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It ought to bother us that in the case of most of the recent terror attacks in the United States, law enforcement knew the people involved.

Omar Mateen, who killed 53 in a gay bar in Orlando, had been questioned twice after people from his mosque told the FBI he had become dangerously radicalized. Russia had warned the FBI and CIA to beware of the Tsarnaev brothers who bombed the Boston Marathon.

We knew him. We had investigated him. We had put him in jail, Kentucky Sen. Rand PaulRand PaulOvernight Finance: Ryan lays out timeline for ObamaCare, tax reform | Dow hits 20K | GOP weighs how to pay for border wall Trump review exposes GOP divide on torture Rand Paul criticizes alternative GOP health plan MORE noted. Yet we did not closely monitor him after all of this, largely because we were too busy with searching the entire countrys electronic communications.

Paul raised points privacy advocates have wrestled with for some time. Why didnt we realize these were the people who posed the most serious threats? How can we help law enforcement determine which of all the suspected terrorists it monitors is most likely to launch an attack? Are we watching closely enough or perhaps too closely? Would we notice more if we watched less?

These questions will be at the forefront in coming weeks when Congress takes up legislation to update the Electronic Communications Privacy Act. Such laws always attempt to balance legitimate security needs against Americans right to privacy in their own affairs. In this case, it seems Americas security would be enhanced if it gave Americans back their right to email in private.

The previous two presidential administrations viewed the 1986 law as a license to snoop into whole classes of emails without a warrant as long as the email is 180 days old or more. And the results have not been edifying.

This random searching for the right combination of words to trigger further surveillance measures is itself an imprecise science, and one National Security Agency blogger estimated that reading all of Americas email generates 10,000 misfires for every hit. Not for nothing has National Law Review named this problem the top privacy issue of 2017.

Additionally, unfettered access to private emails does not seem to comport with the Fourth Amendment protections against search and seizure without a duly sworn warrant.

Congress is attempting to fix the problem by restoring the Fourth Amendment. The Email Privacy Act, just re-introduced in the new Congress by Reps. Kevin YoderKevin YoderCongress must restore 4th Amendment protections for email privacy Overnight Cybersecurity: Russia report fallout Overnight Tech: Trump meets Alibaba founder | Uber to make some data public | GOP Lawmakers tapped for key tech panels MORE (R-Kansas) and Jared Polis (D-Colo.) would force the government to obtain an individualized warrant before searching anyones email.

Similar legislation, with more than 300 co-sponsors, passed the House last April by a 419-0 vote. It stalled in the Senate after controversial amendments were added, but Sens. Chris CoonsChris CoonsCongress must restore 4th Amendment protections for email privacy Senators move to nix Trump's ban on funding NGOs that provide abortions Senate confirms Trump's UN ambassador MORE, D-Del., and Orrin HatchOrrin HatchCongress must restore 4th Amendment protections for email privacy GOP lawmakers set for packed schedule at Philly retreat Overnight Healthcare: Wounded Price heads toward confirmation | 'Death spiral' debate heats up | House panel to look at ObamaCare replacement bills MORE, R-Utah, plan to reintroduce it in this Congress.

An update for ECPA has long been in order. After spending two decades in the technology sector where things evolve at light speed, it is hard to believe that were starting another year with laws that were written for how computing worked in the 1980s, said Rep. Suzan DelBene (D-Wash.), a former Microsoft VP.

But the impetus for action by Congress is a case in which the government ordered Microsoft to turn over emails stored on a server in Ireland. Although the courts ruled in Microsofts favor, the DOJ appealed the decision. This week, a federal appeals court affirmed that law enforcement cannot demand emails stored outside the country.

The Senate legislation, called the International Communications Privacy Act, would codify the court decision and require a specific search warrant for turning over emails to the government. It also would create a clear legal framework for law enforcement to obtain electronic communications of people in the United States, regardless of where those communications are housed and would allow law enforcement to obtain electronic communications relating to foreign nationals in some circumstances.

The legislation also would reform the Mutual Legal Assistance Treaty process and establish that data providers should not be subject to data localization requirements, which Hatch says are incompatible with the speed, innovation and borderless nature of the Internet.

