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The Fourth Amendment prohibits unreasonable searches and seizures. On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Heres a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.

In the early morning hours of July 15, 2014, New Mexico state police descended on an apartment complex in Albuquerque. Officers Janice Madrid and Richard Williamson approached a Toyota FJ Cruiser that was backed into a parking spot with its engine running. The officers tried to speak to the driver, Roxanne Torres. Torres, who says she thought she was the victim of an attempted car-jacking, drove off.

Madrid and Williamson, who say they feared for their safety, fired their weapons. Torres was hit twice but did not stop. She drove to a nearby parking lot, swapped her severely damaged FJ Cruiser for an unattended Kia Soul with its motor running, and drove 75 miles to Grants, New Mexico or, as the briefing helpfully informs the justices, approximately the distance from this Court to Harpers Ferry, West Virginia. Torres promptly checked into the hospital, where police arrested her the next day.

Two years later, Torres filed this case, a civil rights lawsuit against Madrid and Williamson, alleging that the shooting was an unreasonable Fourth Amendment seizure. The district court granted summary judgment in favor of the officers, ruling that the shooting did not constitute a seizure at all. The U.S. Court of Appeals for the 10th Circuit agreed. Thats the ruling the Supreme Court will review in this case, with significant implications for the admissibility of evidence against criminal defendants, as well as the viability of excessive-force prosecutions and lawsuits against police.

The basic test for identifying a Fourth Amendment seizure comes from Justice Potter Stewarts opinion in United States v. Mendenhall: [A] person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

If that were the only test, Torres would have won already. Nothing says you are not free to leave like two police officers with guns drawn, firing bullets into your car. But there is a catch. In California v. Hodari D., the Supreme Court offered an addendum to the seizure definition for situations when you are not free to leave but you leave anyway.

Hodari D. held (7-2) that a person being chased by an officer (and so not free to leave) is not actually seized until caught. The following language from Justice Antonin Scalias majority opinion is critical to this case:

The word seizure readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (She seized the purse-snatcher, but he broke out of her grasp.) It does not remotely apply, however, to the prospect of a policeman yelling Stop, in the name of the law! at a fleeing form that continues to flee. That is no seizure.

Hodari D. makes clear that a person fleeing from a show of authority is not seized. But it also suggests a different answer once there is physical contact.

Starting with the language in Hodari D., Torres and the eight amici supporting her in the case present a blizzard of overlapping textual, historical and policy arguments for concluding that the shooting in this case was a seizure. The U.S. solicitor general, arguing in support of Torres, writes that this conclusion is required by the plain text of the Fourth Amendment, follows from this Courts precedent defining a seizure, and is consistent with the common law.

The officers response centers on the textual point. From their perspective, the key to the case is that to be seized means to be stopped, and Torres kept going. Offering the justices a bright-line rule, the officers contend: The citizens freedom of movement must actually be physically restrained or controlled for a seizure to occur. After all, if Torres was seized in Albuquerque, how did she travel 75 miles to a hospital in Grants?

Torres and her amici have an answer. Torres was seized the moment she was shot. She was seized again when police arrested her the next day. In between those two events, she was not seized. Torres can concede that there was no continuous seizure because she only needs one moment. If the initial, momentary seizure was unreasonable, the officers violated her Fourth Amendment rights.

Torres argument is stronger than most momentary-physical-contact-seizure claims for two reasons: She was seriously injured by the bullets, and she immediately felt their effects. One can imagine weaker cases in which an application of physical force causes only fleeting or unnoticed impacts, like a brief grasp of the wrist or a bullet stopped by a lucky belt buckle. But in this case, the officers fired two bullets into Torres torso. Torres testified at her deposition that immediately after she was shot, one of her arms became temporarily paralyzed. (Curiously, the lower-court opinions overlook this aspect of Torres testimony which must be credited at the summary-judgment stage.) Quoting another Supreme Court case, Graham v. Connor, the officers acknowledge that a Fourth Amendment seizure occurs whenever government actors have in some way restrained the liberty of a citizen. They will have to convince the justices that being shot twice at close range resulting in partial paralysis is not a restraint on ones liberty.

