When Can Cops Can Enter Private Homes without Warrants? SCOTUS Justices Seemed Annoyed That They Were Being Asked to Decide

Can the police legally follow you into your home without a warrant, solely because they suspect that you committed a misdemeanor? This is precisely the question the Supreme Court of the United States has been asked to answer in Lange v. California. Based on the Court’s questions during Wednesday’s oral arguments, though, it doesn’t seem like the Court is planning to hand down a ruling that would answer the question for all such cases.

First, let’s review the facts, which fall into a narrow factual crevice in which Fourth Amendment law isn’t exactly clear.

Arthur Gregory Lange had been driving home in California one night listening to loud music, at one point honking his horn a few times. A police officer followed Lange. Later, that officer said he believed the music and honking were misdemeanor violations of the California Vehicle Code.

The officer drove behind Lange, initially without lights or sirens activated. Lange then approached his own driveway. At that time, the officer activated his lights. Lange entered his own driveway, opened his own garage door, pulled into the garage, and tried to close the electric garage door. The officer exited the squad car, then stuck his foot under Lange’s garage door door to stop it from closing. The officer came into the garage, and at that time, allegedly smelled alcohol on Lange’s breath. The officer ordered Lange out of the garage for a DUI investigation.

The officer had proceeded without a warrant. Under the Fourth Amendment, police must obtain a warrant before entering a home, except in “exigent circumstances.” Hot pursuit of someone suspected of committing a felony satisfies the exigent circumstances standard – but courts are split on whether suspicion of a mere misdemeanor rises to the same level.

Lange argues that the police officer’s entry had been unlawful because the police said he had only been suspected of committing a misdemeanor.

Tough questions, frustrated justices

During oral arguments on Wednesday, the justices were clearly uncomfortable with the idea of creating any bright-line rule that would be applicable to all cases involving suspicion of misdemeanors. Time and again, the justices raised concerns about how such a rule would play out when applied in states with very different substantive criminal laws.

Though the justices focused at times on different aspects of the conundrum at hand, one thing was clear: none seemed inclined to establish a general rule that would bind all police departments in all misdemeanor cases.

Justice Stephen Breyer posed the question to Stanford law professor Jeffrey L. Fisher, who made the primary case on Lange’s behalf: “How do you draw a line?”  Noting that some misdemeanors are serious crimes, Breyer demanded, “Massachusetts is very different from California. So what do we do?”

Fisher answered that the distinction should be drawn on a case-by-case basis, leaving officers substantial discretion.

Justice Clarence Thomas pressed Fisher on the legal theories underlying Lange’s argument, some of which stem from common law principles and others from Fourth Amendment precedent. “It seems odd we’d look to common law,” remarked Thomas, “but the remedy is the exclusionary rule which has no basis in common law.”

Justice Elena Kagan, herself a former prosecutor, remarked that an inquiry into the distinction between felonies and misdemeanors misses the point. What’s really relevant, Kagan said, is whether the crime suspected is violent or non-violent.

“Most domestic violence laws continue to be misdemeanors. Most white-collar fraud crimes are felonies. That doesn’t seem to make a whole lot of sense for when you’d allow intrusions into the home and when not,” she explained.

Justice Amy Coney Barrett pointed out another relevant distinction that could prove tough to draw: the difference between “escaping arrest” and “evading arrest” following a suspected misdemeanor. Barrett raised the example of a suspected vandal who was confronted in a park by police. Once the officer shows authority and attempts to stop them, Barrett said, it would be “hard to make a distinction between a person who runs then versus someone who runs at the start.”

Fisher agreed, conceding that, “9 times out of 10, there won’t be a meaningful distinction. But you have to look under totality of the circumstances.”

Justice Breyer again raised the problem of different state criminal laws triggering different Fourth Amendment protections while questioning Deputy Solicitor General of San Francisco Samuel T. Harbourt. Giving the example of a person who committed misdemeanor assault and battery in Massachusetts, Breyer said, “in Massachusetts, if he’s beaten up into a bloody pulp four people, you cannot just automatically hostilely pursue him into the house, but in California, you can, because it’s a felony.”

“I mean they’ll be all over the place. That’s why I don’t see how to draw this line misdemeanor/felony,” commented an exasperated Breyer.

Justice Samuel Alito seemed annoyed, too, “I don’t understand why you’re here,”Alito told Harbourt, as he pointed out that the California Attorney General has the power to change California’s practices as a matter of policy without requiring intervention from SCOTUS.

Alito went on to offer yet another reason why the misdemeanor/felony distinction is problematic.

