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Fred Schilling, Collection of the Supreme Court of the United StatesThe U.S. Supreme Court will hear oral arguments sometime in its coming term in one of the most significant Fourth Amendment cases in years.

At issue in Carpenter v. United States is the question of whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, federal officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was later used against Carpenter in court.

The Trump administration strongly urged the Supreme Court not to hear this case. Why? Because "a person has no Fourth Amendment interest in records created by a communications-service provider in the ordinary course of business that pertain to the individual's transactions with the service provider," the administration told the Court in its brief in opposition to the petition for certiorari.

What is more, the administration argued, "the acquisition of a business's records does not constitute a Fourth Amendment 'search' of an individual customer even when the records reflect information pertaining to that customer."

This cramped view of the Fourth Amendment is extremely dangerous to the privacy rights of all Americans in the age of the smart phone. As the Supreme Court recognized in the 2014 case of Riley v. California, in which the Court unanimously told the police to "get a warrant" before searching cellphones incident to arrest, "modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

Consider the sort of information a typical cellphone user shares with a cellphone company. It is much more than just numbers dialed or texted; it includes email addresses of correspondents, the URLs of websites visited, and, of course, the physical locations from which the device itself was accessed. Shouldn't the Fourth Amendment offer some genuine protection for such highly personal private information?

As a back-up argument, the Trump administration claims that even if the Fourth Amendment is held to apply to the cell-site information at issue in this case, the government's actions against Carpenter should still be ruled constitutional on the grounds that they are a "reasonable" exception to the normal requirements of the Fourth Amendment.

"Society has a strong interest in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an investigation," the Trump administration argued. According to the government, in other words, it takes too long and causes too much hassle for law enforcement officials to bother getting a search warrant in cases like this.

But that view turns the Fourth Amendment on its head. One of the main purposes of the Fourth Amendmentas well as other guarantees in the Bill of Rightsis to restrain overzealous government agents before they run roughshod over the rights of individuals. The Trump administration, by contrast, wants to loosen such constitutional restrictions on the cops.

It is a heartening sign that the Supreme Court agreed to hear this important case over the objections of the Trump administration. Hopefully the Court will ultimately reject the administration's disfiguring interpretations and issue a decision that gives the Fourth Amendment its due.

Related: Use a Cellphone, Void the Fourth Amendment?

Read the rest here:
In Warrantless Cellphone Search Case, It's the Trump Administration vs. the 4th Amendment - Reason (blog)

The Fourth Amendment is in a sorry state. The constitutional provision intended to protect us and our property from unreasonable searches and seizures has been weakened over decadesa fact that ought to be of acute concern at a time when surveillance technology is increasingly intrusive and secretive. A modernization of Fourth Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance, David Gray, a professor at the University of Marylands Francis King Carey School of Law, attempts to outline what such a modernization might look like. To establish why reform is necessary, he offers a historical account. Gray traces the concepts embodied in the amendment back to mid-18th-century concerns in both England and the American colonies about overly broad permissions for executive agents. In England, the focus of the controversy was general warrants, which were vague in purpose and almost unlimited in scope.

In the colonies, the controversy focused on writs of assistance, a specialized kind of general warrant, ripe for abuse. In a five-hour-long speech before the Massachusetts Superior Court in 1761, the lawyer James Otis Jr. condemned writs of assistance, declaring them the worst instrument of arbitrary power, the most destructive of English liberty. John Adams, who witnessed Otiss oration, decades later described it as the moment when the Child Independence was born. A distaste for needless and indiscriminate intrusions into homes and other property is thus baked into Americas revolutionary DNA. It was eventually codified in the Fourth Amendment, with its prohibition of unreasonable searches and seizures and guarantee that no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The doctrines used in interpreting the amendment have evolved over time. The rise of modern police forces prompted the judiciary to develop the exclusionary rule (which ensures that evidence collected via Fourth Amendment violations is inadmissible), the Miranda warning (which, as anyone who has seen a TV cop show in the last four decades can tell you, holds that once youre in police custody officers must tell you that you have the right to remain silent and the right to an attorney), and the warrant requirement (which holds that searches are per se unreasonable if theyre conducted without prior approval from a judge or magistrate).