On precedent and history, the officers largely play defense. As already noted, the courts clearest precedent, Hodari D., suggests that the actual application of physical force with an intent to stop someone, even if unsuccessful, constitutes a seizure. As for Framing-era history, most of the briefing agrees that at the time the Fourth Amendment was adopted, any physical contact during an attempt to restrain a suspect constituted a common law arrest, the quintessential seizure. But whether Framing-era citizens would have thought that Fourth Amendment seizure rights tracked the varying common law arrest doctrines, and how much that should matter given the vast differences in Framing-era policing, remain perhaps unresolvable questions.

There are two things to look for in the upcoming argument.

(1) How broadly is the court inclined to rule?

The court could rule for Torres here, while still leaving room for a different outcome in cases with less substantial physical contact. The District of Columbia Court of Appeals, for example, found no seizure in a case in which a suspect wriggled out of his coat to escape an officers grasp. In those circumstances, despite the physical contact, the suspect (as opposed to the suspects jacket) arguably was never seized. And that case, unlike this one, raises a potential conflict, hinted at by some of the amici, between the constitutional text and the common law of arrest. The justices may want to avoid confronting that conflict by ruling narrowly in this case.

A ruling for the officers, on the other hand, might leave open the possibility that some degree of actual impairment handcuffs placed on a suspect who then breaks away, or a blow that measurably slows the suspect can create a seizure even if the suspect is not immediately stopped.

(2) Is the court thinking about searches too?

Searches and seizures are strongly linked in the Fourth Amendment, separated by only a conjunction. This suggests that search and seizure cases should share a similar interpretive methodology. Yet currently, the two doctrines are nothing alike. Search cases, powered by the reasonable expectation of privacy test, are a mixture of armchair philosophy, speculation about societal norms and strained allusions to dystopian fiction. By contrast, seizure cases appear to hinge on straightforward textual interpretation. The court determines whether a seizure occurred by applying the commonly understood meaning of a relatively clear term. Given the plethora of search cases queuing up on the horizon, and the justices increasing frustration with their convoluted search doctrine, this striking contrast may be the most significant part of the case. If the justices enjoy the analytical clarity of textual seizure analysis, they may begin to contemplate the benefits of a similar methodological approach to the term search.

Posted in Torres v. Madrid, Featured, Merits Cases

Recommended Citation: Jeffrey Bellin, Case preview: When is a fleeing suspect seized?, SCOTUSblog (Oct. 13, 2020, 9:00 AM), https://www.scotusblog.com/2020/10/case-preview-when-is-a-fleeing-suspect-seized/

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Case preview: When is a fleeing suspect seized? - SCOTUSblog

The EU Commission has published a fourth amendment to its 19 March 2020 guidance document on state aid in reaction to the COVID-19 outbreak (see our blog post).

The Temporary Framework was previously amended on 3 April 2020 (see our blog post), on 8 May 2020 (see our blog post) and on 29 June 2020 (see our blog post).

The fourth amendment extends the availability of all the measures set out in the Temporary Framework. Furthermore, it introduces an extension of the temporary removal of all countries from the list of marketable risk" countries under the Short-term export-credit insurance Communication (STEC). In addition, it modifies recapitalisation aid rules for state-owned companies and introduces a new instrument allowing governments to cover part of companies' fixed costs during the crisis.

Extension of Temporary Framework measures

The exceptional support measures (apart from recapitalisation measures) permitted by the Temporary Framework were initially meant to end by 31 December 2020. The Commission has now adopted a six-month extension until 30 June 2021 for all support measures covered by the Temporary Framework, except for the recapitalisation measures, which are prolonged until 30 September 2021.

This is intended to ensure that national support measures effectively help affected companies. To ensure legal certainty, the Commission will decide before 30 June 2021 whether the Temporary Framework needs to be further extended.

Extension of temporary removal of all countries from the list of marketable risk countries under the STEC

As a consequence of the COVID-19 outbreak, the Commission found in March 2020 that there is a lack of sufficient private insurance capacity for short-term export-credits in general and considered all commercial and political risks associated with exports to the countries listed in the Annex to STEC as temporarily non-marketable until 31 December 2020.

Taking into account the outcome of a public consultation, as well as the overall signs of continuing disruptive impact of COVID-19 on the economy of the EU as a whole, the fourth amendment to the Temporary Framework now provides for an extension until 30 June 2021 of this temporary removal of all countries from the list of marketable risk" countries under the STEC. This will allow to further make public short-term export-credit insurance available in light of the current crisis linked to the coronavirus outbreak.

