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from the time-to-update-Carpenter dept

Never mind the Supreme Court. Never mind the case law finding warrantless phone tracking not quite constitutional. Never mind the self-imposed restrictions enacted by federal law enforcement agencies that place warrant requirements on real-time location tracking or the federal court decisions codifying these voluntary efforts.

Forget all of that. North Carolina is going to go its own way, following the mandate laid out by 70s coke icons Fleetwood Mac back in the day when getting a wiretap warrant meant someone actually had to do something beyond click ACCEPT on the law enforcement end user license agreement.

Police could track peoples cell phones in real time without a warrant under a bill that passed a state House committee Wednesday.

The bill is intended to help law enforcement more quickly to find kidnapping victims or runaway children.

Ah. THE CHILDREN. The non-voters who always seem to play a part in government expansions of power. Too young to voice their opinion but young enough to be exploited by adults for their own ends. You know, adults like this child exploitation expert:

This just gives the SBI another tool in the toolbox, said Republican Rep. Dudley Greene, the retired sheriff of McDowell County who is leading the push for the bill. But its not just a tool. Its an emergency tool, in very limited circumstances.

SBI is the State Bureau of Investigation. The ex-cop points to a single state agency, insinuating the law is limited to a single law enforcement entity when it actually isnt. And if you think this will be limited to only the most serious of crimes, well, then you probably helped Rep. Greene get elected. Mission creep is a thing. So is the natural tendency to abuse power that demands we, the governed, throw our voting wrenches into the government machinery every couple of years.

As both proponents and opponents note, the bill would not allow for warrantless wiretaps. What it would do is allow cops to track cell phones in real time, as well as obtain information about cell phones their targets interact with.

The latter is usually covered by pen register orders, which require less probable cause than warrants because the Third Party Doctrine leaves information voluntarily shared with third parties (read: telcos, cell service providers) unprotected. But location data is something else entirely, seeing as it gives the government the power these legislators want to codify: the ability to track anyone at any time in real time without a warrant.

The states court system already appears to be completely wrong about this:

As for cell phone tracking, North Carolinas appellate courts have already signed off on police getting peoples historical location data from phone companies without a warrant. But real-time warrantless tracking has not been included.

The Supreme Courts Carpenter decision explicitly forbade long-term tracking of individuals via historical cell site location data. And its reading of the Third Party Doctrine and the Fourth Amendment suggested real-time acquisition of location data might run afoul of the Fourth Amendment if this tracking went on for long enough.

According to this reporting, the states courts have decided the Carpenter decision doesnt apply to North Carolina law enforcement. And it has yet to arrive at a decision one way or the other about real-time tracking. An absence of contrary case law is a permission slip for law enforcement. Hell, even precedential decisions are rarely enough to deter law enforcement from engaging in rights violations. This law, which has sailed through the state House with almost zero opposition, encourages further abuses of tech that has yet to be fully addressed by courts covering this jurisdiction.

And the mission creep has already begun. The state rep quoted above claimed the law would help cops track down the worst of the worst criminals: those targeting children for nefarious means. But the revamped law which at least now requires law enforcement to make a warrant sales pitch to a judge within 48 hours of engaging in real-time location tracking has already been rewritten to ensure cops can use it whenever, wherever. Its not just pedophiles and kidnappers. Its the proverbial fast food thief (NOT A HYPOTHETICAL!) that can expect to be tracked in real time by cops with plenty of tech but no probable and no warrants.

It would allow a judge to find probable cause or reasonable suspicion that the suspect had committed any felony, or more minor crimes like a class 1 or A1 misdemeanor.

So, if passed intact, this law would allow cops to engage in real-time tracking of anyone suspected of almost any crime. Within 48 hours, they might need to make a probable cause showing in front of a judge. But even then, a judge could decide the pervasive surveillance is justified by assertions made after the fact by cops with a two-day head start. And if an arrest is effected before the clock runs out on the warrantless surveillance, theres no need to ask the court for a second opinion on this codified interpretation of the Third Party Doctrine. No harm (that will be recognized by a NC court), no foul.