“What if a police officer has probable cause to believe a person has committed two offenses, each of which is punishable up to 11 months?” he asked.

Justice Breyer hammered his point yet again to attorney Amanda Rice, who argued on behalf of amicus curiae supporting Lange’s position. Breyer called the felony versus misdemeanor distinction a “cruel trilemma,” which could lead to a rule that would render a person’s “home [not] the castle at all for the most trivial things.”

Breyer pointed to a rather unusual California misdemeanor law: “I don’t know why California has made it a crime to give a rabbit as a lottery prize or something.” Allowing warrantless entry when a person is suspected of breaking that law would lead to an untenable result. “The rabbit case— that’s ridiculous,” Breyer said, “Police can get just into your house because you once sold a rabbit as a prize?”

Rice agreed, “that sounds lie a pretty silly law,” but the justice wouldn’t let the topic die there. “We can think of about fifty of those when we start getting into misdemeanors,” he said.

[Image via Stefani Reynolds/Getty Images]

The post When Can Cops Can Enter Private Homes without Warrants? SCOTUS Justices Seemed Annoyed That They Were Being Asked to Decide first appeared on Law & Crime.

via Law & Crime https://lawandcrime.com

February 24, 2021 at 03:57PM

Treasury Watchdog Warns of Government’s Warrantless Use of Cellphone Data

A new Treasury Department watchdog report warns that law-enforcement agencies may not be on firm legal footing when they use cellphone GPS data drawn from mobile apps without obtaining a warrant first, reports the Wall Street Journal. Many government lawyers have concluded that the decision in the 2018 Supreme Court case of Carpenter v. United States doesn’t apply because it addresses data held by cellphone carriers that contain a subscriber’s personally identifying information, rather than GPS location data drawn from apps, which doesn’t. The watchdog’s report is only a recommendation, and its interpretation of the law hasn’t been blessed by any court. However, it is the first known government analysis to raise serious doubt about the legality of law-enforcement and intelligence agencies purchasing highly revealing information generated by U.S. cellphones and other digital services.

via The Crime Report https://ift.tt/2myW3Gx

February 23, 2021 at 10:13AM

Removing a GPS tracking device from your car isn’t theft, court rules

An Indiana man may beat a drug prosecution after the state’s highest court threw out a search warrant against him late last week. The search warrant was based on the idea that the man had “stolen” a GPS tracking device belonging to the government. But Indiana’s Supreme Court concluded that he’d done no such thing—and the cops should have known it.

Last November, we wrote about the case of Derek Heuring, an Indiana man the Warrick County Sheriff’s Office suspected of selling meth. Authorities got a warrant to put a GPS tracker on Heuring’s car, getting a stream of data on his location for six days. But then the data stopped.

Officers suspected Heuring had discovered and removed the tracking device. After waiting for a few more days, they got a warrant to search his home and a barn belonging to his father. They argued the disappearance of the tracking device was evidence that Heuring had stolen it.

During their search, police found the tracking device and some methamphetamine. They charged Heuring with drug-related crimes as well as theft of the GPS device.

But at trial, Heuring’s lawyers argued that the warrant to search the home and barn had been illegal. An application for a search warrant must provide probable cause to believe a crime was committed. But removing a small, unmarked object from your personal vehicle is no crime at all, Heuring’s lawyers argued. Heuring had no way of knowing what the device was or who it belonged to—and certainly no obligation to leave the device on his vehicle.

An Indiana appeals court ruled against Heuring last year. But Indiana’s Supreme Court seemed more sympathetic to Heuring’s case during oral arguments last November.

“I’m really struggling with how is that theft,” said Justice Steven David during November’s oral arguments.

“We find it reckless”

Last Thursday, Indiana’s highest court made it official, ruling that the search warrant that allowed police to recover Heuring’s meth was illegal. The police had no more than a hunch that Heuring had removed the device, the court said, and that wasn’t enough to get a search warrant.

Even if the police could have proved that Heuring had removed the device, that wouldn’t prove he stole it, the high court said. It’s hard to “steal” something if you have no idea to whom it belongs. Classifying his action as theft would lead to absurd results, the court noted.

“To find a fair probability of unauthorized control here, we would need to conclude the Hoosiers don’t have the authority to remove unknown, unmarked objects from their personal vehicles,” Chief Justice Loretta Rush wrote for a unanimous court.

The high court’s ruling has big implications for Heuring’s case. Under a principle known as the exclusionary rule, evidence uncovered using an invalid search warrant is excluded from trial. Without the meth recovered in this search, prosecutors might not have enough evidence to mount a case against him.