The STEC is in force since 2013 and provides that trade within 27 EU Member States and nine OECD countries listed in its Annex, with a maximum risk period of up to two years, entails marketable risks and should, in principle, not be insured by the State or State supported insurers.

Governments may now cover part of companies' fixed costs during the crisis

Many companies are temporarily facing lower demand and so cannot cover all of their fixed costs. In an attempt to provide an efficient solution that does not require those companies to downsize and incur significant restructuring costs, the Commission now allows governments to contribute to part of their fixed costs on a temporary basis. To be eligible, companies must show that their turnover declined by at least 30% as a result of COVID-19. The maximum amount governments may contributed to a companys fixed costs is 3 million.

The Commission hopes that this may avoid reduction of the companies capital, maintain their business activity and ensure they have a strong base from which to recover post-crisis.

Further option for Member States to exit equity and/or hybrid capital contributions

The Temporary Frameworks recapitalisation measures allow Member States to provide aid in the form of equity and/or hybrid capital instruments to companies facing financial difficulties due to the COVID-19 outbreak.

Until now, a Member State has been able to exit a recapitalisation measure either through:

In addition, as some companies receiving COVID-19 aid were already owned entirely or partially by the relevant Member State, the Commission has recognised that public consultation is not always possible. The fourth amendment to the Temporary Framework therefore introduces a new possibility for Member States to redeem their recapitalisation, which can be used two years after the capital injection has taken place.

If the Member State is the only existing shareholder, there will no longer need to be a competitive sale, and instead an independent expert can confirm the sale price as being in line with market conditions. Here, the Commission introduces a legal fiction: if the independent valuation establishes a positive market value, the Member State is automatically considered to have redeemed the COVID-19 recapitalisation, even if the beneficiary remains in state ownership (i.e. the state did not actually sell its shares). For recapitalisation measures that exceed 250 million, the Member State will have to submit the independent valuation to the Commission.

If there are private shareholders in addition to the Member State, this legal fiction applies only to the Member States stake that corresponds to its pre-COVID shareholding. For the Member States shareholding over and above the pre-COVID-19 level, the competitive sale process continues to be applicable and the Member State will not have priority rights.

An example used in the fourth amendment to describe these new exit rules is explained with the following table:

Simplified example: Member State is one of several pre-existing shareholders in Company A

Time

Total Company A shares

Member States shareholding

Other investors shareholding

Pre-COVID-19

100

50% (= 50 shares)

50% (= 50 shares)

Recapitalisation measure: Member State buys additional 400 shares in Company A

Post-COVID-19

500

90% (= 450 shares)

10% (= 50 shares)

Two years after recapitalisation measure: Member State wants to exit

Equity class 1:

The Member State may redeem the part of the recapitalisation that it would need to retain in order to restore its pre-COVID-19 shareholding (i.e. 50%) via an independent valuation.

This would correspond to max. 250 shares or 50% of the Member States shareholding in Company A.

Equity class 2:

For the equity that goes above and beyond the Member States pre-COVID-19 shareholding, the pre-existing rules apply, and a competitive sales process is mandatory.

This would correspond to max. 200 shares or 40% of the Member States shareholding in Company A.

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EU Commission publishes fourth amendment to its Temporary Framework for state aid in relation to the COVID-19 crisis - Lexology

Last month, BuzzFeed News published an investigative report that alleged that banks sat on their hands while criminals laundered trillions of dollars over the past two decades. The FinCEN Files report and its conclusions are based on over 2,600 leaked documents that cover 200,000 suspicious financial transactions valued at $2 trillion between 1999 and 2017. In the wake of the scandal, commentators have contended that reform is needed. Sen. Elizabeth Warren (D-MA) responded with calls for further regulation of the banking industry.

While it is true that reform is needed, Warren and the others advocating to go after the banks fundamentally misunderstand the problem. Although the FinCEN Files leak has framed banks as enablers who allowed criminals to carry out illegal money laundering, the reports findings seem to suggest that the banks involved did little to nothing wrong and followed the letter of the lawthat law being the Bank Secrecy Act (BSA) and its respective regulations.

