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A newly released court opinion from the secretive Foreign Intelligence Surveillance Court (FISC) shows that for years the NSA improperly and perhaps illegally surveilled Americans. The court order triggered the surprise announcement two weeks ago that the agency would be severely scaling back its domestic surveillance and destroying previously collected data on Americans.

Thursday, the Department of Justice released the 99-page court opinion from last month that ordered the National Security Agency to delete much of its surveillance on American people, which was collected improperly and in potential violation of the Fourth Amendment. The DOJ released the opinion as part of a 2015 plan to be more transparent.

The NSA collected data about Americans if they even mentioned a foreign target.

The opinion is a rebuke of many of the NSA's surveillance collection practices under Section 702 of the Foreign Intelligence Surveillance Act, the powers of which were expanded under the US Patriot Act. According to the opinionparts of which are redactedthe NSA improperly collected untold numbers of "multi-communications transactions" (MCTs) as they were in transit around the internet. The NSA is intentionally vague about what MCTs are, but they are believed to be groups of emails, metadata, screenshots of your inbox, and still-classified types of digital information (here's the best primer explaining MCTs).

Under Section 702, the NSA is allowed to collect domestic communication if Americans are communicating directly with a "foreign intelligence target" as approved by the FISC court. According to the opinion, the NSA had been collecting information if a foreign target was merely mentioned in the communication.

"Upstream collection could acquire an entire MCT for which the active user was a nontarget and that mostly pertained to non-targets, merely because a single discrete communication within the MCT was to, from or contained a reference to a tasked selector," Judge Rosemary Collyer wrote. "Such acquisitions could take place even if the non-target active user was a U.S. person in the United States and the MCT contained a large number of domestic communications that did not pertain to the foreign intelligence target."

Collyer's opinionwhich is worth reading in full if you're at all interested in privacycontains a number of other important details:

Earlier this month, the NSA announced that it would stop this type of collection and would delete data that was collected improperly. Now we know that at least part of that announcement was made because the FISC court ordered the agency to, because the NSA could not prove that the surveillance was legal under the Fourth Amendment. The court order says that the NSA must delete this information within one year.

'Compliance problems' also led to collection of data about Americans.

According to the order, in 2016, the FISC asked the NSA to prove that Section 702 collection involving Americans was legal under the Fourth Amendment. It also asked the US government for internal reviews about the program, which it did not initially disclose: "The Court ascribed the government's failure to disclose those reviews at the October 4, 2016 hearing to an institutional 'lack of candor' on NSA's part and emphasized that 'this is a very serious Fourth Amendment issue,' Collyer wrote.

Finally, the court gave the US government a January 31, 2017 deadline to prove the constitutionality of its program; the government asked for an extension to May 26. The court granted a shorter extension to April 28. Rather than prove the constitutionality of the program, the court opinion noted that the NSA instead had "chosen a new course:" The destruction of improperly collected data and the narrowing of its collection practices.

The NSA will continue collecting data under Section 702 of the Patriot Act, but the FISC court ordered that the NSA must "limit all acquisitions to communications to or from an authorized 702 target" in order to comply with the Fourth Amendment. The NSA will also no longer be able to share 702 surveillance with the FBI, CIA, or other intelligence agencies unless they follow specific data minimization procedures.

The court order gives us more background and specifics on what we already knew: Much of the NSA's surveillance of Americans was unconstitutional, and the agency regularly collected things it wasn't supposed to.

See the original post here:
This Is the Secret Court Order That Forced the NSA to Delete the Data It Collected About You - Motherboard

In this excerpt from our new Digital Privacy initiative, Jim Harper from the Competitive Enterprise Institute critiques current Fourth Amendment doctrine and calls on courts to adopt a new approach that hews closely to the Fourth Amendments text.