The law allows a good-faith exception to the exclusionary rule in some cases where police rely on a warrant that later proves defective. But Justice Rush concluded that exception doesn’t apply here.

“We find it reckless for an officer-affiant to search a suspect’s home and his father’s barn based on nothing more than a hunch that a crime has been committed,” the court wrote. “We are confident that applying the exclusionary rule here will deter similar reckless conduct in the future.”

via Policy – Ars Technica https://arstechnica.com

February 24, 2020 at 08:05PM

Secret Court Rules That the FBI’s “Backdoor Searches” of Americans Violated the Fourth Amendment

But the Court Misses the Larger Problem: Section 702’s Mass Surveillance is Inherently Unconstitutional

EFF has long maintained that it is impossible to conduct mass surveillance and still protect the privacy and constitutional rights of innocent Americans, much less the human rights of innocent people around the world.

This week, we were once again proven right. We learned new and disturbing information about the FBI’s repeated and unjustified searches of Americans’ information contained in massive databases of communications collected using the government’s Section 702 mass surveillance program.

A series of newly unsealed rulings from the federal district and appellate courts tasked with overseeing foreign surveillance show that the FBI has been unable to comply with even modest oversight rules Congress placed on “backdoor searches” of Americans by the FBI.  Instead, the Bureau routinely abuses its ability to search through this NSA-collected information for purposes unrelated to Section 702’s intended national security purposes.

The size of the problem is staggering. The Foreign Intelligence Surveillance Court (FISC) held that “the FBI has conducted tens of thousands of unjustified queries of Section 702 data.” The FISC found that the FBI created an “unduly lax” environment in which “maximal use” of these invasive searches was “a routine and encouraged practice.”

The court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for people’s communications

But as is too often the case, the secret surveillance courts let the government off easy. Although the FISC initially ruled the FBI’s backdoor search procedures violated the Fourth Amendment in practice, the ultimate impact of the ruling was quite limited. After the government appealed, the FISC allowed the FBI to continue to use backdoor searches to invade people’s privacy—even in investigations that may have nothing to do with national security or foreign intelligence—so long as it follows what the appeals court called a “modest ministerial procedure.” Basically, this means requiring FBI agents to document more clearly why they were searching the giant 702 databases for information about Americans.

Rather than simply requiring a bit more documentation, we believe the court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for people’s communications.

Ultimately, these orders follow a predictable path. First, they demonstrate horrific and systemic constitutional abuses. Then, they respond with small administrative adjustments.  They highlight how judges sitting on the secret surveillance courts seem to have forgotten their primary role of protecting innocent Americans from unconstitutional government actions. Instead, they become lost in a thicket of administrative procedures that are aimed at providing thin veil of privacy protection while allowing the real violations to continue.

Even when these judges are alerted to actual violations of the law, which have been occurring for more than a decade, they retreat from what should now be clear as day: Section 702 is itself unconstitutional. The law allows the government to sweep up people’s communications and records of communications and amass them in a database for later warrantless searching by the FBI. This can be done for reasons unrelated to national security, much less supported by probable cause.

No amount of “ministerial” adjustments can cure Section 702’s Fourth Amendment problems, which is why EFF has been fighting to halt this mass surveillance for more than a decade.

Opinion Shows FBI Engaged in Lawless, Unconstitutional Backdoor Searches of Americans

These rulings arose from a routine operation of Section 702—the FISC’s annual review of the government’s “certifications,” the high-level descriptions of its plans for conducting 702 surveillance. Unlike traditional FISA surveillance, the FISC does not review individualized, warrant-like applications under Section 702, and instead signs off on programmatic documents like “targeting” and “minimization” procedures. Unlike regular warrants, the individuals affected by the searches are never given notice, much less enabled to seek a remedy for misuse.  Yet, even under this limited (and we believe insufficient) judicial review, the FISC has repeatedly found deficiencies in the intelligence community’s procedures, and this most recent certification was no different.

Specifically, among the problems the FISC noticed were problems with the FBI’s backdoor search procedures. The court noted that in 2018, Congress directed the FBI to record every time it searched a database of communications collected under Section 702 for a term associated with a U.S. person, but that the Bureau was simply keeping a record of every time it ran such a search on all people. In addition, it was not making any record of why it was running these searches, meaning it could search for Americans’ communications without a lawful national security purpose. The court ordered the government to submit information, and also took the opportunity to appoint amici to counter the otherwise one-sided arguments by the government, a procedure given to the court as part of the 2015 USA Freedom Act (and which EFF had strongly advocated for).