Under the BSA, financial institutions report to the Treasury Departments Financial Crimes Enforcement Network (FinCEN) and are charged with carrying out anti-money laundering operations. The BSA requires financial institutions to provide information to law enforcement agencies by filing currency transaction reports (CTRs) for transactions over $10,000 and suspicious activity reports (SARs) for suspected incidents of money laundering or fraud. In the words of Thomas Wade of the American Action Forum, the BSA deputizes firms to prevent, identify, investigate, and report criminal activity. In practice, the BSA has essentially made banks the snitches and Karens of the financial services industry.

As noted by the International Consortium of Investigative Journalists (which contributed to FinCEN Files): A suspicious activity report (SAR) is not an accusation, its a way to alert government regulators and law enforcement to irregular activity and possible crimes. Since nothing in the FinCEN Files report suggests that banks purposefully avoided filing SARs when needed, it is logical to conclude that any and all fault lies with the government regulators and law enforcement authorities who failed to utilize the SARs and act. In fact, a newly published report from the Government Accountability Office says that SARs are underused and recommend that FinCEN develop policies and procedures to promote greater law enforcement use of Bank Secrecy Act reports.

Clearly, some sort of reform is needed. Sen. Warrens idea for reform calls for the creation of a new unit in the Treasury Department, separate from FinCEN, to investigate these types of financial crimes. Her proposal assumes that the problem with SARs is that there are not enough government resources or employees to investigate each filing.

In reality, the real problem with SARs is their sheer volume. According to Dynamic Securities Analytics, over 2.3 million SARs were filed in 2019, a 6 percent increase from 2018. As Brian Reardon of the S Corporation Association recently points out, FinCEN Files show that FinCEN SAR data is not being effectively used by regulators to stop crime. Reardon notes: Despite the fact that SARs reports are limited to reports of suspicious activity reported by financial institutions engaged in the transactions, the volume of information transmitted to the Treasury Department clearly is overwhelming and not effectively analyzed or managed. Reardon also argues that the very nature of the report shows that FinCEN data is not secure.

Beyond that, in 2018, the Bank Policy Institute (BPI) conducted a comprehensive study to help determine if the resources banks put towards anti-money laundering compliance were providing law enforcement with useful data. BPI found that participating banks spent $2.4 billion and employed 14,000 individuals for anti-money laundering regulatory compliance. Despite these high costs, however, BPI found that only 4 percent of SARs and 0.44 percent of CTRs warranted follow-up by law enforcement.

Rather than throwing more money and people at the problem, Warren should be looking to modernize our anti-money laundering framework. Rep. Blaine Luetkemeyers (R-MO) Counter Terrorism and Illicit Finance Act would do just that. Luetkemeyers legislation would ease the BSA burden on banks and law enforcement by raising the threshold to require a CTR or SAR. While the bill preserves the criteria that financial institutions use to report suspicious activity, it directs the Treasury Secretary to conduct a formal review of reporting requirements to ensure that the information banks provide to law enforcement is of a high degree of usefulness. The bill also directs the Treasury Secretary to encourage the use of technological innovations to improve financial institutions anti-money laundering programs, providing safe harbor protection to banks.

While Luetkemeyers legislation would certainly be a step in the right direction, it would be even better to outright repeal the BSA. Unprecedented? No, the Competitive Enterprise Institute has argued this for over 20 years and Rep. Ron Paul supported the idea when he was in Congress.

In 1999, then-CEI senior policy analyst Solveig Singleton testified before the House Committee on Banking and Financial Services Oversight and made this pitch. In her written testimony on the Bank Secrecy Act and the laws reporting requirements, Singleton argued that the BSAs SAR requirement forces banks to engage in some form of customer profiling and sacrifices the privacy of all to catch a tiny number of alleged wrongdoers. Singleton cited research from the American Enterprise Institute that found that between 1987 and 1995 there were 77 million SARs filed, yet only 3,000 alleged money laundering suits, and a mere 580 convictions. Singleton asked: How could such a high ratio of filings to investigations possibly be supported against the Fourth Amendments requirement that the police are not to go shuffling through our papers without probable cause, and a warrant particularly describing the item or person they want to seize? She concluded that No American citizen should be treated like a suspect unless and until he is one. The Bank Secrecy Act has no place in America.

In 2001, Dr. Richard Rahn, former chairman of Novecon Financial, contributed to CEIs The Future of Financial Privacy and called for an edn to the war on money laundering due to privacy concerns.

