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CONCORD, N.H. (Mar.10, 2017) The New Hampshire House has passeda bill that would ban material support or resources towarrantless federal spying.The vote was 199-153.

Rep. Neal Kurk and Rep. Carol McGuire, along with two cosponsors, introduced House Bill 171 (HB171). The legislation would prohibit the state or its political subdivisions from assisting a federal agency in the collection of electronic data without a warrant.

Neither the state nor its political subdivisions shall assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a persons electronic data or metadata, without that persons informed consent, or without a warrant issued by a judge and based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a judicially-recognized exception to the warrant requirement of the Fourth Amendment to the Unites States Constitution.

On Feb. 15, the full House gave HB171 initial approval with an ought to pass recommendation by a 199-153 vote. It was then referredback to the House Criminal Justice and Public Safety Committee. Under House rules, bills with certain subject matter are required to go through a 2nd committee for approval, however the Chair has the discretion to decline that 2nd referral.

Today, House House Criminal Justice and Public Safety ChairDavidWelch(r) exercised that prerogative per House Rule 46(f), and the original Feb. 15 vote stands as final House passage of the bill.

PRACTICAL EFFECT

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB171 wouldhinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in New Hampshire, it would have to proceed without state or local assistance. That would likely prove problematic.

The feds share and tap into vast amounts of information gathered at the state and local level through a programknown as the information sharing environment or ISE. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

State and local law enforcement agencies regularly providesurveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA stingrays), automated license plate readers (ALPRs), drones, facial recognition systems, and even smart or advanced power meters in homes.

Passage of HB171 would set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB171would also prohibit what NSA former Chief Technical Director William Binney called the countrys greatest threat since the Civil War.

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases rarely involve national security issues. Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is the most threatening situation to our constitutional republic since the Civil War, Binney said.

NSA FACILITIES

The original definition of material support or resources included providing tangible support such as money, goods, and materials and also less concrete support, such as personnel and training. Section 805 of the PATRIOT Act expanded the definition to include expert advice or assistance.

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in New Hampshire.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a virtual shutdown of the agency. Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB171. By passing this legislation, New Hampshire would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.

LEGAL BASIS

HB171 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. Theanti-commandeering doctrineis based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

NEXT UP

California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency requests state assistance in data collection if there exists actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information. Although that law will need further steps to put into practical effect, it set a strong foundation that HB171 would expand on for New Hampshire.

The legislation willnow move to the Senate for further consideration.

Read the original here:
New Hampshire House Passes Bill Banning Support for Warrantless Federal Spying Programs - Tenth Amendment Center (blog)

History >> US Government The Fourth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It protects people from unlawful searches and seizures. This means that the police can't search you or your house without a warrant or probable cause.

From the Constitution

Here is the text of the Fourth Amendment from the Constitution:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

Reasons for the Fourth Amendment

The Fourth Amendment came about because of the actions of British tax collectors before the Revolutionary War. They would use general warrants to enter and search any house they wanted without needing evidence of wrongdoing. The Founding Fathers wanted to protect people from this sort of invasion of privacy from the government.

What is "searches and seizures"?

A "search" under the Fourth Amendment is when a public employee (like a police officer) looks at something that is considered "private". It typically takes two things in order for something to be considered "private":

1) the citizen thought it was private and it would not be able to be viewed by the public (For example, something inside a house would be private, something on the driveway could be viewed by anyone).

2) these expectations of privacy are realistic (It wouldn't be realistic to expect something on your driveway to be private).

When someone is "seized" they are not free to leave (like being arrested and placed in jail). When something is "seized" it cannot be taken back (like the police taking your wallet and not giving it back).

Judges Warrant

In order to conduct a legal "search" or "seizure" the police must have a warrant written by a judge. To get this warrant they must present evidence to the judge that some criminal activity has taken place. This assures that the police can't enter a person's home or arrest a person without evidence that has been reviewed by a judge.

Probable Cause

The Fourth Amendment also states that there must be "probable cause." This means that there is enough evidence to show that a crime has likely been committed. The police must have this evidence before any arrest or search. Any evidence found during the search does not count as probable cause.

How does this work in public schools?

The requirements for search and seizure are slightly different in the public schools. The Supreme Court has said that school officials and police officers can search a student if they have "reasonable suspicion" that a crime has occurred. This is less of a requirement than "probable cause."