Mary Jo White, the head of the Securities and Exchange Commission, asked senators to consider exempting the SEC from the warrant requirement because it cant get the FBI to request warrants on its behalf and it sometimes conducts civil investigations with no offsetting criminal investigation and thus has no opportunity to request warrants.

But an exception for the SEC means an exception for the IRS and a few other agencies, and thus should be opposed.

This is a situation where Congress seems largely on the same page, but no one is sure what President Trump will do with such legislation. He has vowed to cut regulation but has expressed support for providing strong anti-terrorism tools to foreign and domestic police.

But a general search not only is precisely what the Constitution forbids, it creates a lot of useless leads law enforcement has to follow. It will keep us safer from both overweening government and enemies abroad if Congress can get reform over the finish line.

Brian McNicoll is a former director of communications for the House Committee on Oversight and Government Reform and a former senior writer for the conservative Heritage Foundation.

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

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Congress must restore 4th Amendment protections for email privacy - The Hill (blog)

It should come as no surprise to law enforcement officers that civil rights lawsuits directed against patrol officers, their superior officers and their municipalities regarding TASER deployment continue to be filed in multiple federal courts of appeal across America. Some of the most recent cases are worthy of examination and close scrutiny. By analyzing these cases, we can glean constitutional guidance concerning when the use of a TASER is lawfully appropriate and when it is constitutionally excessive.

In Yates v. Terry, the Fourth Circuit Court of Appeals affirmed a lower court ruling against a North Charleston, South Carolina officer who was accused of using excessive force by means of a TASER against Brian Yates. Yates passed the officer, who was in his police cruiser in a stationary position. The officer pulled out, activated his lights and pulled Yates over in a gas station parking lot. The case does not make clear why the officer pulled Yates over.

The officer approached Yates and requested his drivers license. Yates responded that he did not have his license, but did have his military identification (Yates was a sergeant in the Army). The officer opened Yates car door, forced Yates out of the car and told him to place his hands on the car. Yates complied and was told he was under arrest. Yates asked for an explanation, but none was provided. Yates turned his head to the left and the officer deployed his TASER in the probe mode. The court explained, In probe mode, two probes are fired from a distance, attached to electrical wires, to lodge in the skin of the subject.

The TASER delivers a five-second cycle of electricity (50,000 volts) designed to override the central nervous system, disabling the subject. Yates fell to the ground, and the TASER was deployed again while Yates remained on the ground. While still on the ground, Yates told his brother who was standing nearby to call the officers commanding officer and reached for his cell phone. He was TASERed a third time.

Yates was handcuffed when other officers arrived and charged with excessive noise violation, no license in his possession and disorderly conduct. All charges were subsequently dismissed. Yates sued the officer and alleged that the use of the TASER in these circumstances amounted to excessive force. Both the Federal District Court Judge and the Fourth Circuit Court of Appeals agreed with Yates that excessive force was used.

The Fourth Circuit examined the factors articulated by the United States Supreme Court in Graham v. Connor. These include the severity of the crime, the immediacy of the threat to officers or others and whether the suspect was resisting arrest or attempting to flee. The Fourth Circuit noted that the infractions that Yates was arrested for were at best minor and non-violent. The Fourth Circuit ruled that Yates represented no threat to the officers safety at the time the TASER was first deployed or during the second and third TASER deployments. The Fourth Circuit also determined that Yates was not resisting or attempting to flee during the TASER deployments.

The Fourth Circuit explained that deploying a TASER is a serious use of force that is designed to inflict a painful and frightening blow, (Armstrong v. Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016)). The Fourth Circuit ruled that a TASER may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk that is reasonably likely to be cured by using the TASER. Here there was no immediate safety risk in play. Moreover, the offense was nonviolent and there was no resistance or attempt to flee.

In Lash v. Lemke, U.S. Park Police entered an encampment of the so-called Occupy D.C. movement in Washington D.C. to warn protestors that they would be enforcing anti-camping regulations the next day. Their entrance was met with hostility. Ryan Lash, a protestor, challenged the officers right to enter; used profanity and tore down signs the officers had posted. Lash walked away and the officers followed. Lash loudly protested the fact that officers were following him and continued to walk away and proclaim his innocence.