Hopefully this bill will die the death it deserves. But if legislators and the states courts have deluded themselves into thinking location info wants to be free (of warrant requirements), it seems unlikely this proposal will get kicked to the curb by the governor. After all, the rest of the government thinks its a good idea. And they know whats best for everybody, even if the everybody theyre supposed to represent disagrees with them.

Filed Under: 4th amendment, cell site location info, north carolina, real time tracking, warrantless surveillance

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North Carolina Legislature Pushing Bill That Would Allow Cops To ... - Techdirt

Threat to our freedom

Buddy Bankhead, from Carthage, expressed truthfully what needed to be said (letter, April 16). The biggest threat to freedom has always been the federal government. Look at what is happening right now!

Do you even remember when we had law and order? Do you remember what it was like to have secure borders? Criminals were held accountable and children were excelling in education?

Trump does not want to make our country a socialist and Marxist third-world country. Trump is fighting for us every day, every hour. If he wasnt, we would be under attack ourselves! Dont talk about socialism. Talk about our loss of freedom.

Dont give immigrants the right to vote. Dont give immigrants everything free when you dont take care of our veterans and homeless. What really has Biden done for you?

People in foreign countries are laughing at Biden. They did not laugh when Trump was president.

When you dont have capitalism, free markets, liberty, freedom, fundamental rights protected, bad things will happen.

Our Founding Fathers put in the Fourth Amendment to protect us from unwarranted searches of our private homes, but look at the illegal raid on Trumps home.

God bless America. Fellow Americans, stand and fight! Freedom is not free!

June Strohsahl, Longview

Continue reading here:
Letter: Threat to our freedom | Opinion | news-journal.com - Longview News-Journal

Waltham Mayor Jeannette A. McCarthy and Waltham Police Chief Kevin OConnell did not respond to requests for comment, and a spokesperson for the police department declined to comment. Neither the Department for Children and Families nor SEIU Local 509, the union for social workers, could immediately be reached for comment.

Last July, Perkins brought the couples 3-month-old son to the emergency room for a fever, according to the complaint. While the baby was there, hospital staff discovered an older, healed fracture on one of his ribs and notified DCF, the complaint said. Unknown to the family, DCF opened a child abuse investigation.

Around 1 a.m. on July 16, DCF workers and Waltham police appeared at the familys front step without a warrant, the lawsuit alleges, and threatened to break down the door if they didnt turn over the baby and his 3-year-old brother.

The children were taken to a foster home, and Sabey and Perkins were not granted full custody until four months later when they were cleared of any wrongdoing, the complaint said.

Sabey said his family has endured lingering trauma as a result of the separation; routine visits to the doctor have become a source of gripping anxiety.

It was incredibly stressful, incredibly traumatic, and now its kind of hard to tell what the long-term effects are on our psychology and how were able to move on, he said.

Joshua Thompson, the parents attorney, said that while defense lawyers may argue that police and DCF workers believed there was an imminent threat to the childrens safety, there was more than enough time to obtain a warrant in the days after DCF learned of the rib injury including the many hours that the couple remained in the hospital.

An imminent threat, in typical Fourth Amendment parlance, means someone had a knife to someone elses throat and you could see it through the window, Thompson said. It doesnt mean that [DCF] discovered a rib injury and then three days later broke into the Sabeys home at one in the morning.

The seizure of the children, which was first reported by the Washington Post in December, sparked public outrage. Neither Sabey nor Perkins have ever been charged with any civil or criminal offense related to their parenting, according to the lawsuit.

The states legal aid agency and public defenders office, the Committee for Public Counsel Services is among those pushing for more oversight. Meanwhile, some legislators hope to change state law so that social workers can only take temporary custody of children without a court order in cases where theres no time to go before a judge.

The allegations made in this lawsuit echo what we hear from our clients across the state every single day: DCF is frequently overzealous in separating families, and removing children from their homes after hours and without court oversight has long-term, irreversible effects on children and their parents, Mike Dsida, who leads the committees Children and Family Law Division, said in a statement.

