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The Fourth Amendment to the U.S. Constitution requires the government to obtain a warrant before it can conduct a search and seizure of private property. To get a warrant, the federal government must have probable cause, which means it must have good reason to suspect the property being searched contains evidence of a crime.

But do these Fourth Amendment requirements apply to property held overseas, in other countries? In the 2016 case of Microsoft v U.S., the Second Circuit Court of Appeals held that the Fourth Amendment does apply to the search of property stored by and for U.S. citizens overseas.

That case involved a narcotics investigation. The federal government sought and obtained a warrant against Microsoft under the federal Stored Communications Act for the emails of a Microsoft customer. Microsoft, however, only provided data that was stored on servers in the U.S.

But the emails the investigators mostly wanted were stored on servers in Dublin, Ireland. The District Court consequently held Microsoft in civil contempt for failing to comply with the warrant as to those overseas emails.

On appeal, however, the Second Circuit reversed, holding that the Stored Communications Act did not apply to emails stored overseas. The Act used the term warrant, which historically did not apply to the search and seizure of property held by U.S. citizens abroad. The Second Circuit held that the primary focus of the Act was to protect the privacy of U.S. citizens, not to protect law enforcement access, which is why it used the term warrant.

The Court said,

[W]e think [Congress] used the term warrant in the Act to require pre-disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States. It did not abandon the instruments territorial limitations and other constitutional requirements. The application of the Act that the government proposes interpreting warrant to require a service provider to retrieve material from beyond the borders of the United States would require us to disregard the presumption against extraterritoriality that the Supreme Court restated and emphasized in Morrison.and, just recently, in RJR Nabisco, Inc.We are not at liberty to do so.

The Court added further,

The importance of the warrant as an instrument by which the power of government is exercised and constrained is reflected by its prominent appearance in the Fourth Amendment.Warrants issued in accordance with the Fourth Amendment identify discrete objects and places, and restrict the governments ability to act beyond the warrants purview of particular note here, outside of the place identified.As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States.

Next month, Congress is expected to conduct a hearing on the issue and one worry is that Congress will try to moot the case by passing legislation extending warrants beyond the territory of the United States. This hearing will explore the idea of whether the data produced by an individual is the property of the person, the company or the government. Obviously, a warrant, based on probable cause, allows the government to get data under circumstances of a criminal investigation and some investigations that touch on national security, but traditionally a warrant only can be served within the boundaries of the United States, unless a foreign nation consents and helps to effectuate the warrant.

If the federal government were to push a change, it could lead to data localization and a destruction of the business model that allows American-based cloud computing to exist today. Those concerned about the civil liberties protected by warrants should be concerned and keep a close eye on Congress as this debate moves forward.

Peter Ferrara served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. He also served as General Counsel of the American Civil Rights Union (ACRU) from the organizations founding in 1998 until 2015.

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Does The Fourth Amendment Apply Overseas? | The Daily Caller - Daily Caller

The Owner-Operator Independent Drivers Assn. is taking its opposition to the electronic logging device mandate to the highest court in the land. The small business trucking group this week filed a petition with the Supreme Court of the United States, arguing that the U.S. Court of Appeals for the Seventh Circuit was wrong when it ruled that the e-log requirement does not violate Fourth Amendment protections against illegal search and seizure. The deadline for compliance with the ELD rule is Dec. 18.

We believe that the Seventh Circuit erred in allowing warrantless searches of 3.5 million drivers, designed specifically to uncover evidence of criminal activity, said Jim Johnston, president and CEO of OOIDA. In doing so, the Seventh Circuit decision splits directly with rulings by both the Fifth and Eleventh Circuit Courts. This is also the first time that the pervasively regulated industry exception has been applied directly to the search of an individual to serve the ordinary needs of criminal law enforcement.

OOIDA contends that the pervasively regulated industry exception to the warrant requirement, the basis of the Seventh Circuits denial, does not extend beyond the search of business premises. Additionally, for such an exception and warrantless search, the Supreme Court imposed strict guidelinesguidelines which the ELD rule does not specifically address.

In short, according to OOIDA, an ELD requirement is the equivalent of warrantless surveillance of truckers.

The ELD Rule does far more than authorize administrative inspections of business premises. HOS regulations are directed toward the personal conduct of drivers, the petition states. ELDs monitor and record driver conduct, including driver activity and location, twenty-four hours per day, seven days per week, more expansively and invasively than paper logbooks currently do.

The association will also continue to pursue the issue on the congressional side as part of its Knock Out Bad Regs campaign and will continue to communicate with the Trump administration about this and other regulations, Johnson said.

We were very disappointed and surprised by the ruling against us by the Seventh Circuit Court of Appeals, Johnston said. That same court had ruled in our favor on a previous lawsuit of ours on this same issue. said Johnston.

