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On Tuesday of this week, the en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and here on whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesnt post oral argument audio, so well likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Lets recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis well get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I dont know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesnt count.)

In light of these cases, decided and pending, theres likely to be a colorable case for Supreme Court review no matter how the Fourth and Eleventh Circuits rule. Supreme Court review focuses heavily on splits, that is, clear and outcome-determinative disagreement among federal circuits and state supreme courts about how the law applies. If the Fourth and Eleventh Circuits hold that the Fourth Amendment applies, it creates a plausible split with the Fifth. If they hold that the Fourth Amendment doesnt apply, they create a plausible split with the Florida Supreme Court especially pressing in the case of the Eleventh Circuit, as it would be within the same jurisdiction.

Maybe, but there are two important caveats. [UPDATE: Actually, only one caveat. See below.]

First, the Florida Supreme Court repeatedly tried to limit its holding to real-time cell-site monitoring as opposed to historical access. There are possible grounds to say that at least some kinds of real-time cell-site monitoring might raise some different issues. So if the Fourth and Eleventh hold that there is no protection, you could say that there is no split because the Florida Supreme Courts decision was only about real-time monitoring. Its a possible argument, although its worth noting that the Florida Supreme Court didnt actually offer a legal basis for limiting its holding to real-time monitoring. It announced the limitation, but it didnt actually develop a clear reason why it could make a difference.

Similarly, its possible to say that a Fourth and Eleventh Circuit finding cell site protection for historical cell site data wouldnt create a real split with the Fifth Circuit given the unusual procedure of the Fifth Circuit case. [BUT SEE UPDATE BELOW] Recall that the Fifth Circuit case arose when the government applied for an order for historical cell site data and the Magistrate Judge denied the application on Fourth Amendment grounds. In response to an academic amicus brief that raised ripeness problems with ruling in that context absent any facts, the Fifth Circuit limited its analysis to whether access to historical cell site records was per se unconstitutional. By answering only the issue of per se unconstitutionality, which I take to be kind of like asking whether a statute is facially unconstitutional, the Fifth Circuit arguably only answered whether access to historical cell site records always violated the Fourth Amendment, not whether it would in a particular case. If you take that reading of the case, then perhaps there would be no split with a decision finding a Fourth Amendment violation based on a specific set of facts. This is a possible argument, but not an obvious one, as the reasoning actually adopted by the Fifth Circuit applies more broadly than that limited reading would suggest.

Putting all these pieces together, its hard to know when the Supreme Court might be interested. We might get a clear split from the Fourth and/or Eleventh Circuit cases, but the Court might decide to wait a while given the possible arguments that there is not yet a super-clear split. As always, stay tuned.

UPDATE: A reader reminds me that in a subsequent case, United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014), the Fifth Circuit applied the reasoning of its initial cell-site case to an as-applied set of facts involving historical cell site records. After Guerrero, the Fifth Circuit rule is clear: Historical cell-site data is not protected. So scratch that second caveat above.

Also, another reader points out in United States v. Skinner, where the Sixth Circuit also suggested that cell-site data is not protected. Maybe, although recall that Skinner involved pinging a phone, which raises some different issues.

Read more:
Volokh Conspiracy: Supreme Court review of cell-site cases?

Google has strongly opposed US government plans to expand federal powers to authorise remote searches of digital data - claiming in a letter the powers will weaken citizens' fourth amendment rights.

The right is the part of the US Constitution that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.

In a letter to the Washington committee considering the proposed changes to the Federal Rule of Criminal Procedure 41, Google said the amendments raise a number of "monumental and highly complex constitutional, legal, and geopolitical concerns."

"Google urges the committee to reject the proposed amendment and leave the expansion of the government's investigative and technological tools, if any are necessary or appropriate, to Congress," it said.

The changes would permit any court within any district to issue a warrant authorising remote access searches of electronic information.

The company said a magistrate judge in the Southern District of Texas recently denied an application for a Rule 41 Warrant to permit US law enforcement agents to hack a computer whose location was unknown, but whose IP address was most recently associated with a country in South-East Asia. "Such searches clearly violate the extraterritorial limitations of Rule 41," it said.

It added: "The nature of today's technology is such that warrants issued under the proposed amendment will in many cases end up authorising the government to conduct searches outside the United States.

"Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures and expands the practice of covert entry warrants."

Richard Salgado, Google's director for law enforcement and information security, said the proposed change "raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide".

Google raised its objections as part of a public consultation that ended on Tuesday.

Read more:
Google strongly opposes plans to let ANY US COURT authorise digi-snoops

National Assembly building, Abuja

No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution, passed by the Senate on Wednesday.

However, the National Assembly has also approved the inclusion of independent candidacy in the new proposed constitution.

The extant electoral law in section 177 stipulates that candidates for elections must be sponsored by political parties. But the lawmakers have altered this section by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.

Consequently, any qualified Nigerian can now stand for election without necessarily belonging to any political party.

Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution, submitted by Deputy Senate President, Ike Ekweremadu, on the floor of the Senate, noted that 20 states voted against local government autonomy while 16 states voted in support.