Dsida said the lawsuit outlines a fact pattern that is all too common. Families in Massachusetts deserve better, and if this suit leads to change, it would be a welcome step in the right direction.

Josh Gupta-Kagan, professor at Columbia Law School, identified three ways an organization can push DCF toward policy change. The first would be to sue the agency itself for a pattern or practice of civil rights violations, he explained. The second would be to seek injunctive relief in a lawsuit, which sets a precedent for how an agency is allowed to operate in similar cases moving forward. Finally, in the event that the case is appealed up to the US Court of Appeals or the US Supreme Court, there is a likelihood that the federal court would set a legal precedent that applies not only to child welfare practices in Massachusetts, but more broadly across the country.

Gupta-Kagan also noted that lawsuits against individual employees, like the one filed by the Sabey family, still have the potential if successful to spur structural change within an agency.

By allowing one officer to be sued in an individual capacity, its supposed to create a deterrent effect for someone else in the future, he said. Then the agency is supposed to be thinking, Oh wait, if I screw up again and violate a familys rights, then [our employees] could be held liable.

Sabey said hes trying to raise awareness about the issue, going as far as writing a book about his familys experience to spread the word. One of the greatest frustrations about it all, Sabey said, is the number of hurdles preventing families from taking legal action against agencies responsible for systemic problems.

The individuals were just really just cogs in the system thats forced to do what it does by its own policies and perceived responsibilities, he said. And that system just churns out injustice after injustice.

Ivy Scott can be reached at ivy.scott@globe.com. Follow her on Twitter @itsivyscott.

See original here:
Parents file lawsuit alleging civil rights violations after children were ... - The Boston Globe

by April Corbin Girnus, Nevada Current

Untold numbers of sexual assault cases nationwide have been solved after DNA evidence linked perpetrators to their crimes, but victims of sexual assault should not have to worry that their own DNA will be used against them.

Senate Bill 321 would protect victims of sexual assault from having the DNA they submit as part of a rape kit used to prosecute them for crimes. Such samples could only be used to prosecute the perpetrator of their sexual assault. The bill passed the Nevada State Senate unanimously on April 25 and was heard by the Assembly Judiciary committee Tuesday.

State Sen. Lisa Krasner, R-Reno, brought forward the bill, and 19 lawmakers across both chambers and parties have signed on as primary or co-sponsors.

Krasner pointed to a high profile incident in California as a reason why Nevada should be proactive on the issue of protecting victims of sexual assault.

San Franciscos district attorney last year revealed the citys police crime lab used DNA collected during a rape kit in 2016 to tie a sexual assault victim to a burglary in 2021. The citys police chief called it a horrendous mistake and vowed it would not happen again, but the incident sparked broad calls for states to strengthen safeguards against such use.

Sexual assault is one of the most underreported crimes. Fear that their DNA or other forensic evidence collected during a rape kit might be used against them in unrelated cases is believed to be contributing to underreporting. Other reasons why victims dont come forward include fear of not being believed, fear of retribution by their assailant, or feeling like justice is futile. (Just under 20% of reported rapes in Nevada in 2022 resulted in an arrest, according to the Department of Public Safety.)

We have to do better, said Krasner. Collecting and properly processing sexual assault crime evidence and rape kits is vital to that effort. We must do everything we can to help victims feel safe in coming forward.

In 2019, she added, citing FBI data, Nevada had one of the highest rates of reported rape per capita. Since then, the states rate of reported rapes per capita has seen a small but steady decline.

We have to wonder if that just means that victim survivors are choosing not to come forward and report the rape to law enforcement, she said.

Nevada already has a Sexual Assault Survivors Bill of Rights, which specifies that forensic evidence from a sexual assault survivor cannot be used to prosecute that survivor for any misdemeanor or offense related to a controlled substance. SB321 would expand that protection to any crime.

No Assembly Judiciary committee member expressed objections to the proposed bill.

Besides the humanity and sensitivity of the issue, its also a Fourth Amendment issue, said Democratic Assemblywoman Britney Miller, referring to the right to privacy established in the U.S. Constitution. Even if you cant extend yourself to humanity and sensitivity, it is a strong constitutional issue.

