people or society are affected. In abortion, the woman and perhaps the male are involved. Some argue, as Executive Councilor Joseph Kenney wrote to me, the unborn has a right to be born. Where did this right come from? Some churches may teach that this exists, given by their Creator, but is this fair for everyone? If it is not fair for everyone, then abortion should not be forbidden.

And if the government makes laws based on the teachings of some religions, isnt that violating the First Amendments forbidding a law respecting an establishment of religion?

Howard Shaffer

Enfield

Originally posted here:
Forum, May 18: Warner Bentley's unsung contributions to the Hop - Valley News

Two weeks ago, in United States v. Rosenow, the Ninth Circuit handed down a decision that has a brief but truly stunning passage with major implications for the future of Fourth Amendment law. If the passage stays in the opinion, it's going to have a quite dramatic effect, perhaps inadvertently, on how the Fourth Amendment applies to computers and the Internet. And in my view, those effects are bad. Really, really bad. In this post, I want to say why the passage in Rosenow is so important, and why it's so disturbing. And I'll suggest a possible path forward to deal with it.

I. An Overview of the Rosenow Case

Rosenow arose out of an investigation into child exploitation in the Philippines. Two large Internet providers, Yahoo and Facebook, ended up being involved. That led eventually to Rosenow's arrest on his return from the Philippines to the United States and a search through his computers pursuant to a warrant. The search revealed child sexual abuse material (CSAM), also known as child pornography, including some involving sexual acts between Rosenow and prepubescent Filipina girls. On the basis of the images found on his computer, Rosenow was convicted of sexual exploitation and CSAM possession.

On appeal, Rosenow made several different arguments in his merits brief. A majority of the merits arguments were on Fourth Amendment law. The primary Fourth Amendment claim was that Yahoo and Facebook had become state actors, and that their accessing account information was a government search that triggered the Fourth Amendment. But Rosenow also challenged other parts of the investigation, including the validity of the warrant obtained and whether accessing basic subscriber information was a search.

The Ninth Circuit affirmed in a published opinion by Judge Forrest, joined by Judge Callahan, with a partial dissent by Judge Graber. The Court ruled that Facebook and Yahoo were acting as private actors, not state actors; that the warrants were valid, and that accessing basic subscriber information is not a search under the Fourth Amendment. Judge Graber dissented in part as to one aspect of the state action ruling.

So far, this seems like an interesting decision, although on the whole relatively minor in its significance. It's mostly fact-specific issues (such as where the state action line is) or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search). It also has a lot I very much agree with, such as the specific ruling that the Stored Communications Act doesn't make Internet providers state actors.

But that's not all. There's more. And that "more" turns out to be really big -- much bigger in its importance, I think, than everything else in the Rosenow opinion.

II. The Stunning Passage in Rosenow

What is that really big thing? In his merits brief, Rosenow claimed that a set of other practices, including the preservation of his Internet account contents, violated the Fourth Amendment. The argument is less than a page of the brief, see page 64, and the only material specifically about preservation is a single sentence saying that the preservations were seizures.

To my great surprise, Rosenow's merits opinion took on those claims and rejected them on the merits. And because Rosenow is a published opinion, its holding is now binding in the Ninth Circuit. In the 45-page published opinion, here's the totality of the discussion of preservation and the Fourth Amendment:

Were the preservation requests unconstitutional seizures?

Acting pursuant to 18 U.S.C. 2703(f), which requires an ESP "to preserve records and other evidence in its possession pending the issuance of a court order or other process," the government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications. Rosenow contends that these requests were an unconstitutional seizure of his property.

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.

Yikes!

III. Why the Passage Is So Important, and Why It's Really Bad.

Why is this passage so important? There are two main reasons, I think. The first is narrower, and the second broader. Let me start with the narrower reason (although it's still pretty broad!).

First, as regular readers know, I think the Fourth Amendment makes most Internet content preservation unconstitutional. You can see my full argument in this recent article of mine: The Fourth Amendment Limits of Internet Content Preservation. And you can see the argument fully written out as defense counsel might litigate it in this draft motion to suppress I recently wrote. I think this is a hugely important issue, although it remained almost entirely unlitigated, much to my frustration. No federal court of appeals has decided this issue until Rosenow. The Ninth Circuit heard oral argument on this issue and had extensive briefing on it (with amicus oral argument participation, and briefing, from the ACLU) in United States v. Basey in 2019, but the panel did not reach the question in its decision.

For the Ninth Circuit to weigh in in this fashion when it wasn't fully briefed, and to reject these claims on the merits, is a big deal. It means that the government is free to pursue unlimited preservation, even though the major (and to my mind persuasive) arguments for why it shouldn't be able to do that have not been presented to the court that is saying this is permissible.

That's huge. Under Rosenow, any government official can at any time order any Internet provider to run off a copy of anyone or even everyone's entire account contents. The only authority on the question is now Rosenow, which rejects the claim. I think this is all wrong on the merits. But more importantly, it's wrong on a vast scale: As explained in my article, there are hundreds of thousands of Internet preservations occurring every year. This passage in Rosenow gives any government official a blank check to order any preservation of anyone or everyone's account without limit. To decide this important a question in such a brief and unexplained passage is remarkable.

So that's the narrower (but again, pretty broad) problem. Here's the even broader one. The particular way that Rosenow rules for the government is incredibly far-reaching and deeply troubling. Here's the key passage again:

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.

This is a remarkably far-reaching ruling, and all in just two sentences. Whether and when copying data is a Fourth Amendment seizure is one of the foundational questions of the future of Fourth Amendment law that has been in the background of the caselaw for years. And it's also been a topic in scholarship for a long time, including stuff I have spent a lot of time on. As longtime readers may remember, in 2005 I initially concluded that copying wasn't a seizure. By 2010, however, I had changed my mind, and I wrote an article explaining why copying ordinarily is a seizure, using preservation requests as an example: Fourth Amendment Seizures of Computer Data, 119 Yale Law Journal 700 (2010).

District courts have divided on the question. And the one federal court of appeals ruling on it, which had held that copying is a seizure, was vacated when the court went en banc (presumably for reasons other than the seizure ruling, as there was a lot more going on in the case). SeeUnited States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government's retention of electronic copies of the defendant's personal computer "deprived him of exclusive control over those files," which was "a meaningful interference with [the defendant's] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment."), vacated by United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc). So until Rosenow, there was no circuit court precedent on this foundational question.