Later in 2003, CEI scholar John Berlau wrote in Reason magazine about the PATRIOT Act and how it expanded the BSA to force businesses to spy on their customers:

In the debate over the PATRIOT Act and other broad surveillance measures, the Bank Secrecy Act should be thought of as a 30-year experiment in subverting the Fourth Amendment. The experiment has imposed tremendous costs on individual privacy and the economy (even before 9/11, the banking industry was estimating compliance costs of $10 billion a year), with few tangible results in stopping crime and even fewer in preventing terrorism. Getting back to the standards of the Fourth Amendment is a good idea, not just for securing privacy but for making law enforcement and intelligence agencies more focused and effective at stopping criminals and catching terrorists.

While BuzzFeed often, and rightly, complains about threats to our privacy (examples here, here, and here), the framing of its FinCEN Files report is fueling the calls by some to increase the extent to which private businesses are forced to violate the Fourth Amendment and their customers privacy.

Considering the threat that the BSA poses to privacy rights, coupled with the laws regulatory burden and hampering of law enforcement activity, lawmakers should reform or repeal it.

CEI research associate Seth Carter contributed to this post.

Read more here:
FinCEN Files Shows Regulatory and Privacy Concerns with the Bank Secrecy Act and the Necessity for Reform or Repeal - Competitive Enterprise Institute

Imagine walking down the street, looking for a good cup of coffee. In the distance, a storefront glows in green through your smart glasses, indicating a well-reviewed cafe with a sterling public health score. You follow the holographic arrows to the crosswalk, as your wearables silently signal the self-driving cars to be sure they stop for your right of way. In the crowd ahead you recognize someone, but cant quite place them. A query and response later, Cameron pops above their head, along with the context needed to remember they were a classmate from university. You greet them, each of you glad to avoid the awkwardness of not recalling an acquaintance.

This is the stuff of science fiction, sometimes utopian, but often as a warning against a dystopia. Lurking in every gadget that can enhance your life is a danger to privacy and security. In either case, augmented reality is coming closer to being an everyday reality.

In 2013, Google Glass stirred a backlash, but the promise of augmented reality bringing 3D models and computer interfaces into the physical world (while recording everything in the process) is re-emerging. As is the public outcry over privacy and always-on recording. In the last seven years, companies are still pushing for augmented reality glasseswhich will display digital images and data that people can view through their glasses. Chinese company Nreal, Facebook and Apple are experimenting with similar technology.

Digitizing the World in 3D

Several technologies are moving to create a live map of different parts of our world, from Augmented or Virtual Reality to autonomous vehicles. They are creating machine-readable, 1:1 scale models of the world that are continuously updated in real-time. Some implement such models through point clouds, a dataset of points coming from a scanner to recreate the surfaces (not the interior) of objects or a space. Each point has three coordinates to position them in space. To make sense of the millions (or billions) of points, a software with Machine Learning can help recognize the objects from the point cloudslooking exactly as a digital replica of the world or a map of your house and everything inside.

The promise of creating a persistence 3D digital clone of the world aligned with real-world coordinates goes by many names: worlds digital twin, parallel digital universe, Mirrorworld, The Spatial Web, Magic Verse'' or a Metaverse. Whatever you call it, this new parallel digital world will introduce a new world of privacy concernseven for those who choose to never wear it. For instance, Facebook Live Maps will seek to create a shared virtual map. LiveMaps will rely on users crowd-sourced maps collected by future AR devices with client-mapping functionality. Open AR, an interoperable AR Cloud, and Microsofts Azure Digital Twins are seeking to model and create a digital representation of an environment.

Facebooks Project Aria continues on that trend and will aid Facebook in recording live 3D maps and developing AI models for Facebooks first generation of wearable augmented reality devices. Arias uniqueness, in contrast to autonomous cars, is the egocentric data collection of the environmentthe recording data will come from the wearers perspective; a more intimate type of data. Project Aria is also a 3D live-mapping tool and software with an AI development tool, not a prototype of a product, nor an AR device due to the lack of display." According to Facebook, Arias research glasses, which are not for sale, will be worn only by trained Facebook staffers and contractors to collect data from the wearers point of view. For example, if the AR wearer records a building and the building later burns down, the next time any AR wearer walks by, the device can detect the change, and update the 3D map in real-time.

