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Law enforcement's warrantless use of surveillance technology ignores and mocks Fourth Amendment protections against unreasonable search and seizure. The latest insult to Americans' rights is the FBI's insistence that it can indiscriminately gather the identities and locations and intercept the calls and texts of those using cellphones in public places.

As we've noted before, the FBI does so via stingray devices that mimic cell towers. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and fellow member Patrick Leahy, D-Vt., are questioning an FBI policy exception that allows warrantless stingray use in public places.

So long as they're not shouting, cellphone users do have a reasonable expectation of privacy in public places. Warrantless cellphone monitoring there is just as unreasonable as seizing a letter written in a coffeehouse would be.

It's the same principle behind the Supreme Court ruling requiring warrants for GPS tracking of suspects' vehicles and behind nine states' laws, plus rulings by Massachusetts' and Florida's highest courts, requiring warrants for real-time cellphone tracking.

The FBI's warrantless stingray use necessitates more such judicial and legislative actions that guard against law-enforcement overreach by reinforcing the Fourth Amendment's essential requirement of getting a warrant.

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The stingray assault: Get a warrant

In a recent case, United States v. Shah, 2015 WL 72118 (E.D.N.C. Jan. 6, 2015), a district court ruled that a search warrant for an e-mail account for all evidence of violations of the federal computer hacking statute failed to comply with the Fourth Amendment because it did not particularly describe the evidence to be seized.

The warrant in the case approved the seizure from a specific gmail account of e-mails that contained the following:

All information . . . that constitutes fruits, evidence, and instrumentalities of Title 18, United States Code, Sections 1030 (Fraud and Related Activity in Connection with Computers), since account inception, including, for each account or identifier listed on Attachment A, information pertaining to the following matters: a. Preparatory steps taken in furtherance of unauthorized network activity, communications regarding execution of the unauthorized network activity, and information regarding tools used in furtherance of the unauthorized network activity. b. Records relating to who created, used, or communicated with the account or identifier, including records about their identities and whereabouts.

This description is a slightly modified version of the DOJ recommended e-mail warrant description, albeit without a date restriction; see here at 261-62. According to the district court, however, the warrant was not specific enough. From the opinion:

The provision [of the warrant] describing the documents seized makes a general reference to [a]ll information described above in Section I that constitutes fruits, evidence, and instrumentalities of Title 18, United States Code, Sections 1030 (Fraud and Related Activity in Connection with Computers). (Google Warrant, 6). This statute, also known as the federal Computer Fraud and Abuse Act (CFAA), prohibits a wide array of activities, including the use of computers to transmit information restricted by the United States without authorization, intentionally accessing a computer without authorization or exceeding authorized access to obtain financial records, accessing nonpublic computers of the United States in a way which affects the governments use, accessing protected computers without authorization in order to commit fraud, threatening to cause damage or obtain information from a protected computer, conspiracy to commit these offenses, and other activities. See 18 U.S.C. 1030(a).

A violation of the CFAA would not necessarily generate such distinctive evidence as bank robbery or narcotics. Dickerson, 166 F.3d at 694. Nor would evidence necessarily be as distinctive as that of child pornography, a type of crime more commonly targeted by warrants for electronic information. E.g. United States v. Schesso, 730 F.3d 1040, 1044 (9th Cir.2013); United States v. Deppish, 994 F.Supp.2d 1211, 1214 (D. Kansas 2014). Rather, a warrant authorizing collection of evidence of a CFAA violation comes closer to warrants seeking to collect evidence regarding violations of broad federal statutes prohibiting fraud or conspiracy. In these cases, limitation by reference to the broad statute fails to impose any real limitation. See United States v. Maxwell, 920 F.2d 1028, 1033 (D.C.Cir.1990) (Although a warrants reference to a particular statute may in certain circumstances limit the scope of the warrant sufficiently to satisfy the particularity requirement it will not do so where, as here, the warrant authorizes seizure of all records and where, as here, the reference is to a broad federal statute, such as the federal wire fraud statute.); Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987) (general search limited only by broad tax evasion statute held overly broad, where probable cause existed only to search for evidence of tax evasion in connection with one particular project); United States v. Roche, 614 F.2d 6, 78 (1st Cir.1980) (warrants limitation of search to fruits and instrumentalities of the violation of federal mail fraud statute was inadequate because limitation by so broad a statute is no limitation at all.).