By ruling that copying is not a seizure, the Ninth Circuit becomes the first circuit court to have ruled on the question in a decision that is still on the books. And the question is of dramatic importance, as the introduction to my 2010 articleflags:

Imagine the police take away a suspect's computer, make a digital copy of its contents, and then give the computer back to the suspect. The police do not open the copy, but they keep it in their custody in case they need to access it later. Does the combined act of copying the files and retaining the copy trigger the Fourth Amendment?

Next imagine that FBI agents believe a particular person is using the Internet to commit a crime. Agents install a surveillance tool at the target's Internet service provider (ISP), and the tool generates copies of all of the target's incoming and outgoing email. The email is copied to a file, but no human being actually looks at the file. Instead, the agents keep the file in case they develop probable cause to look through it for evidence. Again, does the Fourth Amendment allow it?

The answer to both scenarios depends on whether copying computer files without looking at them constitutes a Fourth Amendment "seizure. If copying a computer file amounts to a seizure, then the government cannot make and retain a copy absent special circumstances. On the other hand, if copying is not a seizure, then the government can make and retain the copy without restriction. The Fourth Amendment will limit looking through the copy because that is a Fourth Amendment "search. But what if the government wants to make a copy and hold it? Does that constitute a "seizure"?

Putting the preservation issue aside, a ruling that copying is not a seizure has extraordinary implications. Whether you agree with that holding or disagree with it, I don't think it's a conclusion that is best reached in a precedential opinion in just two sentences.

And that's not all. The Rosenow passage includes this sentence:

It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.

What were those terms of use? Earlier in the decision, the court notes a fairly standard term in its privacy policy, here Yahoo's, that Yahoo may disclose information "to investigate, prevent, or take action regarding illegal activities . . . , violations of Yahoo's terms of use, or as otherwise required by law." I assume that's the term they had in mind.

I'm not entirely sure how to read that "note." But read fully, it seems to be suggesting that agreeing to terms of use governing an Internet account can eliminate Fourth Amendment rights. In particular, the provider telling you in the fine print when you register the account that they might end up giving your data to the government in some situations is treated as forever blanket consent to that as a matter of Fourth Amendment law.

As a matter of Fourth Amendment law, I think that would be wrong, for reasons I argued here. But it's also about as far-reaching as you can get. If agreeing to standard terms of service is consent to a possible seizure, then presumably it is also consent to a possible search. That would mean that Fourth Amendment rights online can be reduced to zero through a standard online term no one reads, and that users can't avoid, that were created just to make sure no one can sue the providers for complying with valid legal process. I don't want to be apocalyptic, but this seems really really bad.

IV. A Possible Way Forward

What are the prospects for further review? En banc review is possible. Counsel for Rosenow has received an extension for a petition for rehearing, until June 8. When the petition for rehearing is filed, it's possible that the court could want an en banc panel to take a look at the preservation issue, which could lead to a new opinion. And I would certainly support a full look at the preservation issue by the en banc court.

But there's also a narrower way, should the court not want to go en banc on this or another part of the case. It seems to me that another way forward would be for the panel to just amend the opinion, only changing that passage, to say the issue will not be addressed because it was not fully briefed and was therefore waived.

Here's some context. Under Ninth Circuit practice, an issue is deemed waived unless the appellant "specifically and distinctly argue[d] the issue in his or her opening brief." United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). The appellant has to specifically and distinctly raise the issue, and it then has to be "supported by argument" in the opening brief, for the Ninth Circuit to rule on it. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).

As I read the opening brief, whether preservation is an unreasonable seizure was neither specifically and distinctly argued nor supported by argument in the opening brief. Here's the full section from the opening brief:

The government's subpoenas and preservation requests were also illegal searches and seizures under Carpenter.

The recent Supreme Court case Carpenter v. United States, 138 S. Ct. 2206 (2018) also instructs that Rosenow had a legitimate right to privacy in his digital data, and that it violated the Fourth Amendment to interfere with that right without a warrant and probable cause. In Carpenter, the government obtained orders directing wireless carriers to provide cell-tower data regarding several criminal suspects. Id. at 2212. The Supreme Court reversed the resulting conviction, holding that warrantlessly obtaining this information violated the Fourth Amendment. In so doing, it rejected the notion that the third-party doctrine insulated this information from Fourth Amendment scrutiny, noting that thirdparty- doctrine cases did not deal with "confidential communications" and other private information. Id. at 2219. [FN158] The Court held that a warrant should have been required: "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" it observed. Id. at 2221 (emphasis provided). "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." Id. at 2222.

Carpenter demonstrates that searches and seizures occurred here. The government seized Yahoo records through ongoing preservation requests, with no notice to Rosenow. And it both seized property and affirmatively prompted additional searches by issuing administrative subpoenas to Facebook. Under Carpenter, this should have required a warrant showing probable cause. Because the government had neither, this evidence should have been suppressed.

[FN158: Even the dissent seemed to concede that private communicationsas opposed to mere location datawould not be governed by the third-party doctrine. See id. at 2230 (Kennedy, J., dissenting) ("Miller and Smith [the leading third-party cases] may not apply when the Government obtains the modern-day equivalents of an individual's own 'papers' or 'effects,' even when those papers or effects are held by a third party.") (citing Ex parte Jackson, 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak, 631 F. 3d 266, 283-288 (6th Cir. 2010) (e-mails held by Internet service provider)).]

The claim here seems to be that, somewhere in the subpoenas and preservation requests, there were unreasonable searches and seizures. Most of the passage seems to be arguing that the subpoenas were searches under Carpenter, a claim that in my view the Ninth Circuit properly rejected.

But here's the key. As I read that passage, it doesn't seem to be separately and distinctly claiming that preservation is an unreasonable seizure, or offering a legal argument for why that might be. The test for what is a seizure is not even mentioned. How the test might apply is not mentioned. The test for the reasonableness of a seizure is not mentioned (much less applied) either, except to say that a warrant should have been required. Compare that passage to the model brief I recently posted. It seems to me that the opening brief in Rosenow did not put the court on notice of the legal questions before it on the preservation issue. You'd have to guess what the specific arguments were on the preservation issue, as the opening brief didn't flag them, much less make them.