The 20 states that voted against were: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.states.

The states that voted in favour of the councils autonomy were Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.

The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.

It shall not also exercise any function exercisable by a local government council under this constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the Council were sworn in.

See the article here:
New constitution: NAssembly okays independent candidacy for poll

In an earlier post, co-blogger David Post pointed to a state trial court ruling in Montana, for which he was an expert for the defense, which concluded that the government needs a warrant under the Fourth Amendment and/or the Montana Constitution for a police officer to go undercover on Facebook as a teenage girl, friend a target, and have conversations with that target. Heres a different perspective on the case. To the extent the judge was relying on the Montana Constitution, the decision is plausible. On the other hand, the decision is plainly wrong if it was relying on the federal Fourth Amendment.

For purposes of the federal Fourth Amendment, the law is really clear: You give up your Fourth Amendment rights in what you knowingly disclose to another person such as an undercover officer or informant. If you communicate with a person in a Fourth Amendment protected space such as your home, you cant claim a Fourth Amendment violation in what you shared with the person if they violated your confidences and happen to be (or are working with) law enforcement. See, e.g., United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); Osborn v. United States, 385 U.S. 323 (1966); Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952).

As I explained in a forthcoming article, this legal rule was originally the point of the subjective expectation of privacy test of Katz, the thought being that you did not manifest your privacy rights in what you disclosed to another even in Fourth Amendment protected space. The Supreme Court later moved the principle over to the objective expectation of privacy test instead, where it announced the idea as the so-called third-party doctrine: [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976).

Those principles are directly applicable in the Montana decision. The defendant, Windham, thought he was communicating with a 16-year old girl named Tammy Andrews. It turned out that Andrews was actually an adult police officer, proof that on the Internet nobody knows youre a cop. The government is trying to use what the officer saw as Tammy Andrews in communication with Windham, which is only what Windham knowingly reveled to Andrews. From a standpoint of the federal Fourth Amendment, its a trivial case. Theres no plausible argument for Fourth Amendment protection.

Importantly, though, that doesnt mean that the result is wrong. It may just be correct as to the Montana Constitution instead of the Fourth Amendment. State courts can interpret the state constitution more broadly than the federal Fourth Amendment And in State v. Goetz, 345 Mont. 421 (2008), the Montana Supreme Court held that the state constitution requires a warrant when an undercover agent wants to record a one-on-one conversation with a target, even though the Fourth Amendment doesnt require that. Under Goetz, theres at least a plausible argument that either the use of the undercover, or at least the recording of the communications, required a warrant under the state constitution.

Its not a slam dunk, though, for two reasons. First, the focus in Goetz seems to be the recording of the communication without the targets consent. Facebook communications are inherently recorded in the sense that this is how Facebook works. In analogous contexts, some state courts have held that a target consents to recording when they use messaging services that necessarily record their messages.

Second, it might matter that the defendant in this case was in Germany at the time these communications ensued. Assume theres a requirement of a warrant under the Montana Constitution for communications that occur inside Montana. If an undercover officer in Montana has communications with a target in Germany, does the Montana Constitution require the same warrant? Is the search occurring in Germany for purposes of the state constitution, and if so can a Montana court issue a warrant for a search there? Or does the search occur in Montana for state constitutional purposes because the recording occurred there? Im not sure.

However a court should resolve these questions, though, this is an argument only about the state constitution rather than the Fourth Amendment. Under the Supremacy Clause, the ruling would apply to state officers but not federal officers.

Finally, in the comment threads to Davids post, several commenters raised the Computer Fraud and Abuse Act. If the government thinks its a crime to violate Terms of Service on Facebook, which was the DOJ position in the Lori Drew case, why doesnt that forbid the governments procedure here as a matter of federal law? I think there are three independent reasons. First, an exception to the CFAA expressly exempts law enforcement investigations, see 18 U.S.C. 1030(f), so this wouldnt violate the CFAA even if you believe that TOS violations generally violate the CFAA. Second, there is no federal suppression remedy for statutory violations absent a clear directive of Congress, of which there is none here. And third, even though DOJ argued that the TOS violations in Drew violated the CFAA, the DOJ was wrong, as the district court recognized in tossing the convictions.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

The rest is here:
Volokh Conspiracy: Undercover Facebook investigations and the federal/state divide a response to David Post

No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution (as amended), passed by the Senate on Wednesday.

Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution submitted by Deputy Senate President Ike Ekweremadu on the floor of the senate, noted that 20 states voted against local government autonomy while 16 states voted in support.

The 20 states who voted against are: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.

States who gave the yes votes are: Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.

The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.

It shall not also exercise any function exercisable by a local government council under this Constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the council were sworn in.

The report also indicated that the National Assembly has also empowered the Independent National Electoral Commission to deregister political parties.

It also made provision for independent candidates in elections.

The extant electoral law stipulates that candidates for elections must be sponsored by political parties. Section 177 has been altered, by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.

It was further observed that the lawmakers inserted section 225A, which states that INEC can deregister political parties if there is a breach of any of the requirements for registration.

See more here:
Constitution review: 20 states reject LG autonomy