A Portal to Augmented Privacy Threats

In terms of sensors, Arias will include among others a magnetometer, a barometer, GPS chip, and two inertial measurement units (IMU). Together, these sensors will track where the wearer is (location), where the wearer is moving (motion), and what the wearer is looking at (orientation)a much more precise way to locate the wearers location. While GPS doesnt often work inside a building, for example, sophisticated IMU can allow a GPS receiver to work well indoors when GPS-signals are unavailable.

A machine learning algorithm will build a model of the environment, based on all the input data collected by the hardware, to recognize precise objects and 3D map your space and the things on it. It can estimate distances, for instance, how far the wearer is from an object. It also can identify the wearers context and activities: Are you reading a book? Your device might then offer you a reading recommendation.

The Bystanders Right to Private Life

Imagine a future where anyone you see wearing glasses could be recording your conversations with always on microphones and cameras, updating the map of where you are in precise detail and real-time. In this dystopia, the possibility of being recorded looms over every walk in the park, every conversation in a bar, and indeed, everything you do near other people.

During Arias research phase, Facebook will be recording its own contractors interaction with the world. It is taking certain precautions. It asks the owners concerns before recording in privately owned venues such as a bar or restaurant. It avoids sensitive areas, like restrooms and protests. It blurs peoples faces and license plates. Yet, there are still many other ways to identify individuals, from tattoos to peoples gait, and these should be obfuscated, too.

These blurring protections mirror those used by other public mapping mechanisms like Google Street View. These have proven reasonablebut far from infalliblein safeguarding bystanders privacy. Google Street View also benefits from focusing on objects, which only need occasional recording. Its unclear if these protections remain adequate for perpetual crowd-sourced recordings, which focus on human interactions. Once Facebook and other AR companies release their first generation of AR devices, it will likely take concerted efforts by civil society to keep obfuscation techniques like blurring in commercial products. We hope those products do not layer robust identification technologies, such as facial recognition, on top of the existing AR interface.

The AR Panopticon

If the AR glasses with always-on audio-cameras or powerful 3D mapping sensors become massively adopted, the scope and scale of the problem changes as well. Now the company behind any AR system could have a live audio/visual window into all corners of the world, with the ability to locate and identify anyone at any time, especially if facial or other recognition technologies are included in the package. The result? A global panopticon society of constant surveillance in public or semi-public spaces.

In modern times, the panopticon has become a metaphor for a dystopian surveillance state, where the government has cameras observing your every action. Worse, you never know if you are a target, as law enforcement looks to new technology to deepen their already rich ability to surveil our lives.

Legal Protection Against Panopticon

To fight back against this dystopia, and especially government access to this panopticon, our first line of defense in the United States is the Constitution. Around the world, we all enjoy the protection of international human rights law. Last week, we explained how police need to come back with a warrant before conducting a search of virtual representations of your private spaces. While AR measuring and modeling in public and semi-public spaces is different from private spaces, key Constitutional and international human rights principles still provide significant legal protection against police access.

In Carpenter v. United States, the U.S. Supreme Court recognized the privacy challenges with understanding the risks of new technologies, warning courts to tread carefully to ensure that we do not embarrass the future.

To not embarrass the future, we must recognize that throughout history people have enjoyed effective anonymity and privacy when conducting activities in public or semi-public spaces. As the United Nations' Free Speech Rapporteur made clear, anonymity is a common human desire to protect ones identity from the crowd..." Likewise, the Council of Europe has recognized that while any person moving in public areas may expect a lesser degree of privacy, they do not and should not expect to be deprived of their rights and freedoms including those related to their own private sphere. Similarly, the European Court of Human Rights, has recognized that a zone of interaction of a person with others, even in a public context, may fall within the scope of private life. Even in public places, the systematic or permanent recording and the subsequent processing of images could raise questions affecting the private life of individuals. Over forty years ago, in Katz v. United States, the U.S. Supreme Court also recognized "what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

This makes sense because the natural limits of human memory make it difficult to remember details about people we encounter in the street; which effectively offers us some level of privacy and anonymity in public spaces. Electronic devices, however, can remember perfectly, and collect these memories in a centralized database to be potentially used by corporate and state actors. Already this sense of privacy has been eroded by public camera networks, ubiquitous cellphone cameras, license plate readers, and RFID trackersrequiring legal protections. Indeed, the European Court of Human Rights requires clear detailed rules..., especially as the technology available for use [is] continually becoming more sophisticated.