I don't mean to criticize the hard-working counsel in the case. I believe Rosenow was the first case ever to get an opinion on the Fourth Amendment issues raised by preservation in the trial court decision. To use an exam-grading analogy ('tis the season): The issue was spotted, unlike all the other cases where counsel have just missed it. The opening brief raised a lot of issues, and went right up to the page limit, so it may not have been developed because of other issues in the case. And I agree that the preservation issue was addressed in more detail in the Ninth Circuit reply brief.

But it seems to me that, if the court doesn't want to take this enormously important set of questions on en banc, it might be wise to amend the panel opinion to recognize that there's a lot more going on in the case than the panel realized given that the issue was not fully developed in the opening brief. That would make no difference to the outcome. And it would just replace a single paragraph in the opinion, as the analysis paragraph would just become a waiver paragraph. But it would mean that these critical and novel legal issues could wait for full briefing and decision in another case.

As always, stay tuned.

[UPDATE: I fiddled a bit with the post shortly after posting it.]

See the original post here:
The Ninth Circuit's Stunner in Rosenow, and Thoughts on the Way Forward - Reason

I know Im not stupid, but did you watch Mattea Roach on Jeopardy? I was spell-bound while she immediately hit her buzzer with the correct answer to many more questions than I can imagine ever having learned about. There she was, immediately recalling the name of a teeny island that I never heard of, dates of events so old they predate our ancestors ancestors. From the air, she easily pulled names of third and fourth cousins of the ninth reigning queen of a country thats been extinct for several lifetimes. How in the world did she do it?

I know our brains are supposed to have been the first computers, but come on! It doesnt mean we dont forget things. It doesnt mean we all can analyze formulas and recall everything weve ever learned for the rest of our lives. Contestants like Mattea have fascinated me from the first time I realized how few questions I can answer on Jeopardy while it is childs-play to them.

I would love to talk to the parents of these wonder-women and -men. How did they raise such smart people? Did they have implants inserted in their children at birth? Did they constantly play music as they raised their children? Ive read that music stimulates the young brain, especially while they sleep. There may be truth to that, as my granddaughters mother played soft music every night while Cadence slept and believe me, she is one smart cookie. My parents, on the other hand, liked a quiet house, so musical notes rarely bounced off our walls. When I became aware of the Beatles, back in the 60s, I got a record player, built a collection of 33 1/3s, and played music in my room with the door closed, but I think it was too late for me. So, here I am, not the brightest light bulb in my husbands garage, but I get by.

Getting by would not be acceptable to people like Mattea. To excel beyond supposed human capabilities is more her speed. Is there a limit to how much information a human being can retain forever? Ive read that the only reason animals dont outsmart us is because our brain to body ratio is greater than those of whales, elephants, all animals for that matter.

YET, on the other hand, what do brainiacs do with all that knowledge reverberating within their skull? Is there really a need to know everything? Is one lifetime enough to put all that knowledge to good use? Too bad people cant share their intelligence with the rest of us lesser souls. Im sure Mattea could give me one-third of her intelligence and never miss it. But what a difference it would make to me. What would you with, say, five times more intelligence and memory capability than you have now? Invent a cure for cancer? Figure out how to get to the end of the wild blue yonder? Look beyond yourself to the needs of others and instantly know what they need and how to supply it? Maybe not only present our opinions, but instantly present facts (real facts, not made-up ones) on which we base our opinions?

On the other hand, does the world really need us all to know everything at the drop of a question? There are places for us sitting on the lower rungs. Maybe high intelligence doesnt equal patience, empathy, and generosity. Now, Im not suggesting high intelligence equals lack of humanity that certainly would be outweighed by caring people in the medical field, teaching, and yes, even in politics. What Im saying is, arent our needs fulfilled by moms and dads, manual laborers, helpful neighbors, leaders of faith just as important as our highly successful scientists, archeologists, law interpreters?

Well, Ive talked myself into it. Now I can watch Mattea as she casually recalls the fourth amendment to Estonias constitution and not be jealous. She has her role in life, and I have mine. Whos to say her role is more important than mine, or yours? I guess the bottom line is to do our best, whatever that might be. Never harm, only love, share, and assist.

View original post here:
Is there really a point to knowing everything? | North State Voices - Oroville Mercury-Register

Our bipartisan, public interest organization frequently files Freedom of Information Act (FOIA) requests to learn how the FBI, CIA and other intelligence and law enforcement agencies obtain warrantless access to Americans personal information, in defiance of the Fourth Amendment. It is, to say the least, a target-rich environment.

A government watchdog agency revealed in February that the CIA has been conducting bulk surveillance of Americans in violation of that agencys charter forbidding domestic spying. In March, we learned that a component of the Department of Homeland Security is scooping up Americans personal financial transactions in the form of money transfers.

In both instances, the government acts on the belief that the Fourth Amendment requirement for a probable cause warrant can be sidestepped when it comes to obtaining our personal movements and other sensitive consumer information from our cell phones and digital devices. Government attorneys assert it is legal for their agencies to simply open the government purse and buy our data scraped from apps and social media, no warrant needed. When further challenged, the governments ultimate fallback is a claim that a Reagan-era executive order, known as E.O. 12333, means that it needs no statutory authority to look at whatever it wants.

It wasnt supposed to be like this. Congress created the Freedom of Information Act in 1967 at a time when lawless surveillance of Americans by the FBI and CIA was rampant. It sought to create balance with a tool for Americans to get some clarity about government operations. But even here, the government ignores the plain meaning of the law to do whatever it wants.

For example, our organization has been forced to sue the Department of Justice and FBI to compel them to produce records on potential spying on Congress. We are concerned that members of Congress of both parties who have publicly stated they believe U.S. intelligence agencies have been surveilling them and has unmasked their identities in foreign communications, may have been targeted by our government. We also have been forced to sue over the refusal of six government agencies to respond to a FOIA request seeking information on surveillance of presidential campaign and transition officials.

In both cases, our requests have been stymied by a legal tactic known as a Glomar response.

This judicial doctrine arose from one of this countrys greatest intelligence coups. After a Soviet nuclear ballistic missile submarine sank in the Pacific Ocean in 1968, the U.S. Navy located the wreck at a depth of three miles. With an elaborate cover story and the help of billionaire Howard Hughes, the CIA spent the current value of $1.3 billion to build an ambitious deep-sea platform, Hughes Glomar Explorer, which dropped an enormous claw to the seabed to retrieve a section of the sub.

When journalists followed up on Glomar rumors, the government developed the Glomar response, which holds that certain information vital to national security can be neither confirmed nor denied.