An officer seized Lashs arms from the rear. Lash pulled his arms away and held them in front of his body. He continued to walk away. The officer once again sought to restrain Lash from behind. Lash again pulled his arms away. Two officers grabbed each of his arms, but Lash resisted and continued to struggle. A third officer deployed her TASER. Lash fell to the ground and was handcuffed. He was subsequently charged with disorderly conduct.

Lash sued the officer who deployed the TASER for excessive force and her supervisor for failure to supervise. The Federal District Court ruled in favor of the officers and the Federal Court of Appeals for the D.C. Circuit affirmed. In reaching its decision, the Circuit Court had the advantage of viewing videotape of Lashs arrest. With the help of the videotape, the court quickly rejected Lashs claims that he submitted to arrest as soon as he understood that the officers were trying to arrest him. The court observed, No matter what Lash claims now, we know to a certainty that he resisted arrest because we can see him doing so.

The court examined existing case law and concluded that the TASER use in this instance did not violate clearly established Fourth Amendment law. The court explained that there is no clearly established right for a suspect who actively resists and refuses to be handcuffed to be free from a Taser application, (Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015)). The court cited numerous other Federal Circuit opinions to support its conclusion, specifically, Abbott v. Sangamon County, Ill., 705 F.3d 706, 727 (7th Cir. 2013); Hagans v. Franklin County Sheriffs Office, 695 F.3d 505, 509-510 (6th Cir. 2012); DeBoise v. Taser International Inc., 760 F.3d 892, 897 (8th Cir. 2014); Buchanan v. Gulfport Police Dept., 530 Fed. Appx 307, 314 (5th Cir. 2013).

In Meyers v. Baltimore County, officers were called to a domestic disturbance which involved Ryan Meyers hitting his father and brother and taking refuge inside his home. Officers were informed upon arrival that Ryan was bipolar and had mental health problems. Officers could see Ryan inside the residence holding a baseball bat. Officers tried to talk him into surrendering without success. They were able to enter the home with the assistance of the family. Ryan was ordered to drop the bat but refused. One officer deployed his TASER to no effect. Ryan took two steps toward the police with the bat. The TASER was deployed a second time and Ryan dropped the bat but continued forward. A third deployment of the TASER resulted in Ryan dropping to the floor. Three officers sat on his back. At this point, Ryan was TASERed a fourth time. The officer then switched the TASER into stun mode and applied it six more times during a little more than a minute. Ryan entered into cardiac arrest and died. An excessive force lawsuit followed.

The Fourth Circuit Court of Appeals ruled that the first three deployments of the TASER were constitutionally reasonable. The court explained that at the time of these deployments, Ryan was acting erratically, was holding a baseball bat that he did not relinquish until after he received the second shock and was advancing toward the officers until the third shock caused him to fall to the ground. The court determined that he posed an immediate threat to the officers safety and was actively resisting arrest.

Conversely, the court ruled that the remaining seven TASER deployments amounted to excessive force in violation of the Fourth Amendment. The court explained that after Ryan fell to the floor, he was no longer actively resisting arrest, and did not pose a continuing threat to the officers safety, yet, Officer TASERed Ryan until he was unconscious. This, in the courts view, was an unnecessary, gratuitous, and disproportionate [use of] force to seize a secured, unarmed citizen.

This review establishes some basic principles regarding the use of the TASER:

John M. Mike Callahan Jr. served in the field of law enforcement for 44 years. He was appointed as a Special Agent with the United States Naval Criminal Investigative Service, appointed as a Special Agent with the FBI and advanced to the position of Chief Division Counsel and handled all legal matters for those FBI Divisions. After his FBI career, Mr. Callahan was hired by the Massachusetts Office of the Inspector General and served for several years as a Deputy Inspector General in charge of the Investigations Division before retiring in July 2012.

Contact Mike Callahan

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What cops need to know about TASER use, the Fourth Amendment ... - Police News

by

January 23, 2017, 5:00 AM EST January 23, 2017, 2:48 PM EST

Microsoft Corp.s effort to halt the FBIs so-called sneak-and-peek searches of e-mails may ride on whether its allowed to defend its customers constitutional rights.