As the FBI provided more information to the secret court, it became apparent just how flagrant the FBI’s disregard for the statute was. The court found no justification for FBI’s refusal to record queries of Americans’ identifiers, and that the agency was simply disobeying the will of Congress.

Even more disturbing was the FBI’s misuse of backdoor searches, which is when the FBI looks through people’s communications collected under Section 702 without a warrant and often for domestic law enforcement purposes. Since the beginning of Section 702, the FBI has avoided quantifying its use of backdoor searches, but we have known that its queries dwarfed other agencies. In the October 2018 FISC opinion, we get a window into just how disparate the number of FBI’s searches is. In 2017, the NSA, CIA and National Counterterrorism Center (NCTC) “collectively used approximately 7500 terms associated with U.S. persons to query content information acquired under Section 702.” Meanwhile, the FBI ran 3.1 million queries against a single database alone. Even the FISC itself did not get a full accounting of the FBI’s queries that year, or what percentage involved Americans’ identifiers, but the court noted that “given the FBI’s domestic focus it seems likely that a significant percentage of its queries involve U.S.-person query terms.”

The court went on to explain that the lax—and sometimes nonexistent—oversight of these backdoor searches generated significant misuse. Examples reported by the government included tens of thousands of “batch queries” in which the FBI searched identifiers en masse on the basis that one of them would return foreign intelligence information. The court described a hypothetical involving suspicion that an employee of a government contractor was selling information about classified technology, in which the FBI would search identifiers belonging to all 100 of the contractor’s employees.

As the court observed, these “compliance” issues demonstrated “fundamental misunderstandings” about the statutory and administrative limits on use of Section 702 information, which is supposed to be “reasonably likely to return foreign intelligence information.” Worse, because the FBI did not document its agents’ justifications for running these queries, “it appears entirely possible that further querying violations involving large numbers of U S.-person query terms have escaped the attention of overseers and have not been reported to the Court.”

With the benefit of input from its appointed amici, the FISC initially saw these violations for what they were: a massive violation of Americans’ Fourth Amendment rights. Unfortunately, the court let the FBI off with a relatively minor modification of its backdoor search query procedures, and made no provision for those impacted by these violations to ever be formally notified, so that they could seek their own remedies. Instead, going forward, FBI personnel must document when they use U.S. person identifiers to run backdoor searches—as required by Congress—and they must describe why these queries are likely to return foreign intelligence.  That’s it.

Even as to this requirement – which was already what the law required — there are several exceptions and loopholes.  This means that at least in some cases, the FBI can still trawl through massive databases of warrantlessly collected communications using Americans’ names, phone numbers, social security numbers and other information and then use the contents of the communications for investigations that have nothing to do with national security.

Secret Court Rulings Are Important, But Miss the Larger Problems With Section 702 Mass Surveillance

It is disturbing that in response to widespread unconstitutional abuses by the FBI, the courts charged with protecting people’s privacy and overseeing the government’s surveillance programs required FBI officials to just do more paperwork. The fact that such a remedy was seen as appropriate underscores how abstract ordinary people’s privacy—and the Fourth Amendment’s protections—have become for both FISC judges and the appeals judges above them on the Foreign Intelligence Court of Review (FISCR).

But the fact that judges view protecting people’s privacy rights through the abstract lens of procedures is also the fault of Congress and the executive branch, who continue to push the fiction that mass surveillance programs operating Section 702 can be squared with the Fourth Amendment. They cannot be.

First, Section 702 allows widespread collection (seizure) of people’s Internet activities and communications without a warrant, and the subsequent use of that information (search) for general criminal purposes as well as national security purposes. Such untargeted surveillance and accompanying privacy invasions are anathema to our constitutional right to privacy and resembles a secret general warrant to search anyone, at any time.

The Founders did not fight a revolution to gain the right to government agency protocols

Second, rather than judges deciding in specific cases whether the government has probable cause to justify its surveillance of particular people or groups, the FISC’s role under Section 702 is relegated to approving general procedures that the government says are designed to protect people’s privacy overall. Instead of serving as a neutral magistrate that protects individual privacy, the court is several steps removed from the actual people caught up in the government’s mass surveillance. This allows judges to then decide people’s rights in the abstract and without ever having to notify the people involved, much less provide them with a remedy for violations. This likely leads the FISC to be more likely to view procedures and paperwork as sufficient to safeguard people’s Fourth Amendment rights. It’s also why individual civil cases like our Jewel v. NSA case are so necessary.

As the Supreme Court stated in Riley v. California, “the Founders did not fight a revolution to gain the right to government agency protocols.” Yet such abstract agency protocols are precisely what the FISC endorses and applies here with regard to your constitutionally protected communications.