What was once an exceptional tactic to protect heroic intelligence operations has since become a standard ploy to render FOIA meaningless. In the case of potential spying on Congress, some of the documents we seek are correspondence between intelligence agencies and members of Congress who believe theyve been targeted. On what national security basis can the government categorically refuse to search for, and thus withhold, all correspondence with Congress?

In our FOIA concerning spying on campaigns, the government asserts that the very act of searching for documents could jeopardize national security. Opening a file drawer to look for congressional correspondence is not, in fact, analogous to publicly revealing the existence of a super-secret vessel capable of bringing a Soviet nuclear submarine to the surface. Besides, how can the government know which files are classified and involve national security, and which can be released, without looking at them?

When Attorney General Merrick Garland was chief judge of the D.C. Circuit Court, he upheld the principle that official acknowledgement of documents can force their disclosure over an otherwise valid Glomar response. Perhaps courts could further adopt a bright-line rule that would balance national security and the U.S. Constitution. They could hold that an agency is acting in bad faith when it attempts to Glomar documents containing evidence of possible illegal interference in Congress and campaigns.

Judges are the Constitutions last line of defense. The expansion of the Glomar loophole to circumvent FOIA threatens to render a law passed by Congress, and signed by a president, with the approval of the American people who elected them, utterly meaningless. At the very least, the courts should make the agencies look through their files as FOIA clearly demands.

Unless judges respond with some vigor, the trust Americans place in our government will deserve to be lower than a Soviet sub stuck in the Marianas Trench.

Mark Udall was a U.S. senator representing Colorado from 2009 to 2015. Bob Goodlatte represented Virginias 6th District in Congress from 1993 to 2019 and chaired the House Judiciary Committee. Both are senior policy advisers to the Project for Privacy and Surveillance Accountability.

See original here:
We can neither confirm nor deny were spying on Congress - The Hill

Using Samuel Alitos logic in proposing to strike down the right to an abortion, other rights that you take for granted could also be eliminated. The argument is that if something is not mentioned in the Constitution, that right is based only on the majority opinion of the Supreme Court. Thus, if the Roe vs. Wade decision was wrong, the current court could reverse that decision.

This opens to door to removing other presumed rights. For example, the Constitution does not give you the right to own an AR-15. The Second Amendment only gives you the right to keep and bear arms and says nothing about private ownership. The Swiss government used to require all men of a certain age to keep their military weapon at home while not on deployment or in training. The Constitutions language does not say it allows for private ownership just to keep and bear arms for a well regulated militia. The only thing that allows you to own firearms is the interpretation by the Supreme Court, which we now see can change.

How about your right to privacy? The Fourth Amendment only protects you from unreasonable searches and seizures but says nothing about privacy. A state could sue to make all medical, educational, and employment records public. If the Supreme Court agrees that the Constitution does not address these, it could rule that all records can be made public.

How about the right to travel between states? There is nothing in the Constitution that gives you that right. Thus, if a state wants to restrict entry or charge you $100 to enter the state, the Supreme Court could use the logic applied to Roe vs. Wade to allow a state to do that.

More likely the so-called conservatives who brought the lawsuit on Roe vs. Wade will go after your right to enter a mixed-race marriage or marriage for same sex couples. The right to use contraception services and products would also be subject to the whim of five justices. The Constitution does not address these rights any more than it addresses Roe vs. Wade.

Let your imagination run free to think of all the rights you think you have that are not explicitly covered by the Constitution or its amendments. Public education, libraries, and healthcare are among the things not mentioned in the Constitution and would be fair game for revocation or elimination.

The other part of the argument against abortion rights is that until 1973 there was no support for a constitutional right for access to an abortion. That logic might mean that women will again need to get a mans permission to get a credit card, which was the case before 1973. Not allowed until after 1973 was the protection for a woman not to get fired if she got pregnant or to sue for sexual harassment in the workplace. All rights that women and men have won since the founding of the country would be subject to cancelation.

Apparently, Alito thinks that anything after the 1600s does not qualify as being deeply rooted in the nations history and traditions as he quotes a British jurist who executed witches and advocated for executing children as young as 14. That same jurist considered women to be the property of either their father or husband. Women who were independent of a man (e.g., widows) were considered with suspicion and occasionally accused and prosecuted for practicing witchcraft.

The Roe vs. Wade decision is based, in part, on the fact that in the first trimester the fetus is essentially an extension of the womans body and upon which it is dependent for its existence. The Alito position makes the woman subservient to the fetus based on a religious position, not facts based on biology. If this religious position dictates judicial decisions, other religious positions could be imposed on all citizens. The Supreme Courts conservative majority seems intent on exercising its activist agenda to take the country back to a darker place.

(Dr. Norm Hoffman is a semi-retiredclinical psychologist living in Waynesville.This email address is being protected from spambots. You need JavaScript enabled to view it..)

Read more:
If Roe v. Wade goes, then what is next - Smoky Mountain News

Dear Chairman Scott and Ranking Member Foxx:

The U.S. Chamber of Commerce opposes H.R. 7701, the Wage Theft Prevention and Wage Recovery Act, which would hinder employees from receiving their due compensation and inhibit the use of arbitration procedures that have been shown to be highly efficient and cost effective.

While sounding benign and well meaning, the provisions on requiring pay disclosures and paystubs are redundant with rights covered under state law. Adding federal requirements would add complexity and confusion without actually improving worker protections.

Similarly, increasing the financial consequences for violations makes a great headline, but the actual impact on low-wage workers will not be to their advantage. Employers faced with such massive damages and penalties will most likely choose to challenge the citations and allegations and pursue a litigation approach. Payment of back wages would be delayed by years. The plaintiff's bar will collect more fees, but low-wage workers may see scant returns or nothing at all. The proposed increases also are inflexible with no room for discretion based on the size of business or the type of violation.

