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The bipartisan ECPA Modernization Act of 2017 introduced by Sens. Patrick LeahyPatrick LeahyDigital privacy bill still abandons probable cause for our papers Overnight Tech: Driverless car bill advances in House | Bezos now world's richest person | Tech groups hail new email privacy bill Senate panel advances measure to protect medical marijuana states MORE (D-Vt.) and Mike LeeMike LeeDigital privacy bill still abandons probable cause for our papers McConnell faces questions, but no test to his leadership Overnight Cybersecurity: Senate sends Russia sanctions bill to Trump | Senators unveil email privacy bill | Russia tried to spy on Macron with Facebook MORE (R-Utah) is a welcome correction to a legislative flaw in the Fourth Amendment protections of emails stored in the cloud. Because of a law created before the cloud came to be, emails stored longer than 18 months could be accessed by government agencies without a warrant signed by a neutral judicial officer after presentation of probable cause of unlawful activity.

Citing the most basic Fourth Amendment protocols against warrantless access to emails, the bill was introduced under the premise of fixing that flaw for these older emails in the cloud. The bill, though, still leaves open probable cause-free access to emails and other papers through use of judgeless administrative subpoenas.

A rule of construction in the ECPA Modernization Act that is entirely inconsistent with the sacrosanct warrant and probable cause provisions of the Fourth Amendment is that it shall [not] limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute.

Administrative subpoenas, also called civil investigative demands, are search writs issued by government agencies and state attorneys general or prosecutors to disgorge private papers. They may be issued without probable cause, and require no before-the-fact review by neutral judicial officers. They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.

In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after Americas colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution. The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced. These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches. Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.

The administrative subpoena regime abandons the requirement of probable cause both before issuance by the searchers themselves and in after-the-fact judicial hearings to enforce them. Unlike the general warrants under which judges determined the scope of the searches in advance, although leaving the persons, businesses, and places to be searched up to the discretion of the government searchers, administrative subpoenas may be issued based on flawed interpretations of the law and without independently verified facts indicating law may have been violated by the targets.

Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime. The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.

The Boston Globe recently reported that the American Civil Liberties Union of Massachusetts is calling out the explosion in the use of these sanctioned fishing expedition tool[s], and how some state prosecutors have refused to disclose how many they issue. This mirrors my own experience with one state attorney general who ducked a Freedom of Information Act request about the quantity she issues, claiming attorney-client privilege among other excuses not to comply.

Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment. The very premise of the ECPA Modernization Act is that government may not violate the security of private records unless a judge has issued a warrant after hearing probable cause under oath that facts indicate a law is being broken. Government officials will exploit this expressly sanctioned loophole in the bill and subpoena emails directly from their targets in this probable cause-free administrative subpoena regime. Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.

Mark J. Fitzgibbons is President of Corporate Affairs at American Target Advertising, Inc.

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

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Digital privacy bill still abandons probable cause for our papers - The Hill (blog)

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the third-party doctrine the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the courts decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenters, that had been given to them by one of Carpenters partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with specific and articulable facts showing that there are reasonable grounds to believe that records at issue are relevant and material to an ongoing criminal investigation; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes according to Carpenter, they are made in thousands of cases each year.

Investigators received several months worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenters cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Courts decision in Smith (among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a search for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not mechanically apply their earlier decisions, but should instead use a more nuanced approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenters cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so in any meaningful way, because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider his privacy interest in the information revealed by the records weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places most notably, at home where he would expect privacy.

In a friend of the court brief, the Electronic Frontier Foundation and other privacy groups echo Carpenters arguments. In particular, the groups highlight how times have changed since the courts third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.

For the federal government, this case is a straightforward one, regardless of any new technologies like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to find weak spots in their network and to determine whether roaming charges should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls a core distinction, according to the government. What Carpenters argument really boils down to, the government argues, is that law-enforcement officers could infer from his service-providers records that he was near a particular cell tower at a particular time. But, the government counters, an inference is not a search.

The federal government also pushes back against Carpenters suggestion that broader privacy concerns weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter assumed the risk that the information would be divulged to police.

Carpenters argument that cellphone records are somehow more private than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenters case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspects car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the cars movements continuously for 28 days, allowing them to pinpoint the cars location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenters phone when he was making the calls.

Carpenters case is not the Supreme Courts first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014,the justices ruled that police must obtain a warrantto search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that todays phones are based on technology nearly inconceivable just a few decades ago and are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of detailed personal facts available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, The justices return to cellphones and the Fourth Amendment: In Plain English, SCOTUSblog (Jul. 31, 2017, 10:57 AM), http://www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/

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The justices return to cellphones and the Fourth Amendment: In Plain English - SCOTUSblog (blog)

Privacy march, Washington D.C, 2013. Credit: James Bovard

U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of non-U.S. persons who are outside the U.S., even though this lawsidestepsthe Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.

