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Press Release | August 14, 2017

Reporters Committee for Freedom of the Press and a coalition of 19 other media organizations support requiring the government to obtain warrants for access to cellphone location records

The government should not be able to obtain cellphone location records without first getting a warrant, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. The current ruling makes it too easy for the government to track a persons every move through their cellphone, which is especially worrisome if the location records in question belong to a journalist. This endangers journalists ability to gather information and keep the public informed without the risk of being easily and routinely surveilled.

The coalition brief argues that cellphone location records paint an intimate and comprehensive picture of where individuals go, and thus the people and places they associate with.

According to the brief, a journalists cellphone location data can disclose particularly sensitive details about the journalistic process: It can reveal the stories a journalist is working on before they are published, where a journalist went to gather information for those stories, and the identity of a journalists sourcesExposure of sources and journalistic methods can put sources jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.

The brief also argues that if the government can easily and routinely access detailed information about a persons movements without a warrant, it threatens the ability to freely engage in activities protected by the First Amendment like newsgathering, which now often relies on use of a cellphone.

Cellphones have become a mobile newsroom and a necessary newsgathering tool for journalists. Unfortunately, theres no way to use a cellphone without sharing some location data with a service provider, said Brown. Allowing the government to easily access cellphone location records that paint a picture of where a journalist goes and possibly even who they meet with chills reporter-source relationships, threatens newsgathering, and ultimately harms the flow of information to the public.

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Fourth Amendment protects against warrantless seizure of cellphone location records, amicus brief argues - Reporters Committee for Freedom of the...

If youre following along closely, youll recognize a strong similarity between the brief we filed Friday with the U.S. Supreme Courtin a criminal case called Carpenter v. United States and our argument to a District Court in California two weeks ago that the IRS should not be able to access Bitcoin users data willy-nilly. The theme running through both is that people have property rights in data about themselves that is allocated by contract between them and their service providers. Thats true whether the service being provided is cryptocurrency trading or cellular telecommunications.

In an article I published with the National Constitution Center earlier this year, I laid out a fully consistent way to apply the Fourth Amendment in the digital era. The Supreme Court has struggled with constitutional protections for communications and data, but there doesnt need to be different doctrine for physical things and for digital things. Data can be seized under the Fourth Amendment just like people and cars. Data can be searched just like homes.

In a methodical Fourth Amendment analysis, the next question is who can object to those seizures and searches. Today, various third-party services have control of the data, and some think that closes the question, but it doesnt. The right to possession is only one of the property rights. Those contracts have allocated to consumers the right to exclude othersthat is, to keep strangers away from data about them. The data may sit with a telecom provider, a crypto exchange, a cloud service, or an ISP, but our privacy comes from denying them any right to share data other than with parties agreed to in advance under conditions agreed to in advance.

When possession of data is with a service provider but the right to exclude and other rights are held by the consumer, the consumer has a right against unreasonable searches and seizures. In all but the narrowest of cases involving exigency and similar circumstances, that means the government has to go get a warrant.

Getting courts to recognize property rights in data is a big effort, and itll take a lot of work over a lot of years. But it is essential work because it will determine the shape of our future world.

Theres a path into the future where the Internet revolution causes the individual to become a pawn of governments and corporationsworking together, as often as not, to determine many, many dimensions of how we live and earn. Down the other path is a future where property rights in data make us even more free and autonomous in the digital realm then we are in our homes, neighborhoods, and marketplaces. Heres to charting our course down that second path.

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Defending 4th Amendment Privacy Protections for Digital Property - Competitive Enterprise Institute (blog)

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For nearly 40 years,[1] this Court and courts below have struggled with using a sociological method for interpreting the Fourth Amendment in difficult cases. They have asked whether government agents disturbed a reasonable expectation of privacy, reasoning backward from the answer to whether or not a search offensive to the Constitution has occurred.

That methodology has been difficult for courts to apply consistently, and in recent years this Court has used it less and less often as a decision rule. This Court should shed that sociological approach and adopt a juridical method for applying the Fourth Amendment. It should assess the facts of the case in terms of the law, encouraging lower courts to do the same.

Specifically, the Court should examine the following questions:

Using that simple and familiar legal methodology would allow this Court to address directly the challenging questions this case presents, including: When does a seizure of data occur? When does a search of data occur? When is data a constitutional paper or effect? Who has property rights in data sufficient to assert Fourth Amendment rights in it?

The governments compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search. The records were in relevant part the property of Messrs. Carpenter and Sanders, who enjoyed contractual rights and regulatory protections making them so. And digital documents are best treated as constitutional papers or effects.

That leaves the question whether it was reasonable for the government to seize and search them. There is a presumption in favor of the warrant requirement suggested by the text of the Fourth Amendment, and it is confirmed by this Courts precedents. Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have gotten one.

The interests of Messrs. Carpenter and Sanders are not paramount to amici, of course. But as the importance of digital communications and data grows in society, the imperative to straightforwardly address their legal and constitutional status rises.

Without breaking from precedents, this Court can revise Fourth Amendment practice and determine when and how communications and data fit into the Fourth Amendments categories of protected things. Doing so would permit courts below to address seizures and searches of communications and data forthrightly, confidently assessing the reasonableness of such government action. Here, the result of that analysis calls for the Court to find in favor of the petitioner.

Read the full brief here.

[1] Katz v. United States, 389 U.S. 347 (1967), was decided on December 18, 1967.

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Brief of Amici Curiae of CEI, Cato and Reason Foundation in Carpenter v. US - Competitive Enterprise Institute (blog)

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.

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Augusta Sheriff's investigator sued for alleged Fourth Amendment violations - The Daily Progress