You can read the full text of Harpers white paper at our special section, A Twenty-First Century Framework for Digital Privacy, at https://constitutioncenter.org/digital-privacy

Stare decisis is the valued judicial practice of extracting the underlying principle from precedent, the ratio decidendi, and applying it to present cases. But what happens to the principle behind a prescient dissentthe ratio dissensi, if you willwhen a majoritys decision later proves wrong? Almost ninety years ago, an understated Supreme Court Justice left crumbs of insight in a dissent that may help solve the riddle of applying the Fourth Amendment, particularly to modern communications and data. His thinking can help construct a more complete, reliable, and truly juridical method for administering the Fourth Amendment. Advocates and courts should look to his prescient ratio dissensi.

Pity Justice Butler. Next to contemporaries such as Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Benjamin Cardozo, Pierce Butler occupies second-tier status in historys assessment of Supreme Court justices. A conservative Democrat put forward by a Republican president, Butler was a controversial nominee for the Court. One of his Minnesota home-state senators opposed him, as did progressive lion Robert LaFollette, Sr., a Republican from Wisconsin. The opposite end of the ideological spectrum did Butler no favors: the Ku Klux Klan opposed his nomination because he was a Catholic.

Justice Butler wrote more than 300 opinions in his sixteen years of Supreme Court service, but few stand out today. He is best remembered as one of the four horsemen who lost their constitutional stand against President Franklin Delano Roosevelts expansive New Deal programs. But time has vindicated some of Justice Butlers work on the Court, including notable dissents.

Butler alone rejected Oliver Wendell Holmes, Jr.s now notorious reasoning in Buck v. Bell, for example. Allowing forced sterilization of a woman, Holmes wrote coldly for the majority: Three generations of imbeciles are enough. The Nazis use of eugenics the next decade cast more than a little pall over the practice, and Skinner v. Oklahoma effectively ended forced sterilization in 1942. Score one for the conscience of Justice Butler.

Likewise, in Palko v. Connecticut, Butler alone disagreed with Justice Cardozos ruling that the Constitutions protection against double jeopardy did not apply to the states. The Court reversed itself on this question three decades later. Score another.

Butler was a legal technician, and his areas of focus were not what generally capture public and scholarly attention. His approach to opinion writing stressed simplicity and minimalism, according to a history by David R. Stras, now a Minnesota Supreme Court justice himself, and it was rare indeed when he used rhetorical flourishes to argue a point. So it is not surprising that Justice Butlers dissent in Olmstead v. United States has remained obscure behind the fanfare of his brother Louis Brandeiss dissent. But time may yet vindicate Justice Butlers reasoning, especially given its usefulness for applying the Fourth Amendment to the digital world.

Olmstead, of course, was the 1928 case in which the Court found that a Fourth Amendment search had not occurred when government agents wiretapped the telephones of suspected bootleggers. Justice Brandeis, co-author of a Harvard Law Review article called The Right to Privacy forty years earlier, inveighed against the ruling using powerful and persuasive language. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness, he wrote:

They recognized the significance of mans spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men.

Posterity has favored Brandeiss passion. Commentators and scholars today still quote and muse over his formulation of the right to be let alone. They explore how that notion might be implemented to preserve the values that the Framers held dear.

But Brandeiss words did not found a sustaining rationale for Fourth Amendment protection. The proof is in the eating of the pudding: Modern Fourth Amendment jurisprudence is a muddle, and it is sorely challenged by advances in information technology. This is particularly poignant because Brandeis foresaw the surveillance capabilities enabled by todays information and communications technologies. Ways may someday be developed, he wrote, by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

The case that reversed Olmstead, of course, was Katz v. United States. In Katz, thirty-nine years later, Justice Harlan shared his sense of how the Constitution controls government access to private communications in his solo concurrence: My understanding, he wrote, is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.

Since then, courts have analyzed whether defendants have had a reasonable expectation of privacy in information or things. Under Justice Harlans concurrence, if not the Katz majoritys rationale, the defeat of a reasonable expectation of privacy signals a constitutional search generally requiring a warrant.

That doctrine has not worked. Courts rarely follow the full analysis Justice Harlans formulation suggests. They rarely inquire into a defendants actual (subjective) expectation of privacy, for example, or how it was exhibited. The second half of the test requires judges to use their own views on privacy as a proxy for objectivity, though they are neither public opinion researchers nor sociologists. Against litigants importuning about privacy, courts after Katz have found as often as not that the Fourth Amendment does not protect the security of sensitive and revealing information.