Third, because Section 702 allows the government to amass vast stores of people’s communications and explicitly authorizes the FBI to search it, it encourages the very privacy abuses the FISC’s 2018 opinion details. These Fourth Amendment violations are significant and problematic. But because the FISC is so far removed from overseeing the FBI’s access to the data, it does not consider the most basic protections required by the Constitution: requiring agents to get a warrant.

We hope that these latest revelations are a wake-up call for Congress to act and repeal Section 702 or, at minimum, to require the FBI to get individual warrants, approved by a court, before beginning their backdoor searches.  And while we believe current law allows our civil litigation, Congress can also remove government roadblocks by providing clear, unequivocal notice, as well as an individual remedy for those injured by any FBI or NSA or CIA violations of this right. We also hope that the FISC itself will object to merely being an administrative oversight body, and instead push for more stringent protections for people’s privacy, and pay more attention to the inherent constitutional problems of Section 702.

But no matter what, EFF will continue to push its legal challenges to the government’s mass surveillance program and will work to bring an end to unconstitutional mass surveillance.

Related Cases:

via EFF.org Updates https://ift.tt/US8QQS

October 11, 2019 at 07:40PM

FBI Violated Americans’ Privacy Rights in Data Search: Court

Some FBI electronic surveillance activities violated the constitutional privacy rights of Americans swept up in a controversial foreign intelligence program, a secretive surveillance court ruled. The ruling deals a rare rebuke to U.S. spying programs that have withstood legal challenge and review since they were dramatically expanded after the Sept. 11, 2001, attacks. The opinion resulted in the FBI agreeing to apply new procedures, including recording how the database is searched to detect future compliance issues, reports the Wall Street Journal. The intelligence community disclosed Tuesday that the Foreign Intelligence Surveillance Court last year found that FBI’s efforts to search data about Americans ensnared in a warrantless internet-surveillance program intended to target foreign suspects violated the law as well as the Constitution’s Fourth Amendment protections against unreasonable searches. The issue was made public by the government only after it lost an appeal of the judgment before another secret court.

The court said that in at least a handful of cases, the FBI had been improperly searching a database of raw intelligence for information on Americans—raising concerns about oversight of the program, which operates in near total secrecy. The October 2018 court ruling identified improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth. They involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign-intelligence information. The opinion was written by U.S. District Judge James Boasberg, who serves on the FISA Court.

via The Crime Report https://ift.tt/2myW3Gx

October 9, 2019 at 08:22AM

New Documents Reveal DHS Asserting Broad, Unconstitutional Authority to Search Travelers’ Phones and Laptops

EFF, ACLU Move for Summary Judgement to Block Warrantless Searches of Electronic Devices at Airports, U.S. Ports of Entry

BOSTON — The Electronic Frontier Foundation (EFF) and the ACLU today asked a federal court to rule without trial that the Department of Homeland Security violates the First and Fourth Amendments by searching travelers’ smartphones and laptops at airports and other U.S. ports of entry without a warrant.

The request for summary judgment comes after the groups obtained documents and deposition testimony revealing that U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement authorize border officials to search travelers’ phones and laptops for general law enforcement purposes, and consider requests from other government agencies when deciding whether to conduct such warrantless searches.

“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad,” said EFF Senior Staff Attorney Adam Schwartz. “ICE and CBP policies and practices allow unfettered, warrantless searches of travelers’ digital devices, and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones.”

The previously undisclosed government information was obtained as part of a lawsuit, Alasaad v. McAleenan, EFF, ACLU, and ACLU of Massachusetts filed in September 2017 on behalf of 11 travelers—10 U.S. citizens and one lawful permanent resident—whose smartphones and laptops were searched without warrants at U.S. ports of entry.

“This new evidence reveals that government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections. We’re asking the court to stop these unlawful searches and require the government to get a warrant.”

The government documents and testimony, portions of which were publicly filed in court today, reveal CBP and ICE are asserting broad and unconstitutional authority to search and seize travelers’ devices. The evidence includes ICE and CBP policies and practices that authorize border officers to conduct warrantless and suspicionless device searches for purposes beyond the enforcement of immigration and customs laws. Officials can search devices for general law enforcement purposes, such as enforcing bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations. Officers also consider requests from other government agencies to search devices. In addition, the agencies assert the authority to search electronic devices when the subject of interest is someone other than the traveler—such as when the traveler is a journalist or scholar with foreign sources who are of interest to the U.S. government, or even when the traveler is the business partner of someone under investigation. Both agencies further allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

The plaintiffs are asking the court to rule that the government must have a warrant based on probable cause before conducting searches of electronic devices, which contain highly detailed personal information about people’s lives. The plaintiffs, which include a limousine driver, a military veteran, journalists, students, an artist, a NASA engineer, and a business owner, are also requesting the court to hold that the government must have probable cause to confiscate a traveler’s device.