The judge who will decide whether the case can go ahead had told the companys lawyers to be ready to address earlier rulings that undercut their arguments. Calling the issue a dilemma in court Monday, the judge said he will issue a written ruling later. At stake is a key element of Microsofts challenge to the U.S. practice of secretly accessing customer data stored in the cloud, including e-mail.

Microsoft drew support from tech leaders includingApple Inc., Google and Amazon.com Inc. when it sued the U.S. Justice Department in April. They say the very future of mobile and cloud computing is at risk if customers cant trust that their data will remain private. The federal law allowing searches goes far beyond any necessary limits and infringes users Fourth Amendment rights against unlawful search and seizure and their First Amendment guarantee of free speech, the companies contend.

The Justice Department argues it needs such digital tools to help fight increasingly sophisticated criminals and terrorists who are savvy at using technology to communicate and hide their tracks. Disclosing the searches would undermine investigations and put Americans at risk, they argue. A decision for the U.S. would give an early victory to President Donald Trump, who said during his campaign that he would compel technology companies to cooperate.

The government argues that Microsoft lacks the ability to sue -- or standing -- to protect customer privacy.

Standing has been a barrier in cases that seek to vindicate peoples privacy rights, said Jennifer Granick, a StanfordLaw School professor. Its a serious issue in conducting constitutional litigation, and this case is no different.

Four court decisions listed by U.S. District Judge James Robart in Seattle all reached the same conclusion -- Fourth Amendment protections can only be cited by individuals, and not vicariously by third parties. The most recent was a 2014 U.S. Supreme Court ruling that the family of a driver who was shot and killed by police after a high-speed chase couldnt invoke that right on his behalf related to a lawsuit over his death.

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The current case squarely presents a situation in which the constitutional rights of persons who are not immediately before the court could not be effectively vindicated except through an appropriate representative before the court, the company said in a filing Sunday.

The industrys push against government intrusion into customers private information began in the wake of Edward Snowdens 2013 disclosures about covert data collection that put them all on the defensive.

For more on the history of the privacy vs. security debate, click here

Microsoft saidwhen it filed its lawsuit that federal courts had issued almost 2,600 secrecy orders barring it from disclosing government warrants for access to private e-mail accounts. It said more than two-thirds of those orders have no fixed end date, meaning the company can never tell customers about them, even after an investigation is completed.

The Redmond, Washington-based company concedes there may be times when the government is justified in seeking a gag order to prevent customers under investigation from tampering with evidence or harming another person. Still, the statute is too broad and sets too low of a standard for secrecy, Microsoft contends.

The Electronic Frontier Foundation, a privacy group supporting Microsoft in the case, fears a ruling that the company cant sue could mean no one will ever have the right to file a data privacy lawsuit under the Fourth Amendment. The people whose privacy might be violated will never find out about the searches, said Andrew Crocker, a lawyer for the group.

We obviously think that providers should be able to raise the rights of their customers, Crocker said. Otherwise youre cutting customers out of the equation when the government comes to companies with these secret gag orders."

The case is Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538, U.S. District Court, Western District of Washington (Seattle).

Read more from the original source:
Microsoft Asserts Clients' Rights in FBI E-Mail Searches Fight ... - Bloomberg

Its not a good idea to have incriminating information stored on your PSN account (or at all) as its not protected by the Fourth Amendment. A Kansas judge recently ruled that Sony can take the information without a warrant as it wasnt unreasonable search and seizure. This came up during a court case regarding child pornography where Michael Stratton, who went by the PSN handle of Susan_14, messaged multiple users asking if they were interested in child pornography.

After being reported to Sony several times for these infractions, Sony decided to view his PSN data. After doing so, they found several images of child pornography that was downloaded by Stratton and sent to other users. Afterwards, Sony shared the information with the National Center for Missing and Exploited Children, who then contacted the FBI. This led to Stratton getting arrested, and his PlayStation 3 seized after a warrant was given.

