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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

The Fourth Amendment says that warrants must state where the government will search and what evidence the government will seize. In recent years, some federal magistrate judges, when asked to sign warrants for computer searches, have began imposing a new third requirement: limits on how computers can be searched. As I wrote in this 2010 article, I dont think such limits are permissible. In my view, questions about how a computer is searched must be reviewed after the search in adversarial litigation challenging its reasonableness, rather than guessed at beforehand and written into the warrant by an individual magistrate judge.

At present, however, there isnt much in the way of caselaw on which side is right. Theres a ton of circuit precedent saying that search protocols are not required. But theres only one appellate case on whether they are permitted, a Vermont Supreme Court case which concluded that that some restrictions are permitted but others arent. No Article III court has yet ruled on the question.

In light of that ongoing debate, I thought I would flag a recent opinion by Magistrate Judge David Waxse in Kansas, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. The opinion rejects an application for a warrant to search cell phones in DEA custody because the investigators refused to provide the court with a search protocol. If the government seeks review, it may generate the first Article III precedent that grapples with whether such restrictions are permitted. (The case happens to involve cell phones, but there is no Fourth Amendment difference between a cell phone search and any other computer search.)

Waxses opinion is pretty unusual. It includes a long section titled Applying Constitutional Protections in the Digital Era that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes:

With technological developments moving at such a rapid pace, Supreme Court precedent is and will inevitably continue to be absent with regard to many issues district courts encounter. As a result, an observable gap has arisen between the well-established rules lower courts have and the ones they need in the realm of technology. Courts cannot, however, allow the existence of that gap to infiltrate their decisions in a way that compromises the integrity and objectives of the Fourth Amendment. . . . The danger, of course, is that courts will rely on inapt analogical reasoning and outdated precedent to reach their decisions. To avoid this potential pitfall, courts must be aware of the danger and strive to avoid it by resisting the temptation to rationalize the application of ill-fitting precedent to circumstances.

Judge Waxse then concludes, relying heavily on the reasoning of the Vermont Supreme Court, that he has the authority to deny applications for computer warrants unless they detail how the search will be executed. Although the Supreme Court has indicated that the reasonableness of a warrant execution should be reviewed ex post, not ex ante, Waxse concludes that its more efficient to have the review occur ex ante:

The fact of the matter is that a court is attempting to avoid entirely the harm that ex post remedies are meant to assuage. By only deciding reasonableness of the governments actions ex post, the government not only possesses a substantial portion of an individuals private life, but it also fails to prevent a person from having to defend against subsequent unreasonable searches stemming from the initial search and seizure. Requiring search protocol in a warrant allows the court to more effectively fulfill its duty to render, as the Supreme Court put it, a deliberate, impartial judgment as to the constitutionality of the proposed search, thus avoiding the need for ex post remedies resulting from an unconstitutional search.

He concludes:

If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches. Given the substantial amount of data collected by the government upon searching or seizing a cell phone, as discussed in Riley, requesting an unrestricted search is tantamount to requesting disclosure of a vast array of intimate details of an individuals private life. For the reasons discussed in this opinion, to issue this warrant would swing the balance between an individuals right to privacy and the governments ability to effectively investigate and prosecute crimes too far in favor of the government.

Accordingly, the Court again finds that an explanation of the governments search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the Fourth Amendment. The Court does not believe that this request will overburden the government. In fact, in Riley, the government advocated and it can be concluded that the Supreme Court endorsed the implementation of search protocols: Alternatively, the Government proposes that law enforcement agencies develop protocols to address concerns raised by cloud computing. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

See the rest here:
Volokh Conspiracy: No cell phone warrants without search protocols, magistrate judge rules

ST. PAUL, Minn. (WCCO) State lawmakers are considering a constitutional amendment that would protect personal data from unreasonable search and seizure without a warrant.

The data privacy amendment would expand the current law to protect electronic communications and data,giving it the same protection in the state constitution as papers and other personal property.

Lawmakers in favor of this constitutional amendment say it would ensure that new 21stcentury communications, emails, text messages and photos are protected just as much as your other personal property.

A broad spectrum of political opinion in the state is speaking as one voice: supporters range from the most conservative lawmakers to the most liberal, all believing that further protections are needed forthe electronic communications of Minnesotans.

Minnesotans support our traditional rights to be free from unreasonable searches and seizures, and theyre also saying they support a modest, targeted constitutional amendment to make it clear that these protections still apply in our digital era, Matt Ehling, president of the Minnesota non-profit Public Record Media, said.

Supporters say the amendment will clarify that personal data is covered by the Fourth Amendment.

They also hope it closes loopholes that allow the federal government access to your emails, text messages and photos.

Sen. Branden Peterson, R-Andover, said there was a loophole in federal law over emails and other forms of digital communication.

All forms of electronic communication that are over sixmonths old can be accessed without a warrant, Peterson said.

The bill has passed through the Civil Law Committee and will be taken up in the Government Operations committee on Thursday.

See the article here:
Lawmakers Aim To Update Constitution For Data Privacy

Privacy advocates are pushing to allow Minnesota voters to decide whether their electronic communication should be protected from unreasonable search and seizure.

A bipartisan group of lawmakers and political organizations is encouraging the Legislature to put the question on the 2016 ballot.

State Rep. Peggy Scott, R-Andover, worries that law enforcement is overstepping its authority in acquiring data like financial and telecommunications records without getting search warrants.

"If data was what it is today if it would have been that way back when the constitution was being written I believe they would have included a person's technological communications as part of those things that would have been protected by the Fourth Amendment," Scott said.

A committee in the Republican-controlled House has scheduled a hearing on the bill this week. No committee hearing is scheduled in the Senate and DFL Senate Majority Leader Tom Bakk said he's reluctant to put any measures on the ballot next year.

"I think it would be unlikely that we're going to consider something additional for the ballot in 2016," Bakk said. "It's a conversation that I haven't had with the speaker yet if they have any interest to propose something."

Privacy issues are a major theme at the Capitol this year. There are also discussions about the privacy implications of police body cameras and police use of license plate readers.

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Privacy advocates want amendment to protect personal data