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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

For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked.

In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices:

"...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated."

That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment.

That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected:

"The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about whats going on inside the home. But thats simply not the case. Smart meters not only produce far more data than analog metersthose set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog metersbut the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it."

As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon.

Read this article:
EFF: Data Collected From Utility Smart Meters Should Be Protected By The Fourth Amendment - Techdirt

The 4th Amendment, fundamentally, is concerned with privacy. A persons space either in terms of possessions or body cannot be intruded upon without justification. As stated in the amendment, a search or seizure must not be unreasonable.For example, in Weeks v. United States (1914) the Supreme Court unanimously asserted that a persons possessions could not be seized from a private residence unless the police had a warrant. A warrant is a document issued by a court after evidence is put forward that shows that there is probable cause to perform the search. The probable cause standard is considered to be something more than a reasonable suspicion. But, obviously, even probable cause is still not enough to confirm guilt. It is often vague and unclear as to when probable cause exists. As such, the law surrounding the 4th Amendment has continued to shift over the decades, as definitions have changed and exceptions have been carved out.Indeed, even the definition of a search has seen modifications over the years. In Olmstead v. United States (1928), for example, the Supreme Court rejected the notion that electronic surveillance by wiretapping phones constituted a search. But in Katz v. United States (1967), the Court reversed this precedent. Recalling the purpose of the 4th Amendment to assure citizens of their expected privacy wiretapping was brought under the umbrella of a search. A warrant is now required for these actions as well (though, today, the federal government does engage in warrant-less wiretaps within the United States for the purpose of combating terrorism though the Supreme Court has yet to weight in on the constitutionality of these potential searches).4th Amendment analysis often is involved in issues of police brutality and excessive force as well. An arrest of a person can be considered a seizure or intrusion upon that persons body. The Court dealt with exactly this kind of analysis in the 1989 case Graham v. Connor. Police officers detained and arrested a man they saw running out of a convenience store while they questioned the store clerks to make sure nothing had been stolen. The man claimed he was diabetic and having an insulin reaction, and that he was hurrying to return to a friends house to get the necessary means to stop his reaction. The police ignored his repeated requests regarding his condition, and he suffered injuries as a result while waiting to determine nothing illegal had happened in the store. The man brought a lawsuit alleging that this violated his 4th and 14th amendment rights. The lower courts applied a test that analyzed the intent of the police officers, and dismissed the plaintiffs claims when they decided that the police did not have a sadistic or malicious intent in keeping him detained.The Supreme Court disagreed and vacated the lower courts decisions. In cases involving excessive force violations of the 4th amendment, the Court determined that a reasonableness standard should be used rather than subjective intent test. This standard is easier for plaintiffs to prove. Additionally, this test must be applied through the 4th Amendment itself, rather than the Due Process Clause or other amendments. However, the Court also made sure to mention that this analysis must take into account the fact that police officers are frequently required to make fast decisions regarding their safety, and therefore this reasonableness must be viewed from the perspective of a reasonable officer at the scene.The modernization of 4th Amendment protections has continued in the 2014 decision Riley v. California. The Supreme Court ruled unanimously that police need a warrant in order to search the contents of a cellphone. The government argued that cell phones could be searched upon the arrest of an individual, comparing this to the legally acceptable search of a prisoners pockets. The Court acknowledged that given the immense amount of data stored about a person on a cell phone, searching a phone was instead far more similar to (and perhaps even worse than) searching a persons house.Still, not all searches require warrants or even probable cause. First, police officers routinely pull individuals over without warrants. Often, the facts surrounding the pull-over or the arrest constitute probable cause. If a police officer actually sees a person using drugs, for example, there is obviously probable cause for an arrest and the officer need not wait for a warrant to do his or her job. However, there are instances when police may perform searches even without probable cause at all, and with the lesser (though still somewhat vague) standard of reasonable suspicion. For example, in Terry v. Ohio (1968), the Supreme Court considered a search that police officers had conducted. The officers had patted down individuals walking on the street that they felt were exhibiting suspicious behavior. It turned out that the individuals were, in fact, carrying illegal weapons. But the defendants claimed that those weapons were found through an unconstitutional search: the officers did not have probable cause to think that the men were carrying weapons, and the defendants sought to suppress whatever the officers may have found through that search. The Court, however, rejected this argument and acknowledged that on-the-job police officers need to be permitted some amount of leeway in order to properly do their jobs. The facts of the case made the search sufficiently reasonable. As long as the search was not merely conducted on a hunch, it did not violate the 4th Amendment.

As an aside, other exceptions to needing a warrant for a search have been established as well. For example, in New Jersey v. T.L.O. (1985), the Court upheld a search performed in a school by an administrator without a warrant. Students can be searched provided there is at least reasonable suspicion.

Olmstead v. United States (1928)

Mapp v. Ohio (1961)

Katz v. United States (1967)

Terry v. Ohio (1968)

New Jersey v. T.L.O. (1985)

Graham v. Connor (1989)

County of Riverside v. McLaughlin (1991)

U.S. v. Jones (2012)

Florida v. Harris (2013)

Missouri v. McNeely (2013)

Maryland v. King (2013)

Fernandez v. California (2013)

Riley v. California (2014)

Heien v. North Carolina (2014)Florida v. Harris(2013)Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC(2012)

Smith V. Maryland(1979)

Harper v. Virginia State Board of Elections(1966)

Harman v. Forssenius(1965)

Breedlove v. Suttles(1937)

Fernandez v. California(2014)

Scott v. Harris(2007)

Brady v. Heien(2014)

Delaware v. Prouse(1979)

Heien v. North Carolina(2014)

King v. Burwell(2014)

Rodriguez v. United States(2015)

Read this article:
The Fourth Amendment - Text | Transaltion | Key Cases

Letter to the editor: Fourth Amendment for Americans Post Register Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this ...

Link:
Letter to the editor: Fourth Amendment for Americans - Post Register

A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning.

I. The New Opinion

In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.

The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.

Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cellphones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:

[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.

II. My Analysis the Fourth Amendment Issues

I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.

A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.

This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.

If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate preapproval will help trigger the good-faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the preapproval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate preapproval of something they have no authority to preapprove to change whether the exclusionary rule applies.

Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.

I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.

II. My Analysis the Fifth Amendment Issues

On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and Touch ID.That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.

There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.

The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.

Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply,the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.

Continue reading here:
Judge rejects warrant provision allowing compelled thumbprints to ... - Washington Post