The Google Warrant provides no other details to clarify the particular crime at issue. Section II(a) makes reference to unauthorized network activity, yet gives no indication as to the meaning of this phrase, which would seem to be implicated in almost all of the activities prohibited by the CFAA. The warrant offers nothing about the time frame of the offense. See United States v. Hanna, 661 F.3d 271, 287 (6th Cir.2011) (noting, in upholding search warrant for electronic information, that the warrant was limited to the time period that the evidence suggested the activity occurred.) Rather, it provides for the seizure of all evidence of violations of the CFAA since account inception. (Google Warrant, 6).

Although the test for particularity is a pragmatic one, and must consider the circumstances and type of items involved, Torch, 609 F.2d at 1090, the record does not indicate that circumstances of the investigation precluded a more particularized description of the crime. Special Agent Ahearns supporting affidavit provides copious details as to the time and nature of the alleged offenses. Had the Google Warrant properly attached or incorporated this affidavit, it could have provided the necessary context for the search. Hurwitz, 459 F.3d at 471 ([A]n affidavit may provide the necessary particularity for a warrant if it is either incorporated into or attached to the warrant.) (quoting United States v. Washington, 852 F.2d 803, 805 (4th Cir.1988)). Yet the Google Warrant makes no incorporation, and it does not appear from the record that the affidavit was attached. Without the Google Warrant somehow including the additional details provided by Special Agent Ahearns affidavit, the affidavit itself cannot satisfy concerns for particularity or overbreadth. See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.).

[T]here are grave dangers inherent in executing a warrant authorizing a search and seizure of a persons papers that are not necessarily present in executing a warrant or search for physical objects whose relevance is more easily ascertainable. Williams, 592 F.3d at 52324 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11). Because electronic devices could contain vast quantities of intermingled information, raising the risks inherent in over-seizing data law enforcement and judicial officers must be especially cognizant of privacy risks when drafting and executing search warrants for electronic evidence. Schesso, 730 F.3d at 1042; see also In the Matter of the Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F.Supp.3d 157, 16667 (D.D.C.2014) ( D.D.C. Mac.com Order ). Especially in light of the nature of the search and seizure here, the Google Warrant is not drafted with sufficient particularity. In the absence of additional details, the warrant fails to identify the particular crime for which officers were to seek evidence. Therefore, the warrant lacks the particularity required by the Fourth Amendment.

The court goes on to apply the good-faith exception, however, because the courts holding is somewhat novel under the circumstances. Heres the discussion, with a paragraph break added:

Read more here:
Volokh Conspiracy: E-mail warrant for all evidence of CFAA crimes violates Fourth Amendment, court holds

The Fourth Amendment: How It Impacts Us In School
Description.

By: Rachael Plummer

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The Fourth Amendment: How It Impacts Us In School - Video

On March 3, at 10 a.m., the Supreme Court will hear arguments in Los Angeles v. Patel, a fascinating case about the proper structure of a Fourth Amendment challenge.

Los Angeles has an ordinance that requires hotels to maintain certain records about their guests and to produce those records for police officers upon request which is to say, the officer need not necessarily have a warrant or any particular suspicion. Hoteliers claim this regime violates the Fourth Amendment:

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.