The district court previously rejected the government’s motion to dismiss the lawsuit.

The number of electronic device searches at the border has increased dramatically in the last few years. Last year, CBP conducted more than 33,000 border device searches, almost four times the number from just three years prior. CBP and ICE policies allow border officers to manually search anyone’s smartphone with no suspicion at all, and to conduct a forensic search with reasonable suspicion of wrongdoing. CBP also allows suspicionless device searches for a “national security concern.”

Below is a full list of the plaintiffs. Their individual stories can be found here:

  • Ghassan and Nadia Alasaad are a married couple who live in Massachusetts, where he is a limousine driver and she is a nursing student.
  • Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.
  • Sidd Bikkannavar is an engineer for NASA’s Jet Propulsion Laboratory in California.
  • Jeremy Dupin is a journalist living in Massachusetts.
  • Aaron Gach is an artist living in California.
  • Isma’il Kushkush is a journalist living in Virginia.
  • Diane Maye is a college professor and former captain in the U. S. Air Force living in Florida.
  • Zainab Merchant is a writer and a graduate student at Harvard.
  • Akram Shibly is a filmmaker from New York.
  • Matthew Wright is a computer programmer in Colorado.

    For the motion for summary judgment and statement of material facts:

    For more information about this case:

Senior Staff Attorney
ACLU of Massachusetts

via EFF.org Updates http://bit.ly/US8QQS

April 30, 2019 at 01:32PM

Court Blocks Warrantless Access to Real-Time Cell Phone Location Data

There’s heartening news for our location privacy out of Massachusetts this week. The Supreme Judicial Court, the state’s highest court, ruled that police access to real-time cell phone location data—whether it comes from a phone company or from technology like a cell site simulator—intrudes on a person’s reasonable expectation of privacy. Absent exigent circumstances, the court held, the police must get a warrant.

In Commonwealth of Massachusetts v. Almonor, police had a phone carrier “ping” the cell phone of a suspect in a murder case—surreptitiously accessing GPS functions and causing the phone to send its coordinates back to the phone carrier and the police. This real-time location data pinpointed Mr. Almonor’s phone to a location inside a private home. The state argued it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old. A trial court disagreed and the state appealed.

EFF filed an amicus brief in this case in partnership with the ACLU and the Massachusetts Association of Criminal Defense Lawyers. We asked the court to recognize, as the Supreme Court did in U.S. v Carpenter, that people have a constitutional right to privacy in their physical movements. We argued that, because people have their phones with them all the time, and because the location information produced by the phone can reveal our every move—where and with whom we live, socialize, visit, vacation, worship, and much more—the police must get a warrant to access this sensitive information.

The Massachusetts court held that “[m]anipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion” than accessing the historical location data at issue in Carpenter. It concluded that “by causing the defendant’s cell phone to reveal its real-time location, the Commonwealth intruded on the defendant’s reasonable expectation of privacy in the real-time location of his cell phone.” The court recognized both that cell phone use is ubiquitous in our society, and that a phone’s location is a “proxy” for its owner’s location. The court noted that “society’s expectation has been that law enforcement could not secretly and instantly identify a person’s real-time physical location at will,” and “[a]llowing law enforcement to immediately locate an individual whose whereabouts were previously unknown by compelling that individual’s cell phone to reveal its location contravenes that expectation.”

Much of the majority’s opinion focuses on the fact that, in this case, law enforcement directed the phone company to “manipulate” the defendant’s phone, causing it to send its location to the phone company. In other words, the phone company wouldn’t have collected the data on its own as part of its normal business practices. But two judges, in a concurring opinion, expressed concern that this focus on law enforcement action—rather than on the collection of location data alone—would result in an exception for searches of real-time location data that providers collect automatically. The concurring justices would hold that the Massachusetts constitution “protects us from pings not because of the right to keep the government from interfering with our cellular telephones, but because of the right to keep the government from finding us.”

This is very concerning because, as the concurring justices note, the majority’s focus on government action here could allow the police to “side-step the constitutional protection” by just asking for the data the cell service provider collects on its own. Although the majority denied that would happen, it remains to be seen, both how officers will implement searches after this opinion and how lower courts will apply constitutional law to those searches. We’ve seen the Commonwealth interpret this court’s prior decisions on location tracking very narrowly in the past.