The interpretation of the Fourth Amendment has also evolved in response to technological development. Notably, the advent of eavesdropping devices gave rise to the reasonable expectation of privacy test, first formulated in Supreme Court Justice John Harlans concurrence in Katz v. United States (1967) and subsequently adopted by the Court. According to the test, government agents have conducted what the law considers a search if they have violated an individuals subjective expectation of privacy and if that expectation is one that society is prepared to accept as reasonable.

Unfortunately, Gray writes, the Katz test has proven inadequate to the task of regulating the means, methods, and technologies that have come to define our contemporary age of surveillance. Gray puts in his crosshairs three post-Katz doctrines that have had the effect of leaving some of the most intrusive surveillance technologies outside the purview of Fourth Amendment challenge.

First, thanks to the public observation doctrine, police do not necessarily need a warrant to peek into your backyard with a drone. (Some states have passed legislation mandating warrants for drone surveillance, but these requirements go beyond what is required by current Fourth Amendment interpretation.) Nor do police need a warrant to track your public activities for days at a time. As Gray points out, there wouldnt even seem to be a Fourth Amendment issue if the government were to install GPS trackers in every car or computer and then use those trackers to keep an eye on all citizens public movements. After all, as the Katz Court held, What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

The third-party doctrine likewise offers little reassurance. According to this doctrine, you have no reasonable expectation of privacy in information you voluntarily surrender to third parties, such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication, the implications of the third-party doctrine are significant. For example, police today can deploy devices called stingrays that mimic cellular towers. Each cell phone is constantly playing a game of Marco Polo with nearby cell towers, seeking a connection. A stingray emits a boosted signal, forcing all nearby phones to connect to it. This allows police to monitor the location of a targets cell phone. Using a stingray, law enforcement can also uncover information about a targets communications, such as the number of texts sent, the recipients of texts, the phone numbers dialed, and the duration of calls. But stingrays can also collect all of this information about the communications of innocent people. Thanks to the third-party doctrine, there is no clear Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal standing in Fourth Amendment cases have, according to Gray, also weakened the remedies available to citizens. Under the rules that emerged after Katz, plaintiffs must demonstrate that they have suffered a violation of their reasonable expectation of privacy. So, for example, citizens outraged about the National Security Agencys metadata collection program lack the standing to file their own Fourth Amendment suits; they have to be able to explain how the program violated their reasonable expectations of privacy. Or, in another instance, when Amnesty International challenged the FISA Amendments Act of 2008, a law giving the federal government broad power to snoop on U.S. citizens international communications, the Supreme Court ruled in 2013 that the organization lacked standing to challenge the law, even though Amnesty works with many international partners. As Justice Samuel Alito wrote for the Court, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.

With its citations from old dictionaries and other contemporary texts, Grays exhaustive word-by-word and clause-by-clause dissection of the Fourth Amendment should appeal to originalists. His take on standing may raise a few eyebrows, but he does a noble job of defending his claim that an original public understanding of the Fourth Amendment reveals that it protects a collective right to prospective relief, not just relief for past individual harms. The amendment does protect individuals, Gray believes, but its individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment protections in light of the high-tech surveillance techniques that are now available to authorities. Surveillance conducted by drones and stingrays could, he argues, be curtailed via a remedy modeled on the Wiretap Act. Under that 1968 legislation, passed in the wake of the Katz ruling, officers seeking a wiretap order must establish probable cause, exhaust other investigative methods, and ensure that the wiretap is time-limited. The act also requires that officers regularly report back to the court that issued the wiretap warrant.

When it comes to Big Data, Gray proposes a range of constraints governing the aggregation, collection, analysis, and storage of data.

Perhaps Grays most interesting proposal flows from his collective-right theory of the Fourth Amendment. He would allow individuals and organizations to have standing to challenge programs that threaten the people as a whole. This would allow, say, the American Civil Liberties Union to challenge the legality of New York Citys stop-and-frisk program. Such other programs and technologies as persistent aerial surveillance, metadata surveillance, and license-plate readers would be open to challenge under Grays understanding of the Fourth Amendment.