The ultimate goal of this bill is to promote expensive class action litigation that does little to help businesses and employees by precluding the enforcement of predispute arbitration clauses. Such litigation serves principally to benefit the attorneys who file class action lawsuits. Arbitration is a fair, effective, and less expensive means of resolving disputes compared to going to court. Empirical studies demonstrate that employees in arbitration do just as well, or in many circumstances, considerably better, than in court. For example, recent studies have found that employees in arbitration prevail three times more often, win more money, and resolve their claims must faster than in litigation.[1] Studies have also shown that class action settlements frequently provide only a pittance or many times, nothing at all to class members while millions of dollars are paid to their attorneys.[2]

Finally, the bills Grant Program would deputize advocates to help conduct investigations. This would eradicate the long tradition of employers voluntarily cooperating with agency investigations, producing documents, and welcoming investigators into their worksites. If the Department of Labor brings along unions and advocates, employers would likely stop cooperating and insist on search warrants and document subpoenas, in accordance with the Fourth Amendment. Again, more complexity, longer investigations, and more litigation will harm low-wage workers by delaying payment of wages.

The Chamber urges the Committee not to approve the Wage Theft Prevention and Wage Recovery Act.

Sincerely,

Neil L. Bradley

Executive Vice President, Chief Policy Officer,

and Head of Strategic Advocacy

U.S. Chamber of Commerce

cc: Members of the House Committee on Education and Labor

[1] See Fairer, Faster, Better III: An Empirical Assessment of Consumer and Employment Arbitration (March 2022) available at https://instituteforlegalreform.com/research/update-an-empirical-assessment-of-consumer-employment-cases-in-arbitration-litigation/.

[2] See Do Class Actions Benefit Class Members? An Empirical Analysis of Class Actions (Dec. 11, 2013) available at https://www.mayerbrown.com/files/uploads/documents/pdfs/2013/december/doclassactionsbenefitclassmembers.pdf.

Go here to read the rest:
U.S. Chamber Letter on H.R. 7701, the Wage Theft Prevention and Wage Recovery Act - uschamber.com

from the maybe-don't-gather-all-this-data-in-the-first-place? dept

Googles market share and capacity to gather billions of data points has made it the most popular target for so-called warrants that seem to elude both particularity requirements and the Supreme Courts decision in the Carpenter case.

To be a reasonable search, law enforcement is supposed to be able to show the information it seeks can be found where they say it is and be relevant to the investigation. Reverse warrants warrants in which law enforcement seeks location data and other info from everyone in a certain area at a certain time only satisfy one of these requirements. If courts are persuaded the only thing that needs to be shown is the likelihood Google has this data, then the warrants are good.

If the warrants need to show the data sought pertains to criminal suspects, the warrants should obviously fail. Rather than showing probable cause to search for data related to suspects, reverse warrants turn everyone in the area into a potential suspect and allows law enforcement to work backwards from the data dump to identify people it feels might be involved in the crime being investigated.

Recently, a Virginia court blocked a reverse warrant served to Google in a robbery case, saying it was unconstitutionally vague. This decision remains an outlier, though, and use of reverse warrants continues to increase exponentially with each passing year.

In a legal brief filed in the case, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S., the judge wrote in her ruling.

Some belated pushback has begun, courtesy of the state of New York. Theres more pushback on the way, this time via the companies targeted by geofence/reverse warrants and so-called keyword warrants, which demand information on internet users who have searched for certain terms. Google is the primary recipient of these warrants as well.

The Reform Government Surveillance group composed of a dozen tech companies, including Google, Apple, Twitter, and Meta has issued this statement in support of the New York bill.

Reform Government Surveillance supports the adoption of New York Assembly Bill A84A, theReverse Location Search Prohibition Act, which would prohibit the use of reverse location and reverse keyword searches.

This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term.

The EFF correctly points out the danger of these warrants, whose use has exploded over the last half-decade.

These reverse warrants have serious implications for civil liberties. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest,as happened in Kenosha, Wisconsin during a protest against police violence. And, as EFF has argued in amicus briefs, it violates the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets, the majority of whom have no connection to any crime.

These are problematic. But so are the data-harvesting efforts of tech companies. Americans are generally leery of the always-on tracking and data collection these companies engage in. They become significantly more worried when they discover just how easily the government can access this massive amount of data.

Tech companies are right to oppose government surveillance overreach. But they also need to be a lot more honest with their users, informing them in plain English about whats being collected, when its being collected, how long its retained, and what the aggregate collection can reveal about their activities and social connections.

They also should do more to assure third party app developers arent abusing permissions to collect even more data government agencies can obtain without a warrant. And they should give users easy ways to opt out of collections and ensure users are well informed about potential usability downsides of opting out so they can grant truly informed consent to service providers.

Making noise about government surveillance doesnt excuse the bad habits of tech companies. While its good to see them stand up against government overreach, they should probably take this opportunity to engage in a bit of introspection to see if theyre not just making the situation worse by hoovering up every bit of data possible, putting it only a questionable piece of legal paperwork away from the governments all-seeing eyes.

Filed Under: 4th amendment, location data, privacy, reverse warrants, surveillanceCompanies: apple, google, meta, twitter

Read the original:
Tech Companies Oppose 'Reverse Warrants,' Say Surveillance Of User Location Data Should Be Limited To Tech Companies - Techdirt

This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

1. A ruling from the U.S. District Court for the Southern District of New York compelling one of the defendants to produce earlier in time emails from email threads and addressing how email threads may be handled on the parties privilege logs.

InIn re Actos Antitrust Litigation, No. 1:13-cv-09244 (RA) (SDA), --- F.R.D. ----, 2022 WL 949798 (S.D.N.Y. March 30, 2022), U.S. Magistrate Judge Stewart D. Aaron addressed a motion to compel one of the Defendants to produce earlier in time emails that were included in threaded emails defendants already produced.

In this antitrust class action alleging that Defendants prevented competitors from timely marketing a generic drug, the parties had entered into a protocol for the production of electronically stored information (ESI) in native format that required the parties to de-duplicate the ESI produced but did not address the production of only the most inclusive email threads.Id. at *1. In making its productions, the Defendant against whom the motion to compel was brought used email threading, by which a party reviews and produces the most-inclusive email in a thread. Plaintiffs objected to this format of production and sought to compel Defendant to produce earlier-in-time emails as well as the metadata associated with those emails.

Magistrate Judge Aaron began by noting that the parties dispute highlighted the importance of negotiating a comprehensive ESI protocol before data production is undertaken.Id. at *2. He explained that the parties ESI protocol did not expressly permit the use of email threading, nor do the Federal Rules of Civil Procedure or the local rules of the court contain any provisions regarding the use of email threading. Magistrate Judge Aaron also noted that the Sedona Principles encourage parties to have early discussions regarding procedural issues relating to the form of production and to enter into an agreed upon protocol governing the production of ESI and avoid downstream misunderstandings or disputes.Id. (quotingThe Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, Comment 3.c. (2018)).