In Smith v. Maryland, for example, one of the leading communications privacy cases, the Supreme Court found that placement of a pen register on a suspects phone line without a warrant did not violate the Fourth Amendment. [W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial, Justice Blackmun wrote. Walking through the influences that would suppress expectations of privacy in phone-dialing, and none that would support it, he said, It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

A Court without Justice Brandeiss passion for privacy is evidently quite free to undercut it. So in United States v. Karo, government agents had arranged with an informant to surreptitiously install a radio beeper in a container. They used the presence of the beeper in the container over a period of several days to locate it at three different residences and in the driveway of a fourth, to locate the container in a pair of self-service storage facilities, and also to locate it in transitall the while unable to suffer the inconvenience of getting a warrant. The Court did not examine whether all this warrantless beeper-tracking was reasonable. It gave the once-over to Karos expectation of privacy and found his (presumed) feelings unreasonable.

More recently, the reasonable expectation of privacy test produced a ruling that government agents examination of a stopped vehicle with a drug-sniffing dog is not a Fourth Amendment search. It is hard to think of a word better than search for such highly focused analysis of whether certain particulates exist in the air. Some cases certainly have maintained the protection the people have from inquisitive government agents, but the right to be let alone has not fared all that well when privacy and expectations thereof have been the locus of the Courts decision-making.

If Justice Brandeiss passion did not lay the groundwork for sound administration of a strong Fourth Amendment right, perhaps Justice Butlers Olmstead dissent could. His challenge to the majority decision eschewed feelings, instead examining the legal status of telephone conversations:

The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence.

The communications belong to the parties between whom they pass. It is a fascinatingand very differentway of thinking about what happened in Olmstead. Justice Butler would have protected Olmsteads calls from warrantless wiretapping not because it is part of human essence to have communications remain private, as Justice Brandeis said, but because peoples conversations are not the governments to listen to.

Justice Butlers formulation holds the seeds of an alternative way to administer the Fourth Amendment. It is technical and value-free, but it offers the hope of better Fourth Amendment administration because it is more susceptible to sound application than current Fourth Amendment doctrine. Its use would provide consistent and reliable protection for Americans liberties and a stable rule for law enforcement in a time of technological change.

Courts in Fourth Amendment cases should decline to invoke doctrine that requires them to make broad social pronouncements. Rather, they should apply the text of the Amendment and general legal principles as literally as possible to the facts of cases. That is not always easy, and it requires new and deeper analysis of what it means to search and to seize. It also requires fuller awareness of property and contract rights as they apply to communications and data. But it is a more methodical judicial exercise than applying reasonable expectations doctrine, and it would achieve the current Courts goal of preserving that degree of privacy against government that existed when the Fourth Amendment was adopted.Applying the law to the facts is the better way to administer the Fourth Amendment.

Read more at: https://constitutioncenter.org/digital-privacy/The-Fourth-Amendment-in-the-Digital-Age

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Originally posted here:
The Fourth Amendment in the Digital Age - Constitution Daily (blog)

The federal government thinks it should be able to use one warrant to hack into an untold number of computers located anywhere in the world. But EFF and others continue to make the case that the Fourth Amendment prohibits this type of blanket warrant. And courts are starting to listen.

Last week, EFF pressed its case against these broad and unconstitutional warrants in arguments before a federal court of appeals in Boston, Massachusetts. As we spelled out in a brief filed earlier this year, these warrants fail to satisfy the Fourth Amendments basic safeguards.

The case, U.S. v. Levin, is one of hundreds of prosecutions resulting from the FBIs 2015 seizure and operation of a child pornography site Playpen. While running the site, the FBI used malwareor a Network Investigative Technique (NIT), as they euphemistically call itto infect computers used to visit the site and then identify those visitors. Based on a single warrant, the FBI ended up hacking into nearly 9,000 computers, located in at least 26 different states, and over 100 countries around the world.