Not everyone will be convinced by Grays analysis. Some critics will undoubtedly dispute his collective-right theory of the Fourth Amendment and quibble with his Wiretap Act-like remedies. However, these disagreements will not detract from the fact that his book is a welcome and informative contribution to the public debate about surveillancea debate that will lastingly shape how we live together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.

Excerpt from:
How the Fourth Amendment Can Keep Up With Modern Surveillance - The Weekly Standard

A Utah nurse and her attorney have released video footage showing an officer roughly arresting her at University of Utah Hospital in Salt Lake City. They say it amounts to assault.

The video shows an officer aggressively handcuffing nurse Alex Wubbels after she refuses to allow him to draw blood from an unconscious patient.

That's after she calmly explained to him that it is against hospital policy to allow blood to be drawn without a warrant or the patient's consent, unless the patient is under arrest.

The video was released Thursday and has since gained national attention, prompting a joint news conference Friday with the city's mayor and police chief.

When asked by a reporter why this level of force was necessary, Salt Lake City Mayor Jackie Biskupski was clear: "It was not necessary. That's what we're here to say. And we are truly apologetic."

The incident is centered on Wubbels a former Olympic skier, according to The Salt Lake Tribune and a police detective identified in local media as Jeff Payne. The Salt Lake City Police Department declined to release his name. According to the Tribune, Payne was seeking a blood sample "from a patient who had been injured in a July 26 collision in northern Utah that left another driver dead."

You can watch the video here:

In the footage, Wubbels holds a document detailing hospital policy. She reads aloud to the detective that for law enforcement to obtain blood samples from patients suspected of being under the influence, police must either present an electronic warrant, gain patient consent or have the patient under arrest.

"The patient can't consent," she says to a person on the phone, who appears to be a hospital administrator. "And he's told me repeatedly that he doesn't have a warrant. And the patient is not under arrest. So I'm just trying to do what I'm supposed to do, that's all."

The police officer says: "So I take it without those in place, I'm not going to get blood. Am I fair to surmise that?"

The nurse appears confused. "I have no idea why he's blaming me," she tells her colleague on the phone, who then asks the officer why he's "blaming the messenger" and tells him that he's "making a huge mistake."

The police officer then suddenly lunges at the nurse, yelling, "We're done, you're under arrest, you're going," as she screams, "Somebody help me, please!" He continues muttering "We're done" as he forces her outside and roughly cuffs her hands behind her back.

"I've done nothing wrong!" Wubbels cries.

"This has upended her worldview in a way. She just couldn't believe this could happen," her lawyer, Karra Porter, told The Associated Press.

Last year, the Supreme Court issued an opinion stating that warrantless blood tests associated with arrests for drunken driving are not permitted under the Fourth Amendment.

"That was not a just arrest," the mayor said. "She was released that evening without leaving the grounds of the hospital. Again, the circumstances are unacceptable and we are very apologetic."

Police Chief Mike Brown told reporters that the officer has been suspended from the department's blood draw duty. He remains on modified duty and is not working in the field, Brown said, pending the results of an internal investigation that was started within 12 hours of the incident. Biskupski added that there is a parallel Civilian Review Board investigation ongoing.

"I was alarmed by what I saw in the video with our officer and Ms. Wubbels," said Brown. "I am sad at the rift this has caused between law enforcement and the nurses we work so closely with."

He said that the department "took steps to ensure this will never happen again," including changing its blood draw policy.

Original post:
WATCH: Nurse Roughly Arrested For Following Hospital Protocol, Body Camera Shows - NPR

The OWI Labs op-ed series breaks down the latest news with an inside look at identity industry dynamics our team of experts are closely following. This week, OWI Senior Analyst Simeon Beal talks Carpenter v. United States, the digital age, and the evolution of Fourth Amendment rights.