Although the defendant raised both federal and state constitutional claims in Almonor, the court based its decision solely on Article 14 of the Massachusetts Declaration of Rights, which was drafted before—and served as one of the models for—our federal Bill of Rights. Article 14, one of the cornerstones of the Massachusetts Constitution, is the state’s equivalent to the Fourth Amendment. As the court notes, it “does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States.”

Courts around the country are now being asked to address the scope of the Carpenter ruling. Almonor in Massachusetts and a case called State of Maine v. O’Donnell, in Maine are among the first to deal directly with how Carpenter should be applied when police track and locate people in real-time. We’re heartened that the Massachusetts court took these issues seriously and made clear that the police must get a warrant, whether they access historical cell phone location data or whether they cause a phone to send its real-time location. We’re still waiting for the Maine court’s opinion in O’Donnell, and we’re actively tracking other cases addressing these issues across the country.

via EFF.org Updates http://bit.ly/US8QQS

April 24, 2019 at 04:33PM

Federal Agent: Using A Taped Box To Send Stuff Overnight Via FedEx Is Suspicious Behavior

Here’s how we’re fighting the War on Drugs. Lots of stuff going on, but not much seems to be happening in terms of actually, you know, keeping drugs from ending up in buyers’ hands. The byproduct of the problem — the cash — is all anyone seems interested in.

As Brad Heath points out in his tweets referencing this in rem complaint, federal agents camp out at major air traffic hubs looking for nothing but cash. As we’ve covered here earlier, the DEA is actually paying TSA agents to search for cash and alert officers if any amount worth seizing rolls through checkpoints.

The same thing is happening in FedEx hubs. In this case, officers from the DHS, Indiana State Police, Indiana Metro PD all combined to stop some cash from traversing the country from Ohio to Arizona.

The filing lets us know what the government finds suspicious in terms of packaging and sending stuff around the country: everything. If you like using FedEx and their new boxes, but apply a bit too much tape, you might be a drug dealer. From the complaint [PDF]:

Based on information and experience, task force officers can easily identify suspicious packages with indicators, such as newly-bought boxes bought from the shipping company, overnight shipping, and excessive taping at the seams of the box.

Boxes, tape, and overnight shipping are literally what FedEx is known for. Yes, these officers uncovered a lot of suspicious stuff once they were IN the boxes — packages of cash wrapped in fabric softener sheets — but they needed something to justify the search of the boxes in the first place. I’m sorry, but “information and experience” asserting little more than what hundreds of FedEx customers do every day just doesn’t cut it.

Sure, they ran a dog around the boxes and it alerted, but cash will probably prompt alerts anyway, given how much of it has circulated close to drugs or has been used as a drug delivery device. (A “blind” drug sniff is mentioned later, suggesting the dog and boxes were tossed into the room without a handler. It’s a nice control but doesn’t mean much when there’s already been an alert with the handler present. If the dog had “failed” to detect drugs without the handler present, this simply would have been omitted from the warrant.)

The only other link to suspicion was the fact that the package was being shipped to Arizona from Ohio, but both the “To” and “From” labels contained the same Arizona address. God forbid you ship anything to or from Arizona — not if any drug interdiction teams are in the area:

Parcels 6920 and 7068 drew attention for other reasons: they were heavily taped and being shipped to Arizona, known by law enforcement as a source for illegal controlled substances…

This is same assertion made about several states and major cities. Everything has a drug nexus if you’re in the business of drug warring. The thing is, there’s a lot of innocent activity going on in these same cities and states, but it all looks suspicious through a drug interdiction lens.

In total, there’s a $108,000 being forfeited as suspected drug proceeds. The final nail in the evidentiary coffin is the background check on the package’s recipient. Not sure how it all adds up to drug dealing, but I guess all crimes are gateway crimes or whatever.

Richard Reyes has a criminal history for theft, assault causing bodily injury, and criminal mischief. In 2003, Richard Reyes was found guilty of one count of theft in case number M-0111051 (Tarrant Criminal County Court, Texas). In 2003, Richard Reyes was also found guilty of one count of assault causing bodily injury and one count of criminal mischief in case numbers 0610831 and 0610832 (Travis County Court, Texas).

I’m not saying Reyes isn’t a drug dealer. I’m saying this is pretty thin connective tissue if someone’s trying to prove the money came from the sale of drugs. But the evidentiary bar is so low law enforcement is probably going to get to keep this cash.

