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Timothy Carpenter and Timothy Sanders were convicted in federal court on charges stemming from a string of armed robberies in and around the Detroit area. They appealed on the ground that the government had acquired detailed records of their movements through cell site location information (CSLI) from their wireless carriers in violation of the Fourth Amendment. The U.S. Court of Appeals for the Sixth Circuit turned their appeal aside, finding that [t]he governments collection of business records containing these data is not a search.

The Fourth Amendment states that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Presumably, when called on to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of their persons, houses, papers, [or] effects? Was any such search or seizure reasonable?

In cases involving familiar physical objects, they usually do. In harder cases dealing with unfamiliar items such as communications and data, however, courts retreat to the Supreme Courts reasonable expectation of privacy doctrine that emerged from Katz v. United States (1967). The Court has decided to review the important criminal-procedure and digital-privacy issues here.

Cato and the Competitive Enterprise Institute, joined by Reason Foundation and the Committee for Justice, filed anamicus brief urging the Court to return to the text of the Fourth Amendment. The reasonable expectation of privacy test is outdated because it lacks a strong connection to the text and asks courts to conduct a sociological exercise rather than a judicial one. This is especially true in the context of new technology, where societal expectations have not been fully formed yet and will change based on the Courts judgment, leading to circular reasoning.

Courts have also used the reasonable expectation of privacy test to undermine the very things the Fourth Amendment was designed to protect. For instance, dog sniffs looking for drugs have been said to not compromise any legitimate interest in privacy because they are only looking for contraband. But just because a search is designed to look for illegal activity doesnt mean that the Fourth Amendment is inapplicable.

Likewise with the third-party doctrine, which holds that constitutional protections stop when protected information is shared.

The Carpenter case deals with information about a persons location for more than 100 days, and yet the government claims that no privacy is violated when it seizes and searches that data. The Court should return to the text of the Fourth Amendment and recognize that data and digital communication are property that are protected by the papers and effects part of the Fourth Amendment, as it did in Riley v. Californiathe 2014 case where the justices unanimously required a warrant for searching a phone seized during an arrest.

Here, the government ordered the information on Mr. Carpenters location turned over (a seizure) and then processed that data for the location of the defendants (a search). The defendants had a contract with the phone company prohibiting the distribution of the data and the Court should recognize the property interest that the defendants had based on that contract.

In sum, the Fourth Amendment presumes that a warrant is required but for exceptional circumstances. There was no exigency that threatens the destruction of the data here, threat to officer safety, or any other reason that law enforcement officers could not get a warrant if they had probable cause. Focusing on the actual text of the Fourth Amendment demonstrates that the governments actions here violated the Fourth Amendment.

The Supreme Court will hearCarpenter v. United States this fall.

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To Apply the Fourth Amendment in the Digital Age, Go Back to Its Text - Cato Institute (blog)

WAYNESBORO A lawsuit was filed Tuesday against an Augusta County Sheriff's investigator accused of violating the constitutional rights of a man charged in Waynesboro with distribution of methamphetamine.

The suit against Sheriff's investigator Michael Roane was filedon Tuesdayby Nexus Caridades, a law firm sponsored by the Verona-based Nexus Services.

The suit says that dating back to 2011, Roane has harassed Loren Varner and more recently violated his Fourth Amendment rights. During a Jan. 11, 2017 search outside of a Waynesboro restaurant, the suit said Varner was forced to empty his pockets and have his body searched by Roane, and a drug dog was used to search Varner's truck. The suit said this occurred after Varner had gone to the restaurant to eat.

According to the suit, a handler of the drug dog slapped Varner's truck, causing the dog to falsely alert on the truck and serve as probable cause for a search of the truck.

The suit said the search of Varner's truck produced no drugs or material related to drugs. Roane asked Varner to submit to a breath analysis, and Varner refused. Varner was not arrested or charged in the Jan. 11 encounter.

The suit seeks damages and attorney fees against Roane for what it calls Fourth Amendment unreasonable search and seizure violations stemming from the search of Varner's truck and the allegedly false drug alert'' of the dog on the man's truck.

The suit also mentions that Varner was charged in connection with a May 6, 2016 incident involving a sting by a drug task force that included Roane.

According to court records, Varner was charged in Waynesboro in 2016 with intent to distribute methamphetamine. The charge carries a 20-year minimum jail sentence upon conviction.

Waynesboro Police Capt. Mike Martin said he found the suspect with nearly two pounds of meth, and arrested him as a result of a joint investigation with Roane. The trial date for Varner is scheduled for Sept. 5.