How many American citizens is the government listening in on? We dont know, as the intelligence agencies told Congress they cant say just how many American citizens theyve eavesdropped on (without warrants).

Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.

Congress would probably do this too if it wasnt for the fact that theyve recently learned their privacy is also at stake. Recent unmaskings show that even a congressmans conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didnt do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.

We cannot live in fear of our own intelligence community, said Sen. Rand Paul (R-KY). They have such power to suck up every bit of every transmission, every communication we ever made. We cant just have them willy-nilly releasing that to the public.

In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), arent so keen about what this law can do to them. Theyve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges.

Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.

All of this is very new and confusing to our politicians. But, as fiction can gaze just beyond the headlines to show us where we are going and how we might keep our freedom in this changing world, my novel Kill Big Brother takes this plot to its dramatic end. What I found while researching and writing the book is there are ways to keep our intelligence agencies strong enough to protect us while keeping our freedom.

This begins with enforcing a change in mindset. Too often our intelligence agencies, as law enforcement will, have their eyes so fixed on the problemsterrorism, ransomware wielded by criminal syndicatesthey lose sight of the freedom they are supposed to be protecting.

So what should Congress do with Section 702 of the FISA Amendments Act?

First, they shouldnt make it permanent law, as Congress needs to revisit this issue periodically as events and technology change.

Next, Congress should require the intelligence agencies to report by specified dates how many U.S. citizens have been listened to or have had their emails viewed as a result of this provision in the lawand not just general numbers, but real data. The law sunsets in December, so Congress should use this deadline to pressure the intelligence community to get these answers now.

Congress should then update the law by setting up a legal apparatus that will help to quickly, in this modern world, give the NSA and more the ability to get approval or to, in some cases, get approval within a certain time period after the fact for listening in on communications that might include U.S. citizens. Yes, this means stripping away the NSAs ability to listen away with no checks or balances from Congress or the courts. The Fourth Amendment protections need to be respected. If technology makes it possible for the NSA to listen in on conversations,then the NSA, with all of its vast resources, can propose ways for technology to help create a fast approval and oversight process.

Civil libertarians shouldnt forget that U.S. intelligence agencies have an almost impossible task. They have to find terrorists and others who are plotting to do us harm in an age when encryption and other technologies allow even unsophisticated criminals to hide their communications. But then, history is also a teacher heresimply empowering secretive government organizations can lead to some undesirable places.

Also, encryption and other technologies have become an important part of modern commerce. There is no turning back the clock. What it comes down to is that good police work is called for, not broad new powers for a Big Brother state.

Few Americans now know that under Section 702 the FISA Amendments Act the government now collects millions of communications annually from American citizens, according to research done by The Washington Post. Part of the way the NSA does this is by temporarily copying internet traffic going in and out of the U.S. As a result, they are copying and potentially searching emails between journalists and their sources, communications protected by attorney-client privilege, and lawful conversations elected officials are having with foreigners.

Just imagine if a new Edward Snowden leaked this data, information that currently can be used in domestic criminal and civil proceedings, without a warrant. Our right to communicate privately, via Fourth Amendment protections, is paramount to our freedom; also, the First Amendment right to free speech is dampened by this lack of privacy. The U.S. intelligence agencies should be reminded that telling us to give up what they are supposed to be protecting also kills our liberty.

Frank Miniter is the author ofKill Big Brother, a novel that shows how we can keep our freedom in this digital age.

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We Can't Live in Fear of Our Own Intelligence Community - The American Conservative

Congress should sunset any extension of the intelligence communitys dubious electronic surveillance authority to intercept, store, and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until December 31, 2017.

Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statutes effectiveness is doubtful; the governments compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.

All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond December 31, 2017.

Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.

The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the United States Court of Appeals decision in Microsoft Corp. v. United States.

The governments technical capabilities for intercepting, storing, and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to insure against a horse-and-buggy statute governing in an age of interstate highways.

Another sunset for 702 is also prudent because of the governments professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of United States citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.

The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the preemption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant. NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sakean illicit government objective.

The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017 FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised very serious constitutional questions. These chronic violations also argue against any permanent extension of section 702.

Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage, or other crime as a predicate for invading their communications privacy.

The United States Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Courts gives imprimatur. Caution is the order of the day when skating close to the Constitutions edge.

In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.

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Sunset any Extension of Electronic Surveillance Authority - HuffPost

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal WisBar All things considered, Blackman's consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment, Abrahamson wrote.

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal - WisBar