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OOIDA appeals to Supreme Court | ELD mandate violates 4th ... - Fleet Owner

In Florida v. Jardines (2013), the U.S. Supreme Court held that a front porch is a Fourth Amendment protected area but that there is an implied license allowing the police to walk up to the front door and knock in at least some cases. If the police are just coming to talk to the homeowner, the court concluded, thats within the implied license and no Fourth Amendment search occurs. Homeowners implicitly consent to people coming to knock on the door and talk to them; thats why they have doorbells. On the other hand, if the police are bringing a drug sniffing dog to smell for drugs, that is outside the implied license. People dont implicitly consent to people coming to search them, and bringing a drug-sniffing dog to the front porch is a clear objective sign that the officers intend to search them. Coming to the front porch with a drug-sniffing dog is therefore a search, and the police ordinarily cant do that without a warrant.

Now consider this question: How does Jardines apply when properties have no trespassing signs posted? The problem is identifying the test for determining whether a posted sign revokes the implied license to approach the door and knock. To my mind, the key is that the basic nature of Jardiness implied license test is ambiguous. On one hand, you can construe that test as asking a factual question akin to implied consent: Did the person at the home impliedly welcome visitors to enter the curtilage? Alternatively, you can construe the test as asking a general social norms question: As a matter of law, do residents of homes generally grant an implied license to come up to the front door and knock? Jardines isnt clear on which understanding of the implied license is correct.

In light of the uncertainty, I thought I would point out the latest decision on the Fourth Amendment implications of no trespassing signs: State v. Christensen, from the Tennessee Supreme Court. The case has a pretty through discussion of how different courts have treated the issue. Heres how the court summarizes the question, with paragraph breaks added and some citations omitted:

Given the Supreme Courts recognition that the knocker on the front door is treated as an invitation or license to attempt an entry, Jardines, 133 S. Ct. at 1415 [emphasis added; quotation marks omitted], it is axiomatic that a homeowner may take actions to revoke or otherwise limit that invitation or license. As elucidated by the United States District Court for the Middle District of Florida [in United States v. Holmes, 143 F. Supp. 3d 1252, 1259 (M.D. Fla. 2015):

[T]he license granted to enter property to knock on a persons door is not unlimited. Rather, it extends unless and until the homeowner provides express orders to the contrary. In determining the scope of the implied license, and therefore whether a police officers approach to the front door was permissible under the Fourth Amendment, courts ask whether a reasonable person could do as the police did. Factors that may aid in the analysis include the appearance of the property, whether entry might cause a resident alarm, what ordinary visitors would be expected to do, and what a reasonably respectful citizen would be expected to do.

The question before us in this case is whether posting No Trespassing signs near an unobstructed driveway is an express order sufficient to revoke or limit the invitation/license such that a police officer may not legitimately approach the residence via the driveway in order to conduct a warrantless knock-and-talk encounter. That is, did the Defendants signs turn the investigators entry onto his property into an intrusion subject to constitutional protections?

The court goes over the very large body of case law on the question, much of it pre-Jardines and some of it post-Jardines, which reflects a range of somewhat different legal standards. The court ends up adopting a standard offered by Chief Judge Timothy Tymkovich in a concurring opinion in United States v. Carloss, 818 F.3d 988 (10th Cir. 2016), a case that has drawn considerable attention recently because of the dissent filed by now-Justice Gorsuch. The standard adopted is this: under the totality of the circumstances, would an objectively reasonable person conclude that entry onto the Defendants driveway was categorically barred?

The court concludes that under this test, a no trespassing sign ordinarily doesnt have much Fourth Amendment significance:

In short, a homeowner who posts a No Trespassing sign is simply making explicit what the law already recognizes: that persons entering onto another persons land must have a legitimate reason for doing so or risk being held civilly, or perhaps even criminally, liable for trespass. Consequently, as set forth above, a knock-and-talk conducted within constitutional parameters is a legitimate reason for police officers to enter the curtilage of a house via a driveway that is obstructed by nothing more than several No Trespassing signs. For this reason, we disagree with the dissent that a No Trespassing sign should be of particular significance to law enforcement officers in communicating that they may need to obtain a warrant before entering the property. Officers engaging in legitimate police business will conclude, correctly, that they are not engaging in a trespass when they approach a front door to conduct a knock-and-talk. We also emphasize that the occupant of a residence is under no obligation to open a door when knocked upon by a police officer who holds no warrant.

Justice Lee dissented. From the dissent:

Mr. Christensen sufficiently revoked the publics implied license to enter his property by posting multiple No Trespassing and Private Property signs near the entrance to his driveway. A person need not have a law degree or an understanding of the various legal nuances of trespass discussed by the Court to know that these signs meant visitors were not welcome. Ms. Tammy Atkins, who visited homes in the area to share her faith, understood the meaning of the signs. She testified there were several No Trespassing signs near Mr. Christensens driveway, and she did not go to houses that had No Trespassing signs. . . .