Nexus CEO Mike Donovan said he hopes the case shines a light on the potential for Fourth Amendment violations by police.

The Fourth Amendment means absolutely nothing if officers believe they can fraudulently manufacture probable cause, Donovan said. This officer has a track record of these type of allegations, and the people of Augusta County deserve better."

Donovan was referring to a second case in which Roane is also a defendant. The federal lawsuit filed in June by Nexus Caridades on behalf of Desiree Watford of Fishersville charges Fourth Amendment and Fourteenth Amendment constitutional violations.

Roane, and a Sheriff's deputy identified as John Doe, are accused of an unlawful seizure and arrest of Watford.

Previously, Roane was a defendant along with Augusta County Sheriff Donald Smith in a $1.2 million federal lawsuit filed by Nexus. That suit, filed by Nexus Services in 2016, charged law enforcement officers with harassing and violating the constitutional rights of Nexus employees, including Donovan. Nexus, however, dropped that lawsuit in March.

Attempts to reach Augusta County Smith about the most recent lawsuiton Wednesdaywere not successful.

Read the rest here:
Augusta Sheriff's investigator sued for alleged Fourth Amendment violations - The Daily Progress

MEXICO, Mo. The Eighth Circuit Court of Appeals has revived a lawsuit in which Ron Calzone, a rancher and small businessman who lives in the country near Rolla, Missouri, is challenging a Missouri law that allows highway patrol officers to seize and search vehicles even if the officer has no reason whatsoever to believe that the vehicle or the driver are in violation of any law.

The Eighth Circuits ruling reverses a prior ruling by Judge Stephen Limbaugh, Jr., and sends the case back to Judge Limbaugh for further consideration.

On May 3, 2013, Calzone was taking his large farm truck to gather gravel for his daughters chicken coop when Corporal J.L. Keathley of the Missouri State Highway Patrol pulled him over and asked to inspect the vehicle. The officer acknowledged that he had not observed Calzone breaking the law in any way and that he had stopped Calzone simply because he did not recognize the truck or the markings on the vehicle. When Calzone protested, the trooper pointed out that state statute expressly authorizes highway patrol officers to stop almost any type of vehicle with or without probable cause to believe that the vehicle or driver is in violation of the law.

The Constitution is supposed to protect citizens against unreasonable searches and seizures, Calzone said. My truck was clearly within size limitations, the bed was empty, and in fact the truck had just passed a state inspection that very morning. So this was the very definition of an unreasonable search and seizure, and I knew that if citizens fail to stand up for their constitutional rights, they will wake up one day to find they no longer have any rights.

With help from the Freedom Center of Missouri, Calzone sued, arguing that the statute authorizing suspicionless stops violated the Fourth Amendment. The government responded that anyone driving what Missouri law defines as a commercial vehicle is part of the commercial trucking industry, and that the Fourth Amendments protections do not apply because commercial trucking is a pervasively regulated industry. Calzone pointed out that under Missouri law every half-ton pickup truck is, by definition, a commercial vehicle and that neither he nor many of the other ordinary people who regularly drive what the state calls commercial vehicles could justifiably be considered professional commercial truckers.

Judge Limbaugh initially ruled in favor of the government, but the Eighth Circuit has now reversed that decision. The case will be sent back to the federal district court to determine whether the challenged statute is being applied in a manner that complies with the Fourth Amendment.

Missouris highways and interstates are full of trucks and vans that the state defines as commercial motor vehicles, even if the drivers have never been professional commercial truckers, explained Dave Roland, the director of litigation for the Freedom Center. We are confident that the courts will conclude that ordinary drivers do not abandon their Fourth Amendment freedoms just by getting behind the wheel of a large vehicle.

Excerpt from:
Federal Court Reverses Decision That Said Missouri Troopers Can Search Trucks Without Probable Cause - Lake Expo

The Fourth Amendment has protected our right to privacy since its ratification in 1791. Thetextof the amendment reads, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, but how well do these protections hold up in the digital age?

Today, most of us are typing emails on our laptops, not scribbling a letter with a quill and inkwell. Therefore, its important to ensure our sensitive, digital communications are well-protected. Clearly, the Fourth Amendment transcends time and technological change, but some sinister players are pretending otherwise.

Currently, under theElectronic Communications Privacy Act(ECPA), the United States federal government may seize any citizens private email communicationswithout a warrant, provided they are over 180 days old. By law, these older emails are not considered privy to a reasonable expectation of privacy under the ECPAsSection 2703(a).

Even worse, the ECPA was enacted in 1986, years before email usage was even widespread. However, the 180-day rule doesnt just apply to emailsevery Americans texts, GroupMe chats, and Facebook messages are fair game too.