SB321 is being supported by a broad coalition that includes the Nevada District Attorneys Association, the public defenders offices in Clark and Washoe counties, and several law enforcement groups, including the Las Vegas Metropolitan Police Department.

LVMPD lobbyist Beth Schmidt said during her testimony in support that Metro does not run sexual assault victim DNA through the national DNA database known as CODIS, or the Combined DNA Index System.

We appreciate codifying this into statute, she added.

Steve Gresko, the administrator of CODIS for Nevada and a supervising criminalist at the Washoe County Sheriffs Office, also testified that CODIS does not currently include victim DNA.

Gresko said law enforcement agencies will occasionally turn to forensic evidence collected through a rape kit if the victim of a sexual assault later becomes a missing person and no other DNA reference sample can be found. In those cases, the purpose is not to prosecute but only to identify the person.

Read more:
Nevada moves to strengthen protections around use of sexual ... - This Is Reno

Warrantless searches of US residents' communications by the FBI dropped sharply last year from about 3.4 million in 2021 to 119,383 in 2022, according to Uncle Sam.

But that is still likely tens of thousands more people than should have been caught up in the FBI's domestic surveillance efforts, according to advocates for reform of Section 702 the legislative instrument that allows warrantless snooping.

The numbers mentioned above were revealed in the annual Office of the Director of National Intelligence report, released at the end of last week. The report came just after Congress held a subcommittee hearing on Section 702 surveillance authority.

Section 702 is a provision of the Foreign Intelligence Surveillance Act (FISA) and gives US government snoops the authority to surveil Americans' electronic communications without a warrant. The power is set to expire at the end of the year unless Congress renews it.

While law enforcement has long argued [PDF] that Section 702 saves lives and is an indispensable tool when it comes to fighting terrorism, data privacy and civil liberties groups maintain it violates the Fourth Amendment and needs a major overhaul to prevent further unconstitutional surveillance.

The Office of the Director of National Intelligence report [PDF] gives several reasons for the decline in Section 702 searches related to US citizens and residents. For one, the FBI changed the methodology used to calculate the number of Section 702 searches, and says previous years' reports used duplicative counting methods.

A better estimate of 2021's warrantless communications searches puts the number closer to 3 million, not 3.4 million, for example, according to the government report.

This is like doing a touchdown dance because you threw an incomplete pass instead of an interception

Even at just 3 million, the 2021 number is a massive spike versus 2020's approximately 853,000 searches, and the report attributes this to "a number of large batch jobs" in the first half of 2021 related to one particular investigation into "attempts by foreign cyber actors to compromise US critical infrastructure."

"These queries, which included approximately 1.9 million queries related to potential victims including US persons accounted for the vast majority of the increase in US person queries conducted by FBI over the prior year," it notes.

Additionally, over the past year the FBI implemented new processes around Section 702 searches, including mandatory query training and "enhanced approval requirements for certain 'sensitive' queries, such as those involving domestic public officials or members of the news media."

It also now requires FBI agents to "opt-in" if they wish to run a search against Section 702-acquired data, instead of having queries run against this data by default.

All of these measures contributed to the drop in warrantless searches, according to the report.

Proponents of Section 702 reform take a slightly different view, unsurprisingly.

Around 119,000 queries represents an "undeniably a big drop" from previous years' searches, said Jake Laperruque, deputy director of Center for Democracy and Technology's Security and Surveillance Project.

"But to me, this is like doing a touchdown dance because you threw an incomplete pass instead of an interception," he told The Register.

"It's still a very bad thing in desperate need of reform. We're still talking about hundreds of thousands of searches for Americans' private wireless data."

For comparison, Laperruque pointed to the 2,245 wiretaps authorized by state and federal judges in 2021 and the application process and judicial review that law enforcement must go through to obtain these surveillance tools, compared to the "backdoor search loophole" in Section 702.

"The fact that this was being framed as like a major decline just shows how much of a bizarre world we are in with this provision of FISA," he said.

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Feds rethink warrantless search stats and oh look, a huge drop in numbers - The Register