Mr. Christensen did not just post one No Trespassing sign he posted multiple signs near the entrance to his property that were clear, unambiguous, and obvious to anyone approaching his driveway. These signs adequately communicated Mr. Christensens intent to revoke the implied license to enter his property. Under the facts of this case, law enforcement officers should have heeded the signs and taken the appropriate steps to obtain a search warrant.

I dont have particular views as to which approach is right, but its an interesting question that may be headed up to the U.S. Supreme Court before too long.

I should also flag that law professors Andrew Ferguson and Stephen Henderson have had some fun with the issue and proposed some possible signs for homeowners to post to maximize their Fourth Amendment rights.

As always, stay tuned.

See original here:
The Fourth Amendment and no trespassing signs - Washington Post

As mentioned in a priorblog post, the U.S. Customs and Border Protection (CBP) can conduct searches of individualsdepartingthe United States, a fact that many are not aware of. In fact, the rule that failure to declare monetary instruments in amounts of or over $10,000 can result in its seizure is applicable to departure and CBP has confiscated funds from individuals who did not make the proper declaration as recently as two months ago after conducting an ad hoc inspection in a departure lounge at Newark Liberty Airport.

Well, what if CBP confiscates an I-Phone from an individual about to depart the United States, at an airport, without a warrant, and the individual is convicted of criminal charges partially based upon information obtained from that I-Phone. That is the question raised inU.S. v. Hamza Kolsuzin the U.S. Court of Appeals for the Fourth Circuit.

We discussed in a priorblog posthow CBP relies on the Border Search Exception cited inCarroll v. United States 267 U.S. 132 (1925)concluding that it is reasonable to conduct such border searches without a warrant given national security interests. In addition, individuals have a lesser expectation of privacy when they seek entry into the United States at a port of entry.

However, the intrusive nature of confiscating a smartphone is quite different, and this issue is addressed with reference to searches in the interior of the United States inRiley v. California, 134 S.Ct. 2473 (2014). The Court indicated that smart phones are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of human autonomy. The Court found that given how cell phones contained in many instances the digital sum total of ones papers and effects, police searches would be unreasonable unless a warrant had been obtained.

The Hamza Kolsuz case addresses the question whether an end run around the Fourth Amendment can be made when the confiscation takes place at a border, in this case, while the individual was seeking to depart the United States.

In the interim, CBP continues to conduct searches and under appropriate circumstances, confiscate or detains laptops and smart phones as they deem necessary.

In CBP Directive Number 3340-049 dated August 20, 2009 and reviewed August 2012, U.S. Customs and Border Protection outlines its policy with regard to handling sensitive information.

CBP indicates that it might confront materials that appear to be legal in nature or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. CBP takes the position that such materials may not necessarily be exempt from a Border search, but consultation with a senior officer may be necessary.

It addresses other sensitive information, such as medical records and work-related information carried by journalists, which should be handled in accordance with any applicable federal law and CBP policy.

It also addresses business or commercial information which may be sensitive or governed by the Trade Secrets Act, Privacy Act, and other laws.

At the end of the day, you will have little opportunity to discuss, debate or persuade while an inspection for admission to the United States is conducted, and you therefore may want to take necessary precautions as we described in our recentblog post.

The litigation in the Hamza case may eventually bring some clarity as CBP will be pressed and challenged as to this very sensitive issue.

The Knight First Amendment Institute of Columbia University went to court to enforce a request under the Freedom of Information Act, to provide statistics and policy records with reference to how many electronic devices CBP had been searched or confiscated at the border.

Finding the right balance between privacy rights and the security needs of the nation will continue at our ports of entry to be an elusive goal.

2017 Proskauer Rose LLP.

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Immigration Fact and Fiction: What is Left of Fourth Amendment ... - The National Law Review

The Fourth Amendment

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides 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 idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

What the Fourth Amendment Fundamentally Requires by Barry Friedman

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

For example, sometimes the Justices say that there is a strong preference for government agents to obtain warrants, and that searches without warrants are presumptively invalid. At other times they say warrants are unnecessary, and the only requirement is that searches be reasonable. At times the Justices say probable cause is required to support a search; at others they say probable cause is not an irreducible minimum.

This is your Fourth Amendment. It describes [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. It is important for each American to focus on some basics and decideseparate and apart from what the Justices saywhat this vital amendment means.

People say that the Fourth Amendment protects privacy, but that trivializes it. In this world you give up a lot of privacy, whether you wish to or not. Internet cookies, or data stored in web browsers, are just one example. But the Internet companies are not going to come take you away. The government might. What the Fourth Amendment protects is the right of the people to be secure. The Fourth Amendment is the means of keeping the government out of our lives and our property unless it has good justification.