Its time to modernize the Fourth Amendment to protect our online communications, and bipartisanThe Email Privacy Act, re-introduced by Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO), does just that. Namely, the Email Privacy Act would require all government agencies to acquire a warrant before accessing any online communications over 180 days oldjust like any other private documents.

In the era of cloud technology, communications could be stored on enormous server, conceivably forever. More and more, our sensitive financial, relational, and personal details exist online, making their security absolutely essential.

The ECPA is problematic in other areas as well. In December of 2013, federal law enforcement sought asearch warrantfor Microsoft customers email account as a component of a criminal narcotics investigation. Microsoft complied up until a point, but there was one big problemthe actual emails were stored overseas.

Microsoft refused to turn the emails over, and was held in civil contempt by the district court. Three years later, however, the Second Circuit Court of Appeals ruled against the federal government, expressing that companies cannot be compelled to release customer emails stored outside the United States.

We conclude that 2703 of the Stored Communications Act does not authorize courts to issue and enforce against USbased service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers, the courtruled.

TheInternational Communications Privacy Act (ICPA) is one potential solution to this issue, creating, a legal framework that clarifies the ability of law enforcement to obtain electronic communication of U.S. citizens, no matter where the person or the communications are located.

Additionally, the ICPA would allow law enforcement to obtain communications from foreign nationals, in consistency with international law. Sponsored by Senators Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV), the bipartisan legislation would remedy this complex problem.

The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking amuch-needed balance in todays data-driven economy, Senator Hatchstated. Clearly, Americans can no longer be complacent about their privacy protections. In a digital age of prying eyes, the consequences of privacy violations can be costly, and long-lasting.

On June 23rd, the Department of Justiceapplied to take the Microsoft case to the Supreme Court, but Congress shouldnt wait for the court to take action. Passing the ICPA and other meaningful reform is too important to wait, when innocent Americans are being caught in the crossfire.

One way or another, its time to give the Fourth Amendment a sorely needed update.

See the original post here:
The Fourth Amendment's Digital Update - The Daily Caller

The Fourth Amendment was established in a time when privacy expectations could be articulated through a simple maxim that every mans home is his castle. In the 21st century, however, our most private information is often guarded not by walls or with a key, but by the companies Microsoft, Verizon, and the like that provide us with access to the data cloud.

In a perfect world, the technologies of today would be met with the same principles that were laid out in the Fourth Amendment by our founders. Unfortunately, that is easier said than done. Technology has added lots of complications, and we are left trying to figure out what a reasonable search is in the age of the data cloud.

Much of the doctrine of the Fourth Amendment is based on definitions that are ill-equipped for dealing with challenges in the era of cloud computing. For instance, do emails, location information, and other data and documents stored in the cloud fall within the Fourth Amendments protection of The right of the people to be secure in their persons, houses, papers, and effects?

Moreover, lack of notice to the person whose property is being searched has become a big problem in the digital era. Traditional searches of one's home or car are, as a practical matter, difficult to keep secret from the propertys owner. In contrast, absent legal protections, it is easy for the government to search electronic data that is held by a third party without the owner of the data ever finding out about it, assuming the government has the cooperation of the third party.

That is just one of several ways in which the third-party doctrine, which holds that people who voluntarily convey information to a third-party such as a bank or a telephone company have no reasonable expectation of privacy in the information conveyed, results in a gaping hole in Fourth Amendment protections in this new age. When applied to the data cloud, this relatively narrow third-party exception granted to law enforcement becomes a broad license for the government to monitor virtually all the data we transmit in our day-to-day lives.

One would have to virtually opt out of our high-tech society to evade this license. That should not be a required trade-off for enjoying the protections of the Fourth Amendment, especially when the government has lawful alternatives for achieving its law enforcement needs.

Then again, if an entire class of technology needs to be exempt from a legal doctrine, there may be a problem with the doctrine itself. At the end of the day, it may be that the third-party doctrine has become irreconcilable with the Fourth Amendment and needs to be discarded. However, it is highly unlikely that the Supreme Court will go that far anytime soon.

The ECPA Modernization Act is a laudable effort to strengthen the warrant requirements for third-party data collection and guard the Constitutional right to due process when digital property is being searched. With the modernization act pending in the Senate andUnited States v. Carpenterpending in the Supreme Court, there is new hope that our institutions will succeed in applying the founders Fourth Amendment principles to the brave new high-tech world.

The views expressed by contributors are their own and are not the views of The Hill.

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Congress must act to protect data privacy before courts make surveillance even easier - The Hill (blog)