But thats unconstitutional. One warrant cannot allow law enforcement to hack into thousands of computers wherever they are in the world. As law enforcement defended these blanket hacking warrants and pushed for federal rule changes to allow themand as Congress stood by and idly let this rule change go into effectweve been fighting in court to make sure that the Fourth Amendments protections dont disappear as law enforcement begins to rely on hacking more and more.

And there are signs that courts are beginning to recognize the threats to privacy these warrants pose. Earlier this year, a federal magistrate judge in Minnesota found [PDF] that the warrant the FBI relied on in the Playpen casethe same warrant we were arguing against in Levinviolated the Fourth Amendment.

In the February report, Magistrate Judge Franklin Noel described how the governments NIT fails the Fourth Amendments requirement that warrants describe a particular place to be searched, agreeing with arguments weve made to courts in other Playpen prosecutions. The warrant in this case fails to satisfy that requirement because, at the time the warrant was issued, it is not possible to identify, with an specificity, which computers, out of all of the computers on earth, might be searched pursuant to this warrant, Noel wrote.

He also explained how the warrant essentially flips the Fourth Amendments particularity requirement on its head, searching and then identifying specific computers instead of identifying specific computers and then searching them. Only with [information gathered through the use of malware] could the Government begin to describe with any particularity the computers to be searched; however, at that point, the computer had already been searched.

Its encouraging that courts are beginning to agree with arguments from us and others that these warrants far exceed the Fourth Amendments limits on government searches.

As the Playpen prosecutions begin to work their way up to the courts of appeals, the stakes become higher. The decisions these courts reach will likely shape the contours of our constitutional protections for years to come. Weve filed briefs in every appeal so far, and well continue to make the case that unfamiliar technology and unsavory crimes cant justify dispensing with the Fourth Amendments requirements altogether.

See the article here:
The Fight Against General Warrants to Hack Rages On - EFF

PostedMay 1, 2017 10:04 AM

UpdatedMay 1, 2017 11:29 AM

ByTimothy P. ONeill

Pretend you are taking the SAT exam. Here is a fill-in-blank question from the verbal section:

A man is walking alone on a sidewalk in a high-crime neighborhood. Two police officers are in a car approaching from the opposite direction. The car stops. One officer rolls down the window and begins to speak to the man: Come here, the officer _______.

Which word best completes the sentence?

A. commands

B. orders

C. asks

If you answered either A or B, you are still in the running for that college scholarship you are after.

If you answered C, you have probably just blown your chance for a perfect score on the verbal section. But you may have just secured yourself a seat on the Illinois Appellate Court. To understand why, take a look at People v. Ramsey Qurash, 2017 IL App (1st) 143412 (decided March 16, 2017).

The facts of the case match our SAT question above. Chicago police officer Stephen Gregory testified that after he said Come here, Qurash dropped a large white bottle into the snow. Gregory got out of the car, picked up the bottle and saw it contained a leafy substance that appeared to be marijuana. He arrested Qurash and found more contraband on his person. Qurash was charged with several drug offenses.

The majority opinion characterizes the issue in the case as [D]eceptively simple: [A]s a matter of law, do the words come here, uttered by a police officer to a citizen, result in a seizure. If it does result in a seizure, then the drugs must all be suppressed since Officer Gregory lacked either probable cause or reasonable suspicion at the moment he said those two words. The [1]st District decided the issue by characterizing Come here as a mere request that did not result in a seizure, and thus affirmed the conviction.

However, Justice David Ellis filed a dissent contending that no reasonable person would have interpreted Come here as a mere offer he could refuse. Qurash did not consent to an officers request; rather, he acquiesced to the officers command. And because the officer lacked any suspicion whatsoever when he issued that command, the seizure violated the Fourth Amendment and the conviction must be reversed.

Preliminarily, both the majority and the dissent agree that the trial courts holding that the officers words did not constitute a seizure was a question of fact deserving deferential review.

I am not so sure. True, the trial courts finding that the officer said Come here is a question of historical fact that deserves deferential review. And whether or not a defendant has voluntarily consented to an officers request for a search or seizure is an issue reviewed deferentially in Illinois. People v. West, 2017 ILL. App. (3d) 130802.