Magistrate Judge Aaron stated that it is not uncommon for ESI protocols to address the use of email threading, and Plaintiff had pointed to prior litigation in which Defendant had agreed to an ESI protocol that addressed email threading.Id. at *3. But the parties did not address email threading in this case.

Magistrate Judge Aaron found that Defendants exclusion of lesser included emails from production resulted in the exclusion of the metadata associated with earlier emails in a chain and that this exclusion materially reduced Plaintiffs ability to search for all correspondence within a date range. In particular, he found that excluding lesser included emails resulted in the recipients of some such emails not being identified and that it resulted in the loss of information identifying who was blind copied on lesser included emails even though this information was among the metadata the parties agreed to produce. In this regard, Magistrate Judge Aaron noted that the parties could have included in the ESI protocol provisions for the production of metadata to resolve these issues, but Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner.

Ultimately, Magistrate Judge Aaron declined to impose email threading on Plaintiffs. Even though he recognized that production of earlier-in-time emails would cause some additional burden on Defendant, he found that any additional burden is not undue as Defendant agreed to the ESI protocol and likely already had reviewed many of the emails at issue. Accordingly, Magistrate Judge Aaron ordered Defendant to produce all responsive ESI to Plaintiffs, including earlier-in-time emails.

Magistrate Judge Aaron also provided guidance regarding a dispute between the parties regarding how email threads should be identified on privilege logs. He noted that the local rules of the court, specifically Local Civil Rule 26.2(c), provides that when asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category.Id. at *4. Magistrate Judge Aaron also quoted at length from the committee note to this local rule, including that [b]ecause the appropriate approach may differ depending on the size of the case, the volume of privileged documents, the use of electronic search techniques, and other factors, the purpose of Local Civil Rule 26.2(c) is to encourage the parties to explore methods appropriate to each case.

Based on these principles, Magistrate Judge Aaron concluded that categorical privilege logs are appropriate and that such a log is adequate if it provides information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege. He further noted that Plaintiffs proposal of permitting categorical logging of emails only where all emails involved the same participants and subject matter would not be appropriate, nor would Defendants proposal of only logging the threaded emails together.

2. An order from the U.S. District Court for the District of Kansas denying a motion to add plaintiffs outside counsel to plaintiffs list of document custodians for discovery purposes.

InOrchestrate HR, Inc. v. Blue Cross and Blue Shield of Kansas, Inc., No. 19-cv-4007-HLT-TJJ, 2022 WL 834066 (D. Kan. Mar. 21, 2022), U.S. Magistrate Judge Teresa J. James denied Defendants motion to add plaintiffs outside counsel to Plaintiffs list of document custodians for discovery purposes.

Defendants motion asked the court to revisit an earlier ruling that Plaintiffs outside counsel of record, Jose Portela, was not a proper custodian.Id. at *1. Defendant argued that documents produced by Plaintiffs and nonparties, as well as Defendants own documents, indicated that Portela was personally and significantly involved in specific elements of newly pleaded claims. Specifically, Defendant described business communications between Portela and third parties directly relating to issues falling within Defendants discovery requests. Portela asked the court to require Defendant to identify any of the communications counsel was describing that involved only Portela and not his employer because Plaintiffs would likely drop any claim based on those communications. Magistrate Judge James obliged, stating that Defendants motion would need to identify the specific communications that provide the support for Defendants request.

Laying out the legal standard, Magistrate Judge James emphasized the importance that discovery, in particular discovery of ESI, is proportional to the needs of the case. She stated that [t]he proportionality standard requires consideration of the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Magistrate Judge James noted here that early in the litigation, the parties agreed to confer in good faith regarding the identities of ESI custodians in light of these challenges.

Magistrate Judge James then commented that relatively little legal authority existed regarding motions to compel the designation of an additional ESI custodian but thatThe Sedona Principles, Third Editionprovided four key principles that informed the analysis.Id. at *2. First, determining what is relevant and proportional under the circumstances for each matter often requires a highly fact specific inquiry. Second, absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information and to search the files of those individuals. Third, unless the partys choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should not dictate the designation of ESI custodians. Fourth, the party seeking to compel the designation of a particular additional ESI custodian has the initial threshold burden of showing that the disputed custodian's ESI likely includes information relevant to the claims or defenses in the case. This is because the party responding to discovery requests is typically in the best position to know and identify those individuals within its organization likely to have information relevant to the case.

Magistrate Judge James noted that Defendants motion was based not on an exception to attorney client privilege but that Portela had access to, or was actively involved in, hundreds of relevant communications related to new claims in Plaintiffs complaint.Id. at *3. Magistrate Judge James rejected Defendants suggestion that the circumstances had significantly changed since its previous attempt to make Portela a custodian. Magistrate Judge James observed that Defendant failed to enumerate any such communication that involved solely Portela and Defendant and misquoted a paragraph in Plaintiffs complaint in its argument that there were hundreds of pertinent communications. She further observed that Plaintiffs added no new causes of action to the complaint and relied on no new exhibits or documents other than four documents produced by Defendant. Magistrate Judge James therefore concluded that the circumstances had not changed since the courts last ruling that Portela would not be a custodian.

Magistrate Judge James then examined Portelas alleged personal and significant involvement in the underlying subject matter of the case. She found Defendants assertion that there were more than 150 communications between Portela with no other Plaintiff representative as sender or recipient unmeaningful, given the length of time Portela had represented Plaintiffs.Id. at *3-*4. Additionally, none of the referenced 150 communications indicated significant involvement in the facts; many did not predate the litigation itself, and over half involved the scheduling of conference calls.

Magistrate Judge James also rejected Defendants argument that because Portela was not a named custodian, no searches between Portela and relevant entities had been conducted. To the contrary, Plaintiffs had produced over 600 documents with Portela as the custodian. Further, Defendant had made a number of exaggerated claims to support its argument; in one example, Defendant claimed that over the course of a year, Portela was in constant communication with Defendant regarding the submission of insurance claims, but the underlying emails Defendant referenced were all written over a two-week period. Magistrate Judge James also rejected Defendants argument that Portela was Plaintiffs primary representative, noting that the attachment to one of Plaintiffs exhibits indicated that the Kansas Department of Insurance had refused to disclose any information to Portela.Id. at *5. Magistrate Judge James then concluded that adding Portela to the list of record custodians would not be proportional to the needs of the case and that Defendant had not shown why Plaintiffs productions were deficient due to Portelas not having been a records custodian.