Some Searches Are Allowed

There are certain places and situations where people are searched or stopped without a warrant. Consider the airport where everyone who flies is searched. When you agree to fly, you give up some of your Fourth Amendment rights. Another example is a roadblock that tests for drunk drivers. When you drive on public roads you give up some of your Fourth Amendment rights. These searches are generally accepted by the citizens for their own safety and protection.

Interesting Facts about the Fourth Amendment

To learn more about the United States government:

Works Cited

History >> US Government

Go here to see the original:
US Government for Kids: Fourth Amendment

The American Civil Liberties Union is moving to quash a police warrant granted to search data on a Facebook page of a group protesting the Dakota Access pipeline.

The American Civil Liberties Unionfiled a motion Wednesday to strike what it described as a far-reaching and unconstitutional request by the Whatcom County Sheriffs Department in Bellingham, Wash., to search the Facebook page of the Bellingham #NODAPL Coalition.

The coalition and other individuals across the country have engaged in protests against the Trump administrations plan to move forward on construction of the pipeline. The group is said to have been involved in a protest at Bellinghams U.S. Bank in early February.

According to the ACLU, the founder of the Facebook page received an email from Facebook on March 3 with a copy of the warrant issued to search the site. The message, cited by the ACLU in its filing, also indicated that a motion would need to be filed by March 8 to quash the warrant and that Facebook would otherwise respond to the legal process. The ACLU has posted a copy of the warrant on its website.

The motion argues that the warrant is unconstitutional because it permits a broad search of private electronic data protected by the First and Fourth Amendments.

The warrant at issue here is deeply problematic and runs afoul of constitutional protections.Political speech and the freedom to engage in political activity without being subjected to undue government scrutiny are at the heart of the First Amendment, La Rond Baker, staff attorney at the ACLU of Washington, said in a statement issued late Wednesday.

Further, the Fourth Amendment prohibits the government from performing broad fishing expeditions into private affairs. And seizing information from Facebook accounts simply because they are associated with protests of the government violates these core constitutional principles, Baker said.

The Whatcom County Sheriffs Department did not respond to a request for comment by press time.

The First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without state monitoring or interference. The warrant here intrudes on all of these rights and would chill both political speech and association at the heart of the First Amendment, the motion states.

The warrant also fails to meet the basic Fourth Amendment requirement that warrants be particularized, not least because it potentially extends to any member of the public, supportive or not, who interacted with the group."

This post was updated at 2:06 p.m.

More:
ACLU challenges warrant to search Facebook page of Dakota Access opponents - The Hill

Imagine this: the government, for reasons you don't know, thinks you're a spy. You go on vacation and, while you're away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don't find any evidence that you're a spy, but they find something elseevidence of another, totally unrelated crime. You're arrested, charged, and ultimately convicted, yet you're never allowed to see what prompted the agents to think you were a spy in the first place.

Sounds like something from dystopian fiction, right? Yet it's exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub's home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, andcriticallymaking wholesale copies of his hard drives.

Agents were authorized by the secret Foreign Intelligence Surveillance Court ("FISC") to search for evidence that Gartenlaub was spying for the Chinese government. Theres only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBIs forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

There are plenty of troubling aspects to Gartenlaubs prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBIs searches of Gartenlaubs electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

Heres why: when agents copied and searched Gartenlaubs devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like plain viewan exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldnt have to ignore the dead body lying in the living room. But the way plain view works in the digital contextespecially forensic computer searchesis not at all clear. How far can cops rummage around our computers for the evidence theyre authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computerwhich the Fourth Amendment allows and a general search for evidence of criminal activitywhich the Fourth Amendment prohibits?

Our electronic devices contain decades' worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homesor, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn't turn into the type of general rummaging the Fourth Amendment was designed to prevent.

In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBIs search of Gartenlaubs hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcements electronic search powers and in protecting our right to privacy in the digital age.

Read more from the original source:
Secret Court Orders Aren't Blank Checks for General Electronic Searches - EFF

The good news is the Supreme Court's Riley decision forces law enforcement to obtain warrants before searching cell phones. The bad news, apparently, is everything else. To begin with, particularity remains a problem. As the Supreme Court pointed out in its decision, people's entire lives are contained in their cell phones. When searching for what's relevant to the suspected criminal activity, the government is pretty much free to dig through these "lives" to uncover what it needs to move forward with prosecution.