From 2010 to 2013, Timothy Carpenter allegedly coordinated over a dozen armed robberies of cellphone stores. Carpenter was arrested after one of his co-conspirators confessed, naming him and 16 other people in connection to the crime spree. As the FBI built their case against Carpenter, they contacted MetroPCS, Carpenters known cell phone carrier, and requested location data for his number for a 127-day period without a warrant.

Traditionally, a warrant is obtained by the police after they have convinced a court they have probable cause to believe waiving a citizens Fourth Amendment rights the prohibition of unlawful search and seizures would lead to a criminal arrest. However, under the Stored Communications Act, law enforcement agents only require reasonable suspicion and not probable cause to obtain communication data from third-party internet service providers. In contrast, it reasonable suspicion requires much less evidence to prove. Moreover, telecommunication companies such as MetroPCS, Verizon, AT&T, and others have a longstanding history of generously sharing their customer data with governmental agencies the FBI, NSA, CIA, etc. as there is no explicit law prohibiting them from doing so.

The cellphone records obtained by the FBI showed that Carpenter was within two miles of several of the robbery locations during the corresponding times in question. This evidence helped build a substantial case against Carpenter, and he was ultimately sentenced to 119 years in prison. However, his lawyers filed an appeal claiming that the FBI had violated his Fourth Amendment rights by obtaining his location data from MetroPCS without a warrant.

The Sixth Circuit Court of Appeals upheld that no warrant was necessary for Carpenters cellular location data in a 2-1 decision. The case was appealed again, and will be heard by the Supreme Court this fall.

As part of his defense, Carpenters lawyers argue that the mobile data all of the data shared with the third-party service providers should have been considered private information under the Fourth Amendment, therefore requiring a court-issued warrant before being obtained. This position will force the Supreme Court to revisit the question of what constitutes private data, as well as what protocols should governmental agencies be forced to comply with in order to access it.

The current definition of private data in the U.S. was established in the 1967 case of Katz v. United States with the creation of the third-party doctrine. The third-party doctrine states that in the public domain, where there is not a reasonable expectation to privacy, there is a clear distinction between the content of a communication, and the information necessary to convey the direction or purpose of where that communication is intended to end up or routing.

Think about bringing a package into a post office a big package wrapped in bright pink wrapping paper. Once you walk into the post office it is unreasonable to expect people to not notice your presence or the vibrant package you are carrying. Therefore, the logical conclusion must be that all of the information on the outside of the package is now in the public domain, including the routing information of where the package is to be shipped. Nevertheless, the contents of that package cannot be seen by anyone in the store, making the information yours and yours alone. Because that knowledge is private, the post office or any citizen of the U.S. would be breaking the law, in violation of the Fourth Amendment, if they were to open your package without permission.

While the package example is simple, privacy has become more complicated in the digital age, where people send text messages far more frequently than mailing packages. New online communication methods pose a credible challenge to the traditional bifurcation of the content and routing paradigm of private data.

So instead of mailing a package, lets consider sending a text. Just like when you mail a package, there is certain identifiable information attached to the item, including routing information, the users current location, the time the message was sent, and what phone number or contact the message was sent to. And like the package containing items inside, our text contains the actual words being sent. With this analogy, a user sending a text would reasonably expect that the contents of the text message itself would be private. But what about the other information, such as location data is it reasonable to expect it to remain private? Or should the government be able to access that information without a warrant?

Furthermore, another area of contention in this case is the growing capability of service providers to accurately record your location. In order to meet the growing demand for cellphones and to provide better cell-service to their customers, service providers have had to introduce more cell towers with increased capabilities into their network. This more robust infrastructure has enabled telecom companies to track your movements in real-time with up to as little as 50 meters of variation, and sometimes provide latitude and longitude coordinates that rival the abilities of GPS. As their ability to triangulate your location becomes more accurate, does this begin to infringe on your reasonable expectation of privacy? Should the governmental agencies be required to ascertain a warrant before having access to this data? These questions are going to be central in the Supreme Courts debate this fall.

The Supreme Courts decision will have vast implications on either the private sector or on the governmental agencies currently using the third-party doctrine for location data collection.