Strattons defense argued that their client was protected under the Fourth Amendment, and that Sony couldnt share his information without having a warrant first. This argument was shot down in court by Judge Daniel D. Crabtree, who said that the PlayStation Networks terms of service explicitly nullified its users reasonable expectation of privacy. As such, Sony is free to view any PSN data, and are completely in the right in going to the National Center for Missing and Exploited Children in this case.

Heres the official conclusion from the courts website:

Defendants Fourth Amendment rights were not violated. The court thus refuses to apply the exclusionary rule to suppress: (1) evidence NCMEC obtained from searching defendants electronic communications; (2) evidence law enforcement officers acquired from searching defendants residence; or, (3) statements defendant made to law enforcement during the search. The Fourth Amendment does not apply to Sonys search of defendants information because Sony acted as a private entity. And, NCMEC, as a governmental entity, did not exceed the scope of Sonys private search. Even if Sony acted as a government agent when it searched defendants information, the Fourth Amendment did not apply because defendant did not have a reasonable expectation of privacy in the information he stored on the PSN. Finally, even if defendants Fourth Amendment rights were violated, the good faith exception applies and the exclusionary rule is not justified in this case.

(Source: Ars Technica)

Excerpt from:
PSN Data Isn't Protected by Fourth Amendment - PlayStation LifeStyle - PlayStation LifeStyle

The Fourth Amendment of the United State Constitution, which protects citizens from unreasonable searches and seizures, does not protect users on the PlayStation Network from warrantless searches conducted by network proprietor Sony, a district court judge ruled this week.

The case involved a PSN user going by the handle Susan_14. The account, owned by the defendant in the case Michael Stratton, was reported to Sony on several occasions for soliciting child pornography through spam messages.

Sony reviewed the accountwithout providing notice or acquiring a warrantafter receiving complaints and found the account had been used to download and upload several pornographic images involving children.

Sony reported the findings to the National Center for Missing and Exploited Children (NCMEC), which then coordinated with the FBI to gather additional information about Stratton, including his email address (nudesusan14@gmail.com) and IP address acquired through subpoenas from Google and internet provider CenturyLink.

The information was enough for a judge to issue a warrant for law enforcement to search Strattons home in Kansas, where they discovered child pornography stored on his PlayStation 3. The finding lead to his arrest.

Strattons defense attempted to argue he had a "reasonable expectation of privacy" for the information he stored on his PSN account, and Sony didnt have the right to share his informationincluding the child porn housed on Sonys serverswithout a subpoena or warrant.

The court was unmoved by the argument, finding the terms of service for PSN explicitly state that users give Sony the right to monitor and record your and your Sub Account's activities and communications. The terms also note that Sony may disclose any user information to appropriate authorities or agencies.

The defense also tried to make the case Sony was acting as a government agent when it searched the Suan_14 accountan approach that fell flat because, in the courts viewing, Sony was monitoring the account for its own benefit and reported what it found and wasnt required to perform the search by any government agency.

Alan Butler, senior counsel at the Electronic Privacy Information Center, told International Business Times the ruling falls under what is commonly referred to as the private search doctrine.

The finding that, as Butler described it, Sonys review of that data was an action of a private entity, not compelled by any government agency, falls in line with other cases of companies sharing private information that is in violation of federal law.

In a paper from Priscilla Grantham Adams, senior research counsel for the National Center for Justice and the Rule of Law, on the private search doctrine, she describes the policy as extinguish[ing] an individuals reasonable expectation of privacy in the object searched. Once the search has occurred, she explains, the Fourth Amendment does not prohibit governmental use of this non-private information.

While the finding doesnt present a picture all that different than previous rulingsit simply extends the concept of the private search doctrine to more tightly controlled Sonys PlayStation NetworkButler noted any attempt to extend the courts opinion beyond the case it was ruling one is dicta and was beyond the scope of what the court was asked to decide in that case.

Butler said the courts conclusions about the privacy interests that apply to electronic communications sent via PSN and similar networks is inconsistent with the prevailing standard in federal courts and the standard recognized by the Department of Justice and other law enforcement agencies.

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PlayStation Network Data, PSN Privacy Not Protected By Fourth ... - International Business Times