The lack of strict parameters (perhaps an impossibility given the nature of digital communications/data) leads to fishing expeditions operating under the cover of Fourth Amendment adherence. There's no way to prevent trolling for evidence of unrelated criminal activity. The only recourse is to challenge it after it happens. Sometimes the courts find the government has gone too far. Other times, courts say the evidence would have been "inevitably discovered" in the course of the search and prevent it from being suppressed.

Then there are decisions like the one reached by a federal court in South Dakota -- one that says just because one law enforcement agency deployed a warrant to image the contents of a cell phone doesn't mean other law enforcement agencies can take a look at it without obtaining a warrant of their own.

Volokh Conspiracy's Orin Kerr snagged the decision and added some brief analysis. A cell phone seized by local police was also apparently of interest to the federal Bureau of Alcohol, Tobacco and Firearms (ATF), which was running its own investigation on the same subject. The local cops were looking for counterfeiting evidence, while the ATF was interested in firearms-related evidence.

The locals obtained a warrant and imaged the phone's contents. In the course of its investigation, the ATF pulled up the suspect's file and noticed the recent arrest and seizure of the suspect's cell phone. The Huron (SD) police department helpfully informed the ATF that it had a copy of the cell phone's contents that the ATF could take a look at. The ATF accepted the offer, but did not perform the crucial step of obtaining a warrant. That misstep cost the ATF its evidence.

According to the government, all evidence seized -- even if unrelated to the investigation at hand -- should be accessible to any law enforcement agency without obtaining another warrant. Because teamwork. The court disagrees [PDF], pointing out that the government's asking the court to grant it an open-ended fishing license for all electronic devices seized with a warrant:

The government argues that this conclusion is impractical and is contrary to the nature of police investigations and collaborative law enforcement among different agencies. The governments position, however, overlooks the ultimate touchstone of the Fourth Amendment: reasonableness. Riley, 134 S. Ct. at 2482.

According to the government, law enforcement agencies can permanently save all unresponsive data collected from a cell phone after a search for future prosecutions on unrelated charges. If the governments argument is taken to its natural conclusion, then this opens the door to pretextual searches of a persons cell phone for evidence of other crimes. Under the governments view, law enforcement officers could get a warrant to search an individuals cell phone for minor infractions and then use the data to prosecute felony crimes. No limit would be placed on the governments use or retention of unresponsive cell phone data collected under a valid warrant.

The court also disagrees with the government's plain view defense. In order for the "plain view" exception to work, there has to be justification for the "view" itself. In this case, the ATF had no justification for viewing the contents of a cell phone seized by another agency for an unrelated investigation.

The government also argued that the exclusionary rule shouldn't be applied to the evidence it obtained without a warrant. The court again disagrees, pointing out that the government will suffer minimally from the exclusion of evidence it apparently wasn't planning to introduce anyway. In addition, a failure to enforce the exclusionary rule in cases like these would just result in more governmental fishing trips.

Here, the cost of applying the exclusionary rule is minimized because the evidence is peripheral in nature and not directly related to the firearms offense. The governments actions also suggest the evidence is not necessary for a conviction. Prior to Agent Fairs search of the iPhone data, the government was ready to proceed with trial on January 3, 2017. Minutes before voir dire, the parties addressed a late discovery issue, and the court granted a continuance. If the issue had not come before the court, the government would have tried its case, and the iPhone data would not have been used.

In contrast, the benefits of applying the exclusionary rule in this case are clear. If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated chargeserasing the protections specifically contemplated in Riley.

All well and good as far as it goes for upholding Fourth Amendment protections, but as Orin Kerr points out, the court seems to be balancing the government's losses against the plaintiff's rights before arriving at this conclusion.

As I have written before, I dont think it works to do this kind of case-by-case cost/benefit balancing when applying exclusionary rule precedents. But if the evidence isnt important, the government isnt going to file an appeal of the decision granting the motion to suppress. This decision is likely the end of the road in terms of judicial review of the Fourth Amendment issue.

They don't call the exclusionary rule a RULE for no reason. When rights are violated, exclusion is the proper remedy. Whether or not it damages the government's prosecution should be a distant secondary concern.

See the original post here:
Federal Court Tells ATF It Can't Just Help Itself To Cell Phone Data ... - Techdirt