If the court decides to affirm the verdict of the Sixth Circuit Court of Appeals, the telecommunication and big data providers will be compelled to continue providing police officers with their customers location data without a warrant. Additionally civil-rights activist groups, including the American Civil Rights Union, who see this case as an opportunity to increase the scope of data protection rights in the United States will be outraged. Conversely, if the Supreme Court were to overturn the verdict governmental agencies will be forced to obtain warrants before requesting location information from companies. Furthermore, in recent years private companies have been collecting their customers geolocation data and leveraged it to refine their business operations. If the court were to overturn the verdict, private companies might be compelled to discontinue this practice.

Investigators have come to rely heavily on the cooperation of service providers and big data providers for location data of criminal suspects over the past several years, and argue this relationship has greatly served to benefit national security interests. However, Carpenters legal team believes their defense strongly rests on their ability to argue that the legal paradigm of private data established by the third-party doctrine in 1967 is ill-equipped to handle the nuances of modern day communication platforms. Privacy in the digital age remains a murky subject, but its possible well have some legal clarity when the Supreme Court weighs in on the case this fall.

Read more from the original source:
OWI Labs op-ed: Carpenter v. United States and the fate of the Fourth Amendment in the digital age - One World Identity

Today, it is easy to forget where many of our freedoms come from. It is also dangerous to turn a blind eye to history. Civilizations, military commanders, and leaders of nations have ignored history and human behavior with devastating results.

Perhaps the most important freedoms we enjoy are embedded in the Fourth Amendment. The Fourth Amendment to the United States Constitution was added as part of the Bill of Rights on Dec. 15, 1791. It protects us from the unreasonable searching of our homes and some areas of private property. The Fourth Amendment specifically provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Founders believed that freedom from government intrusion into ones home was a natural right (one granted from God) and fundamental to liberty. The idea that citizens should be protected from unreasonable searches and seizures originated in England hundreds of years ago. In 1604, Sir Edward Coke first identified this right. He said that The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.

During the Colonial era, the King of England looked at the American colonies as a financial investment. Britain passed numerous revenue collection bills aimed at generating as much money from the colonists as possible. Obviously, the colonists resented this act by the King and began smuggling operations to circumvent the custom taxes imposed by the British Crown.

In response, King George began the use of writs of assistance. These were legal search warrants that were extremely broad and general in scope. British agents could obtain a writ of assistance to search any property they believed might contain contraband goods. They could enter someones property or home without notice and without a reason. Agents could interrogate anyone and force their cooperation. These searches and seizures became an egregious affront to the people of the colonies. They would also be one the precipitating factors leading to the American Revolution and the eventual forming of our Constitution.

Since it became part of the Constitution, many common-sense exceptions to the Fourth Amendment right to have a properly executed search warrant issued before a search or seizure of private property can be conducted. They are too numerous to list in this column. However, two common examples are (1) a police officer may conduct a pat down search of someone if he or she has observed someone engaging in behavior that would give the officer reasonable, articulable suspicion that a crime has or is being committed; and (2) if a police officer sees someone committing a crime, or believes that he or she has probable cause to suspect someone has committed a crime, the officer may arrest the suspect without a warrant.

Today, the most common arguments in criminal cases surround the Fourth Amendment. We have vehicles, phones, computers, text messaging, Facebook, and numerous other forms of technology that did not exist in the 1700s. Judges must rule on contemporary issues as modern technology surfaces.

But, the analysis is the same today as it was over 200 years ago. The search and seizure of data from a smartphone must be reasonable under the Fourth Amendment just as the search and seizure of handwritten documents in a barn in 1820 would have had to be reasonable.

Looking back at the reasoning behind liberties in cultures helps to preserve freedoms. It is only when we become disinterested or even indifferent to our Founders that we take a dangerous path toward civilizational decline.

We cannot forget that our freedoms come from natural law, the courage of our Founders, and the words in a very old document that still apply today; the United States Constitution.

Jason Swindle is a Carrollton attorney.

See the article here:
The origin of the Fourth Amendment - Times-Georgian