Then there’s the presence of a DHS agent. This allows Indiana law enforcement to profit from suspected criminal activity occurring outside of its jurisdiction. The package was sent from Ohio to Arizona but intercepted in Indianapolis. Dragging a federal agent along keeps the money from going into the coffers of coppers in the two states where drug dealing may actually be occurring. Handy that.

This is just one of dozens of similar litigation filed every year in the federal court system to take cash from people the government has no interest in arresting or charging. Somehow, seizing cash is supposed to cripple drug cartels. Seeing as civil forfeiture has experienced no serious income dips over the past 30 years, it’s safe to say this process is doing nothing but enriching government agencies who prefer cash to preventing crime.

Federal Agent: Using A Taped Box To Send Stuff Overnight Via FedEx Is Suspicious Behavior

via Above the Law https://abovethelaw.com

April 26, 2019 at 11:22AM

Highest Court in Indiana Set to Decide If You Can Be Forced to Unlock Your Phone

When EFF preaches about the benefits of using device encryption on smartphones, one of the most frequent questions we get is whether the police can force you to turn over your passcode or unlock the device. The answer should be no. The Fifth Amendment states that no one can be forced to be “a witness against himself,” and we argue that the constitutional protection applies to forced decryption. Last week, we filed a brief  making that case to the Indiana Supreme Court.  

The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seo’s alleged rapist, identified by the court as “D.S.” (Courts often refer to minors using their initials.) Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking. The state not only sought a search warrant to go through Seo’s phone, but a court order to force her to unlock it. Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed.

When the Indiana Supreme Court agreed to get involved, it took the somewhat rare step of inviting amicus briefs. EFF got involved because, as we say in our brief filed along with the ACLU and the ACLU of Indiana, the issue in Seo is “no technicality; it is a fundamental protection of human dignity, agency, and integrity that the Framers enshrined in the Fifth Amendment.”

In recent years, courts have struggled with how to apply the Fifth Amendment’s privilege against self-incrimination to compelled decryption of encrypted devices.  It’s well settled that the privilege protects against “testimonial” communications, which a 1957 Supreme Court case describes as those that require a person to disclose “the contents of his own mind.” It’s also clear that nonverbal acts can be testimonial, such as being forced to respond truthfully to police questioning with a “nod or headshake,” or to produce a gun that police believe was used in a crime. Even responding to a subpoena for documents can be a testimonial “act of production” because it reveals information about the existence and authenticity of the documents, and the subject’s possession of them. 

So what about being forced to tell police your password, or to unlock an iPhone?

Our argument to the Indiana Supreme Court is that compelling Seo to enter her memorized passcode would be inherently testimonial because it reveals the contents of her mind. Obviously, if she were forced to verbally tell a prosecutor her password, it would be a testimonial communication.

By extension, the act of forced unlocking is also testimonial. First, it would require a modern form of written testimony, the entry of the passcode itself. Second, it would rely on Seo’s mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control. The lower appellate court in Seo added an intriguing third reason:

In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. . . . Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

Because entering a passcode is testimonial, that should be the end of it, and no one should be ordered to decrypt their device, at least absent a grant of immunity that satisfies the Fifth Amendment. 

But there is an additional wrinkle. In a case from 1976 called Fisher v. United States, the Supreme Court recognized an exception to the Fifth Amendment privilege for testimonial acts of production. The case involved responding to a subpoena for tax documents, and the government could show to a “foregone conclusion” that it already knew all of the information it would otherwise learn from the production—i.e. the existence, authenticity, and possession of the responsive documents.

Although the Supreme Court has never again relied on this foregone conclusion exception, the government has built it into a full-blowndoctrine. State and federal prosecutors have invoked it in nearly every forced decryption case to date. In Seo, the State argued that all that compelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it “has proven that the phone belongs to her.”

As we argue in our amicus brief, this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption. The Fifth Amendment is intended to avoid putting people to a “cruel trilemma”: self-incriminate, lie about knowing the password, or risk being held in contempt for refusing to cooperate.

Thankfully that’s not the law. Instead, it’s clear from Fisher and later Supreme Court cases that the foregone conclusion exception was intended to be very narrow. It has only been applied in a case involving business records, and only where the testimonial communication at issue was the act of providing specified documents. The Court has made clear there is no foregone conclusion exception where a person is required to use the contents of their mind, even in responding to a more open-ended document subpoena. So there should be no exception to the Fifth Amendment when the government compels disclosure or use of a passcode to unlock and decrypt a digital device. 

The Indiana Supreme Court is set to hold argument in Seo on April 18. We’ll be watching for its ruling.

via EFF.org Updates http://bit.ly/US8QQS

February 4, 2019 at 04:36PM