If smartglasses become as common as smartphones, we risk losing even more of the privacy of crowds. Far more thorough records of our sensitive public actions, including going to a political rally or protest, or even going to a church or a doctors office, can go down on your permanent record.

This technological problem was brought to the modern era in United States v. Jones, where the Supreme Court held that GPS tracking of a vehicle was a search, subject to the protection of the Fourth Amendment. Jones was a convoluted decision, with three separate opinions supporting this result. But within the three were five Justices a majority who ruled that prolonged GPS tracking violated Jones reasonable expectation of privacy, despite Jones driving in public where a police officer could have followed him in a car. Justice Alito explained the difference, in his concurring opinion (joined by Justices Ginsburg, Breyer, and Kagan):

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.

The Jones analysis recognizes that police use of automated surveillance technology to systematically track our movements in public places upsets the balance of power protected by the Constitution and violates the societal norms of privacy that are fundamental to human society.

In Carpenter, the Supreme Court extended Jones to tracking peoples movement through cell-site location information (CSLI). Carpenter recognized that when the Government tracks the location of a cell phone it achieves near perfect surveillance as if it had attached an ankle monitor to the phone's user. The Court rejected the governments argument that under the troubling third-party doctrine, Mr. Carpenter had no reasonable expectation of privacy in his CSLI because he had already disclosed it to a third party, namely, his phone service provider.

AR is Even More Privacy Invasive Than GPS and CSLI

Like GPS devices and CSLI, AR devices are an automated technology that systematically documents what we are doing. So AR triggers strong Fourth Amendment Protection. Of course, ubiquitous AR devices will provide even more perfect surveillance, compared to GPS and CSLI, not only tracking the users information, but gaining a telling window into the lives of all the bystanders around the user.

With enough smart glasses in a location, one could create a virtual time machine to revisit that exact moment in time and space. This is the very thing that concerned the Carpenter court:

the Government can now travel back in time to retrace a person's whereabouts, subject only to the retention policies of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States not just those belonging to persons who might happen to come under investigation this newfound tracking capacity runs against everyone.

Likewise, the Special Rapporteur on the Protection of Human Rights explained that a collect-it-all approach is incompatible with the right to privacy:

Shortly put, it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately. The very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis.

AR is location tracking on steroids. AR can be enhanced by overlays such as facial recognition, transforming smartglasses into a powerful identification tool capable of providing a rich and instantaneous profile of any random person on the street, to the wearer, to a massive database, and to any corporate or government agent (or data thief) who can access that database. With additional emerging and unproven visual analytics (everything from aggression analysis to lie detection based on facial expressions is being proposed), this technology poses a truly staggering threat of surveillance and bias.

Thus, the need for such legal safeguards, as required in Canada v. European Union, are all the greater where personal data is subject to automated processing. Those considerations apply particularly where the protection of the particular category of personal data that is sensitive data is at stake.

Augmented reality will expose our public, social, and inner lives in a way that maybe even more invasive than the smartphones revealing montage of the user's life that the Supreme Court protected in Riley v California. Thus it is critical for courts, legislators, and executive officers to recognize that the government cannot access the records generated by AR without a warrant.

Corporations Can Invade AR Privacy, Too

Even more, must be done to protect against a descent into AR dystopia. Manufacturers and service providers must resist the urge, all too common in Silicon Valley, to collect it all, in case the data may be useful later. Instead, the less data companies collect and store now, the less data the government can seize later.

This is why tech companies should not only protect their users right to privacy against government surveillance but also their users right to data protection. Companies must, therefore, collect, use, and share their users AR data only as minimally necessary to provide the specific service their users asked for. Companies should also limit the amount of data transited to the cloud, and the period it is retained, while investing in robust security and strong encryption, with user-held keys, to give user control over information collected. Moreover, we need strong transparency policies, explicitly stating the purposes for and means of data processing, and allowing users to securely access and port their data.

Likewise, legislatures should look to the augmented reality future, and augment our protections against government and corporate overreach. Congress passed the Wiretap Act to give extra protection for phone calls in 1968, and expanded statutory protections to email and subscriber records in 1986 with the Electronic Communication Privacy Act. Many jurisdictions have eavesdropping laws that require all-party consent before recording a conversation. Likewise, hidden cameras and paparazzi laws can limit taking photographs and recording videos, even in places open to the public, though they are generally silent on the advanced surveillance possible with technologies like spatial mapping. Modernization of these statutory privacy safeguards, with new laws like CalECPA, has taken a long time and remains incomplete.