But the issue of whether a seizure has occurred is a question of law that merits de novo review. In fact, as noted above, the majority even began its analysis by describing the issue in the case as a matter of law. (Slip, 5) A seizure occurs when a reasonable person would believe he is not free to leave. U.S. v Mendenhall, 446 U.S. 544 (1980) (opinion of Stewart, J.).

Deciding how a reasonable person would react to Come here is an objective test resulting in a finding of law that merits de novo review.

Yet even under a deferential standard, I believe the dissent is correct that a seizure occurred when the officer said Come here and that the trial court was clearly erroneous in holding otherwise.

It is worth quoting Ellis at length: Those two words, alone, are not a request. Nor could they plausibly be construed as a question (Come here?) To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, Come here, any reasonable person would believe that he was required to comply with that directive that he was not free to leave.

The dissent does something else worth noting. It exhibits an awareness that an appellate court decision is not a one-off; it does not exist in a vacuum. An appellate decision in a common-law system must of necessity be Janus-faced: It must decide the case that has already occurred in the past with the realization that its decision will have impact on people in the future.

This leads Ellis to say I fear that the majoritys holding will have the unintended effect of encouraging individuals not to comply with a police officers request, or order, to come here. Under the majoritys reasoning, the best way for citizens to protect their [F]ourth [A]mendment rights is to ignore the police in that context because if they complied even though not required to do so, they would be consenting to police questioning without any [F]ourth [A]mendment protections at all.

And Ellis goes on to note the dilemma the court has created for a pedestrian in the future. For if she refuses to comply and simply continues walking and if the officer continues to say Come here a person could find herself accused of resisting or obstructing a lawful order of the police. Ellis cites People v Synnott for the proposition that merely refusing a police officers lawful order to move can constitute interference with the officer in the discharge of his or her duty. 349 Ill. App. 3d 223, 229 (2004).

Elliss dissent makes this case worth a second look. For, as he notes, Come here is not a question. Come here is not a request. Come here is an order.

Read more here:
Fourth Amendment trouble brewing - Chicago Daily Law Bulletin

As John Elwood noted recently at SCOTUSblog, the Supreme Court has relisted a set of pending cert petitions on whether the Fourth Amendment protects historical cell-site data. The relisting means that the justices didnt turn down the petitions at the usual time. They are holding the petitions, deferring a decision on whether to grant them. Thats usually a sign of some interest at the court. How much interest there is, we dont yet know.

I have mixed views on whether the court should take these cases. On one hand, theres no split. Every circuit court and state supreme court to rule on the issue has ruled that the Fourth Amendment does not protect historical cell-site data. The cert petitions claim a circuit split with the U.S. Court of Appeals for the 3rd Circuit, but I dont think thats right. The 3rd Circuit merely speculated about the possibility of Fourth Amendment protection in the course of making a statutory ruling.

A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions. It might help the justices in a future Supreme Court decision to have the benefit of circuit court rulings trying to answer those questions.

On the other hand, theres a plausible argument that the court should take the cases now without a split. That argument can draw on several different points. First, whether the Fourth Amendment protects historical cell site data is a hugely important question. The Supreme Court should step in and rule on it an some point. Second, while there is no split, there are certainly lots of opinions on the other side. Most obviously, there were 4th Circuit and 11th Circuit panel decisions, both later overturned en banc, that could provide the food for thought on the other side (even if rather unusual food for thought) that a split would ordinarily help provide.

Third, this issue is coming up so often, in almost every state and circuit, that a split is likely to emerge eventually. Fourth, the technology seems relatively stable, permitting the justices to weigh the need for equilibrium-adjustment. And fifth, the Davis good faith exception would apply down the road where a circuit has already ruled, which may counsel toward granting cert sooner to ensure that there are real stakes in the litigation when the Supreme Court decides it.

Of course, as a Fourth Amendment nerd I think it would be great if the court took these cases. The more Fourth Amendment cases on the docket, the better! As for whether they will, stay tuned as always.

Original post:
Will the Supreme Court agree to hear the Fourth Amendment cell-site cases? (And should they?) - Washington Post