Oddly, though, the hoteliers have chosen to challenge the ordinance on its face. They do not allege that any particular search was unreasonable; indeed, they do not present the facts of any particular search at all. Los Angeles contends that this facial challenge is improper: In its view, a Fourth Amendment challenge must be an as-applied challenge. (Los Angeles has the great good fortune to be represented, in part, by our own co-Conspirator Orin Kerr; the Los Angeles brief is available here.) The case thus presents the question of whether a Fourth Amendment challenge can be purely facial or must be as-applied.

On the surface, this is merely a technical question about proper pleading of a Fourth Amendment case. But on another level, this case is of enormous theoretical importance far beyond the Fourth Amendment. I have argued that this vexed distinction between facial and as-applied challenges is actually a window into the basic constitutional structure of judicial review.

In that regard, I have filed an amicus brief on behalf of the Manhattan Institute(with MIs Jim Copland), arguing that a Fourth Amendment challenge must always be as-applied. Here is the summary of argument:

A Fourth Amendment challenge is inherently an as-applied challenge for the simple reason that the Fourth Amendment binds the executive branch and restricts the paradigmatic executive action of searching and seizing.

Courts have not always been perfectly clear about the distinction between facial and as-applied challenges, and this case presents a perfect opportunity to clarify the distinction. What a close reading of the cases reveals is that this distinction simply turns on who has allegedly violated the Constitution. A facial challenge is a challenge to legislative action. An as-applied challenge is a challenge to executive action.

The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Courts sometimes write, euphemistically, of challenges to statutes or ordinances, thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes and ordinances; it prohibits actionsthe actions of particular government actors. Thus, every constitutional inquiry properly begins with the subject of the constitutional claim. And the first question in any such inquiry is the who question: who has allegedly violated the Constitution?

The who question establishes the two basic forms of judicial review: facial challenges and as-applied challenges. In the typical constitutional case, the legislature will make a law, the executive will execute it, and someone will claim that his constitutional rights have been violated. The first question to ask such a claimant is who has violated the Constitution? The legislature, by making the law? Or the executive, by executing the law?

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Volokh Conspiracy: Los Angeles v. Patel and the constitutional structure of judicial review

Facebook user data in bulk was sought last year by the New York County District Attorney's office and a court directed it to produce virtually all records and communications for 381 accounts, the company disclosed Thursday.

The social networking giant is now asking the court for the return or destruction of the data as well as a ruling on whether the bulk warrants violated the Fourth Amendment to the U.S. Constitution and other laws. The Fourth Amendment prohibits unreasonable searches and seizures of property.

The company said that since last July it has been fighting a set of sweeping search warrants issued by the Supreme Court for New York County that demanded that it turn over to law enforcement nearly all data from the accounts of the 381 people, including photos, private messages and other information.

Facebook was also prohibited from informing the targeted persons, who included "high schoolers to grandparents, from all over New York and across the United States," and electricians, school teachers, and members of the country's armed services.

Of the 381 people whose accounts were covered under the warrants, 62 were later charged in a disability fraud case, Facebook's deputy general counsel Chris Sonderby wrote in a post on Thursday.

The request from New York is described by the company as the largest it has received, "by a magnitude of more than ten."

The social networking company last Friday asked the appellate division of the New York State Supreme Court to force the government to return the data it has seized and retained.

The government's own investigation confirms "that most of the Facebook user data seized by the Government is irrelevant to the charges alleged, and the search warrants are overbroad and constitutionally defective," the company wrote in the court filing.

After Facebook filed the appeal, the government unsealed the warrants and all court filings, which has enabled Facebook to notify the people whose accounts were affected about the warrants and its ongoing legal efforts, Sonderby wrote.

Facebook's appeal focuses on whether it has the standing to challenge the warrants, whether the warrants, which authorized collection of large amounts of personal information and communications without an "apparent connection to the crimes under investigation, or procedures requiring the return of the seized information" are in violation of the Fourth Amendment, and whether the gag provisions of the warrants violate the Stored Communications Act and the First Amendment.

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Facebook tries to recover bulk user data seized by New York law enforcement