In evaluating how the Fourth Amendment should be interpreted, it is essential to bear in mind the vast changes in policing since the time it was ratified. Whereas policing once was reactive, tasked with identifying and catching criminals, today it has become proactive and is based in deterrence. Before, policing was mostly based on suspicion, it was aimed at people for whom there was cause to believe they had violated or were about to violate the law. Today, policing is aimed at all of usfrom red light cameras to bulk data collection by intelligence agencies to airport security.

There are some basic principles that should govern searches and seizures.

First, no member of the Executive branch should be permitted to intervene in our lives without the say-so of at least one other branch. This is fundamental, and all the more important when that Executive actor engages in surveillance of the citizenry and can use force and coercion against them.

Second, a central purpose of the Fourth Amendment is preventing arbitrary or unjustified intrusions into the lives and property of citizens.

In light of these basic principles, certain interpretations of the Fourth Amendment follow:

No search or seizure is reasonable if it is not based on either legislative authorization or pursuant to rules that have some form of democratic say in their making. The police can write rulesall other agencies of executive government dobut absent a critical need for secrecy those rules should be public and responsive to public wishes.

Second, warrants are to be preferred. Policing agencies are mission-oriented. We want them to bethey have a vital role protecting public safety. But because they are mission-oriented, warrants should be obtained in advance of searching whenever possible so that a neutral judge can assess the need to intrude on peoples lives.

Third, we should distinguish between searches aimed at suspects and those aimed at society in general. When there is a particular suspect, the protections of a warrant and probable cause apply. But those protections make no sense when we are all the target of policing. In the latter instance the most important protection is that policing not discriminate among us. For example, at airport security all must be screened the same unless and until there is suspicioncause to single someone out.

Finally, often todays policing singles out a particular group. Examples include profiling (based on race, religion, or something else) or subjecting only workers in some agencies to drug tests. When policing is group-based, the proper clause of the Constitution to govern is the Equal Protection Clause. When discriminatory searching or seizing occurs, the government should have to prove two things: that the group it is selecting for unfavorable treatment truly is more likely to contain people worthy of the governments attention, and that the incidence of problematic behavior is sufficiently great in that group to justify burdening everyone. Otherwise, the government should go back to either searching individuals based on suspicion, or search us all.

The Future of the Fourth Amendment by Orin Kerr

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

The Fourth Amendment was written over two hundred years ago. But todays crimes often involve computers and the Internet, requiring the police to collect digital evidence and analyze it to solve crimes.

The major question is, how much power should the police have to collect this data? What is an unreasonable search and seizure on the Internet?

Consider the example of a Facebook account. If you log in to Facebook, your use of the account sends a tremendous amount of information to Facebook. Facebook keeps records of everything. What you post, what messages you send, what pictures you like, even what pages you view. Facebook gets it all, and it keeps records of everything you do. Now imagine that the police come to Facebook and want records of a particular user. The police think the suspect used Facebook to commit the crime or shared evidence of the crime using the site. Maybe the suspect was cyberstalking and harassing a victim on Facebook. Or maybe the suspect is a drug dealer who was exchanging messages with another drug dealer planning a future crime. Or perhaps the suspect committed a burglary, and he posted pictures of the burglary for all of his Facebook friends to see.

Heres the hard question: What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment search or seizure for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?

The courts have only begun to answer these questions, and it will be up to future courts to figure out what the Fourth Amendment requires. As more people spend much of their lives online, the stakes of answering these questions correctly becomes higher and higher.

In my view, courts should try to answer these questions by translating the traditional protections of the Fourth Amendment from the physical world to the networked world. In the physical world, the Fourth Amendment strikes a balance. The government is free to do many things without constitutional oversight. The police can watch people in the public street or watch a suspect in a public place. They can follow a car as it drives down the street. On the other hand, the police need cause to stop people, and they need a warrant to enter private places like private homes.

The goal for interpreting the Fourth Amendment should be to strike that same balance in the online setting. Just like in the physical world, the police should be able to collect some evidence without restriction to ensure that they can investigate crimes. And just like in the physical world, there should be limits on what the government can do to ensure that the police do not infringe upon important civil liberties.

A second important area is the future of the exclusionary rule, the rule that evidence unconstitutionally obtained cannot be used in court. The history of the exclusionary rule is a history of change. In the 1960s and 1970s, the Supreme Court dramatically expanded the exclusionary rule. Since the 1980s, however, the Supreme Court has cut back on when the exclusionary rule applies.

The major disagreement is over whether and how the exclusionary rule should apply when the police violate the Fourth Amendment, but do so in good faith, such as when the law is unclear or the violation is only technical. In the last decade, a majority of the Justices have expanded the good faith exception to the exclusionary rule. A central question is whether the good faith exception will continue to expand, and if so, how far.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

Excerpt from:
Amendment IV - The United States Constitution