Through strong policy, robust transparency, wise courts, modernized statutes, and privacy-by-design engineering, we can and must have augmented reality with augmented privacy. The future is tomorrow, so lets make it a future we would want to live in.

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Augmented Reality Must Have Augmented Privacy - EFF

Scalawag created the As the South Votes project in part as a resource for rural Southern voters whose stories often go uncoveredor are flat out misrepresented by national media outlets. Stereotypes of rural voters as those who vote against their own interests fail to see the structural ways in which rural communities are discounted and intentionally discouraged from voting. At a recent virtual town hall, Anoa Changa sat down with three representatives from advocacy groups across the South where they discussed how to ethically empower rural voters this election.

If we had enough voting power in our metro areas, we would already be living in the kind of state we want to live in.

Accessibility of information applies to material barriers, too. Advocacy groups across the South are investing more in signage like billboards and other "offline" media to get actionable information into the hands of people in communities without technological infrastructure.

"When I'm thinking about voter IDs, and the limitations of folks who live in rural communities outside of Jackson, I'm thinking about [] places where you don't have a mailbox, you have a PO box, and the PO box is in town, and you have to drive to town to get there," Bennett said. "People don't have public transportation, people don't have cars. So we're talking about all of these different economic restrictions and mobility issues around like how people can even access the thing in the first place."

Adding to the accessibility headache, mainstream media also often mischaracterizes or fails to accurately represent the real concerns of people in rural areas, feeding into the kind of general distrust that Benavidez cautioned about.

This predisposition and valid hesitance to outsiders makes deep partnerships and relationship-building even more crucial for organizers trying to win trust in areas where others have historically not made appropriate efforts.

"When I go to do this work in those rural communities, I of course go with deference and respectbut also an understanding that we have established groups and organizations that do the work," Khondoker said.

It's those strategic partnershipsand the followthrough on themthat can make or break effective mobilization.

"I don't make promises I can't keep. If I tell them I want to show up, I show up," Shelton said. "You know, if we say we're going to meet on a Wednesday at five o'clock and it's raining, we will still be there Wednesday, even if it's raining. I think that consistency and showing up in those rural communities really makes a huge difference."

That mobilization is key in harnessing the power of would-be voters to swing entire states.

"One of the things that I always remind folks in South Louisiana is that if it would be enough for us to have the power in South Louisiana, we'd already be living in the state we want to live in, because it'd be fixed," Shelton said. "But the reality is that you've got to have the whole state engaged. And those voters and those voices in those rural parishes are really critical to how we build and get to a stronger state, and how we build voice and power."

Arekia Bennett has organized and empowered youth across Mississippi over the last 10 years. She serves as the Executive Director of Mississippi Votes, a statewide, millennial led, civic engagement non-profit organization that has engaged over 500,000 young people across the state. Since 2018, Mississippi Votes has registered around 15,000 new voters, many of them between the ages of 18 and 39, and many of whom were formerly incarcerated and or in prison. Mississippi Votes also advocates for policies to expand voting access in Mississippi.

Aklima Khondoker is All Voting is Local's Georgia State Director. Prior to joining the campaign, Khondoker worked as a staff attorney and the senior manager for the Voting Access Project at the ACLU of Georgia, where she focused on first and fourth amendment issues, women's reproductive freedoms, and voting rights. Her voting rights work in Georgia includes both litigation and advocacy. She's been involved in the development and execution of voting rights strategy that has included crafting policy and regulatory proposals, partnership development, monitoring local election boards, and successfully advocating for more voting sites.

Ashley Shelton is the Executive Director of the Power Coalition, a statewide 501c3 table in Louisiana. The Power Coalition uses a broad-based strategy that combines community organizing, issue advocacy, and civic action all while increasing the capacity of community organizations throughout the state to sustain and hold the work. Their integrated voter engagement approach has changed policy at the municipal and state level, and moved infrequent voters of color to vote at higher levels.

Originally posted here:
Don't discount the majority of your state: Reaching rural Southern voters - scalawagmagazine.org