Magistrate Judge James noted that while the finding of lack of proportionality was sufficient reason to deny Defendants motion, the other factors supported denial as well. The second factor posits that the responding party is entitled to select its own custodians absent an agreement between the parties to the contrary. Because Plaintiffs must supplement or correct any of their initial disclosures if additional or corrective information arises that had not been disclosed during discovery, they would be obligated to conduct a search of Portelas emails if necessary, but otherwise were not under an obligation to do so. Under the third factor, a court should not dictate the designation of ESI custodians unless the partys choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient. Magistrate Judge James pointed to her prior analysis that Defendant had not done so. The fourth factor states that the party seeking to compel the designation of a particular ESI custodian has the initial threshold of showing that the disputed custodians ESI likely includes information relevant to claims or defenses in the case. Magistrate Judge similarly pointed to her prior analysis to dismiss this factor.

Magistrate Judge James then held that Defendant had not met its burden to demonstrate that Portela should be added to the Plaintiffs custodian list absent agreement of the parties and denied Defendants motion.Id. at *6.

3. A decision from the U.S. District Court for the Eastern District of New York denying a motion to compel a forensic examination of plaintiffs cell phone based on alleged alteration of metadata for certain video files from the cell phone that were produced by plaintiff during discovery.

InAminov v. Berkshire Hathaway Guard Insurance Companies, 21-CV-479-DG-SJB, 2022 WL 818944 (E.D.N.Y. Mar. 3, 2022), U.S. Magistrate Judge Sanket J. Bulsara denied a motion to compel Plaintiff to produce his cell phone for forensic examination based on alleged alteration of metadata for certain video files Plaintiff produced during discovery.

Magistrate Judge Bulsara began his analysis by noting that [f]orensic examinations of computers and cell phones are generally considered a drastic discovery measure because of their intrusive nature.Id. at *1. In this regard, Magistrate Judge Bulsara cited the Advisory Committees note to Rule 34(a) to the effect that [i]nspection or testing of certain types of electronically stored information or of a responding partys electronic information system may raise issues of confidentiality or privacy and that [c]ourts should guard against undue intrusiveness resulting from inspecting or testing such systems. He further noted that compelled forensic imaging is not appropriate in all cases and that courts must consider the significant interests implicated by forensic imaging before ordering such procedures.Id. (citingJohn B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)).

Magistrate Judge Bulsara stated that in situations where a party can show improper conduct on the part of the responding party, a forensic examination may be appropriate. For example, discrepancies or inconsistencies in the responding partys discovery responses may justify a partys request to allow an expert to create and examine a mirror image of a hard drive. Magistrate Judge Bulsara further noted that courts have ordered computer imaging when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials that are the subject of court orders. However, he stated that there must be good cause to order computer imaging or similar forensic examinations when a party has already produced the electronic information sought in a native format.

Magistrate Judge Bulsara found that there was no such justification to order forensic imaging in this case.Id. at *2. First, he noted that the Defendants motion was based on misplaced and unsupported speculation that the metadata for the video at issue was altered. Defendants counsel had used a free online metadata tool to analyze the video file, but Defendant provided no information about the reliability of the online tool. Moreover, Defendants conclusions regarding the metadata were based on the less-than-unequivocal statement produced by the online tool that Metadata could have been changed or deleted in the past. Magistrate Judge Bulsara noted that this is hardly the kind of analysis or support that provides a reasonable basis either to conclude that there was alteration of metadata or to warrant forensic examinations.

Magistrate Judge Bulsara also found that the online tool used by the Defendant was not designed to show alteration of metadata but instead to determine whether metadata exists. He noted that the tools website described the tool as one that allows you to access the hidden ... meta data of your files. In other words, the online tool reveals metadata, and therefore at best it may have revealed that videos were produced without metadata. Magistrate Judge Bulsara further noted that the message that the metadata could have been changed or deleted appears automatically for every file that is analyzed by the tool, as a means of liability protection for the company operating the website, and that it was not specific to Plaintiffs video. According to Magistrate Judge Bulsara, [t]his is hardly the thing on which one should base a motion to compel.

Finally, Magistrate Judge Bulsara found that although Defendants counsel had spoken to a forensic consultant about the relevant video files, Defendants motion did not offer the consultants opinion about the website but referred to it only to support the idea that the original phone is necessary for metadata examination. Nor did the consultant opine that Plaintiffs files had missing or altered metadata. Ultimately, [s]ince there is no evidence of spoilation or alteration, there is no cause to require forensic examination of the cell phone on the speculation that additional metadata may exist or that the original metadata was altered.

4. An opinion from the U.S. District Court for the District of Connecticut denying a motion to suppress evidence from a cell phone where the warrant pursuant to which the cell phone had been seized broadly covered the entire contents of the cell phone and the government did not conclude the search of the cell phone until 47 days after the seizure.

InUnited States v. Harry, U.S. v. Harry, No. 3:21cr98 (JBA), 2022 WL 343963 (D. Conn, Feb 4, 2022), U.S. District Judge Janet Bond Arterton denied one of the Defendants motion to suppress evidence derived from a search of his cell phone executed by a warrant (as well as evidence gathered from a pole camera positioned by law enforcement outside of his place of business).

The Drug Enforcement Agency (DEA) intercepted communications between Defendant and the target of an investigation in 2020 and found that Defendant and the target communicated on numerous occasions in furtherance of the alleged drug trafficking conspiracy using a cell phone.Id. at *1. The government obtained a search warrant the day before Defendants arrest to seize and search the cell phone Defendant used to speak with the DEAs target.Id. at *2. The warrant attached a description of the cell phone, the times it might be seized, and the specific records and information on the cell phone to be searched. Upon Defendants arrest on June 9, 2021, the police confirmed that his cell phone was the one that was used to communicate with the target. The cell phone was put in airplane mode, and the DEA began its forensic search two days later. On or about July 19, an agent conducted a manual search of the data.

Defendant argued that the evidence obtained from his cell phone should be suppressed because the warrant lacked particularity in violation of the Fourth Amendment. According to the Defendant, the lack of particularity allowed law enforcement to search broad categories of information without temporal limitation, and law enforcement delayed the search for 47 days after the seizure before concluding its search. The government responded that the warrant was sufficiently particular because it specified the offenses for which there was probable cause, the warrant defined the place to be searched as Defendants cell phone , and it defined the types of information in connection with the suspected offenses sought from the cell phone. As for the lack of temporal restrictions, the government argued that this did not render a warrant invalid per se and the government was justified due to the scope of conduct under investigation. Finally, the government stated that the delay was not unreasonable as it was executed within the time constraints of Federal Rule of Criminal Procedure 41.

After explaining the general rule for particularity of warrants under the Fourth Amendment, Judge Arterton applied the rule in the context of electronic devices. She stated that courts must be attuned to the technological features unique to digital media as a whole and to those relevant in a particular case.Id. at *3 (quotingUnited States v. Ganias, 824 F.3d 199, 213 (2d Cir. 2016)). She further stated that a warrant may therefore be broad in that it authorizes the government to search an identified location or object for a wide range of potentially relevant material, without violating the particularity requirement.Id. (quotingUnited States v. Ulbricht, 858 F.3d 71, 102-03 (2d Cir. 2017)).

Judge Arterton concluded that the warrant, while broad, did not lack particularity in terms of the data to be searched, pointing to the attachments to the warrant as support. She stated that the first attachment clearly specified the property to be seized as well as the appropriate time and place such seizure may occur. The second attachment limited the warrant to searching data that might reveal evidence that Defendant violated the drug trafficking offenses for which he was a suspect and listed the categories of data that might have revealed this evidence. This included photographs and videos, encrypted communications, contact lists, and notes, records, ledgers, and any documents indicative of drug trafficking.

Defendant argued that the warrant was still defective because it used the phrase any and all data throughout as to his specific criminal offenses and thus impermissibly authorized agents to access locations within his cell phone beyond the scope [of] their stated probable cause. As an example, Defendant contested the search of photographs, digital notes, and ledgers on his cell phone because no information from the investigation suggested that Defendant had any such documents indicative of drug activity on his phone. CitingUnited States v. Zemlyansky, Defendant argued that the juxtaposition of a few specific locations in the same warrant authorizing a widespread general search for any and all data risked confusing the searching agent.

Judge Arterton was unpersuaded, distinguishing the instant search warrant from the one inZemlyansky.Id. at *4;see U.S. v. Zemlyansky, 945 F. Supp. 2d 438, 460 (S.D.N.Y. 2013). First, the warrant inZemlyanskydid not direct the search officers to seize evidence related to or concerning any particular crime or type of crime and allowed officers to seize any cell phone found at a certain place of business that the officers believed could have been associated with unspecified criminal suspects.Id. (citingZemlyansky, 945 F. Supp. 2d at 456-459). TheZemlyanskywarrant also authorized officers to conduct boundless, discretionary searches of any electronic device found at that location.Id. (citingZemlyansky, 945 F. Supp. 2d at 458-459). Judge Arterton stated that the warrant at issue had a narrower scope, limiting the search to specific criminal offenses stored on a single device.

Judge Arterton continued that the phrase any and all data did not confer unlimited discretion for officers to search for irrelevant data. She stated that law enforcement had probable cause that Defendant used his cell phone to engage in a drug conspiracy and therefore a reasonable basis to expect the cell phone to have incriminating evidence in many different forms. Judge Arterton further stated that it will often be impossible to identify in advance the words or phrases that will separate relevant files or documents before the search takes place, because officers cannot readily anticipate how a suspect will store information related to the charged crimes.Id. (citingUlbricht, 858 F.3d at 102). The warrant limited officers to searching only the records and information in the cell phone that constitute evidence and instrumentalities of violations of [distribution of controlled substances, use of a communication faculty, and money laundering]. In areas where a specific criminal statute was not referenced, the warrant still referred to particular criminal conduct, showing that the whole search was based on suspicion of criminal activity and the searches were only pertaining to that activity.

Judge Arterton found that the lack of a time period restricting the relevant data to be searched did not invalidate the warrant because [w]hile the lack of temporal limitations in a warrant is considered in evaluating a warrants particularity, it is not the sole factor.Id. (citingUnited States v. Wey, 256 F. Supp. 3d 355, 388 (S.D.N.Y. 2017)). She added that the complexity and duration of the alleged criminal activities may diminish the significance of temporal restrictions. Therefore, while a specific timeframe would have been beneficial, its absence did not invalidate the warrant.

Judge Arterton next rejected Defendants argument that the search was unreasonably delayed. Defendant cited to authority from the Second Circuit suggesting that a monthlong delay to apply for a warrant exceeded what was ordinarily reasonable.Id. at *5. While Defendant argued that the issue in that case was the delay in searching a cell phone that had been seized, Judge Arterton disagreed, pointing out that the issue was seizing property pending the issuance of a search warrant.Id. (citingU.S. v. Smith, 967 F.3d 198, 205 (2d Cir. 2020)). She stated that Defendants reading of authority was incorrect and did not contemplate delays in searching a cell phone seized pursuant to a valid warrant.

Judge Arterton instead cited the requirements under Federal Rule of Criminal Procedure 41 that law enforcement must execute a warrant within 14 days. Regarding ESI, that time period referred to the seizure or on-site copying of the media or information and not to any later off-site copying or review.Id. (citing Fed. R. Crim. P. 41(e)(2)(B)). Further citing the 2009 Advisory Committee Notes, Judge Arterton explained that the rules acknowledged the need for officers to seize or copy the entire storage medium and review it later to determine what electronically storied information falls within the scope of the warrant.Id. (citing Fed. R. Crim. P. 42(e)(2)(B) advisory committees notes to the 2009 amendment). She pointed out that the Advisory Committee also noted that practical reality meant that a substantial amount of time could be involved in the forensic imaging and review of information. Judge Arterton stated that the Governments Rule 41 violation should not be remedied by suppressing evidence unless (1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.

Judge Arterton stated that the affidavit supporting the search warrant included information about the amount of time the search would take and noted that the initial search of the cell phone took place the same day it was seized.Id. at *5. The government conducted a more thorough search when it deemed it technically practicable. On this basis, Judge Arterton found the delay reasonable, but even if it was not reasonable, the Defendant had not demonstrated prejudice or that it was the result of intentional and deliberate disregard of a provision in the rule. Therefore, suppression was not appropriate.

Excerpt from:
May's Notable Cases and Events in E-Discovery - Lexology