Private Members #39; Business | Thirty-fourth Amendment of the Constitution (No. 3) Bill 2014
Deputy ine Collins speaking in Private Members #39; Business on the Thirty-fourth Amendment of the Constitution, November 2014.
By: Aine Collins TD
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Private Members' Business | Thirty-fourth Amendment of the Constitution (No. 3) Bill 2014 - Video
An attorney has filed a motion to dismiss all charges stemming from the arrest of the Lake County Leader editor on Oct. 1 while he was taking photographs of an accident on Montana 35.
Editor Vince Lovato, of Polson, was charged with resisting arrest, obstruction of justice and disorderly conduct. An omnibus hearing is scheduled Monday morning.
Lovatos attorney, Mike Meloy of Helena, filed the motion to dismiss Nov. 6 on the basis of his clients First Amendment and Fourth Amendment rights.
Meloy claims that Lovato, as a photographer, had a right to record, through his photographs, the actions of the police officer, the accident scene and the driver of the vehicle.
Meloy alleged that the arresting officer, Montana Highway Patrol Trooper Anthony Isbell, had no probable cause to make a warrantless arrest and he arrested the defendant for the sole purpose of preventing him from exercising this well-settled constitutional right.
In addition, Meloy said there was no yellow crime scene tape nor any other visible boundaries demarking an investigation site, and that at no time did anyone advise the defendant that he had entered a crime scene.
Deputy Lake County Attorney James Lapotka, in the states response to the motion to dismiss filed Nov. 21, said that the motion must be denied because there is probable cause to charge and arrest the defendant for obstruction of justice and even if there were not, dismissal of the case is not an appropriate remedy.
Lapotka argues that officers on scene were still trying to evaluate the danger of a leak from a truck involved in the accident a diesel cargo tanker hauling hazardous flammable material that was leaking brake fluid when emergency vehicles arrived. The tanker had been hit head-on by an allegedly drunk woman driving a Toyota Camry on Montana 35 northeast of Polson that afternoon.
Lapotka states that emergency personnel were working to extricate the drunk driver and ensure there was no leak of potentially hazardous material onto the roadway creating a risk to the public and to Flathead Lake. He also says that the stability of the dangerous tanker had yet to be determined and the drunk drivers injuries had yet to be assessed.
The states response continues, Trooper Isbell noticed several items of evidence inside the drunk drivers vehicle and was attempting to control the scene, preserve evidence, protect public and environmental safety and assist with an ongoing medical emergency. Officers from the Montana Highway Patrol and Lake County Sheriffs Office had blocked traffic on the highway and parked patrol cars with flashing lights on the road to create a perimeter.
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Polson editor wants charges dismissed
AOLs terms of service amount notice to the user that AOL looks for illegal email content and reports it. Therefore, he lacks a reasonable expectation of privacy and he consented to AOL turning them over to NCMEC. [B]y agreeing to AOLs terms of service, DiTomasso consented to a search of his AOL emails by law enforcement, thereby waiving his Fourth Amendment rights. United States v. DiTomasso, 2014 U.S. Dist. LEXIS 152505 (S.D. N.Y. October 28, 2014) (Note: This conclusion was not arrived at easily.):
DiTomasso has an AOL email account frankieinnyc1@aol.com. When AOL users send or receive emails that contain attachments, AOL runs two background monitoring systems designed to scan for illicit material, including, but not limited to, child pornography. The programs work by assigning hash numbers to image and video files. In essence, hash numbers are unique number-strings that can be used to archive packets of data fingerprint[s] for electronic media.
AOL employs two different hashing programs. The first the Image Detection and Filtering Process (IDFP) sweeps for one-to-one matches with known child pornography. If an attached file is a one-to-one match, the email is quarantined i.e., diverted from the recipients inbox and an automatic report is generated and sent to the National Center for Missing and Exploited Children (NCMEC report).
AOLs second hashing program photoDNA looks for similarities among hash numbers. If photoDNA identifies an attachment with a hash number close enough to known child pornography to raise alarm, the email is once again quarantined, and an AOL employee reviews the flagged file to confirm the presence of apparent child pornography. Once the presence of apparent child pornography is confirmed, the employee submit[s] a [NCMEC report], and the files hash number is entered into the IDFP database.
On August 17, 2012, two emails intended for frankieinnyc1@aol.com were hashed and quarantined, giving rise to two corresponding NCMEC reports. The first email, which formed the basis of NCMEC report #1560137, was hashed using photoDNA and its contents were reviewed by an AOL employee.10 The second email, which formed the basis of NCMEC report #1558963, was hashed using IDFP. No AOL employee reviewed its contents.
B. AOLs Privacy Policy
At the time of the disputed searches, AOLs privacy policy and terms of use required users to assent to the following conditions. First, they forbade users from post[ing] content that contains explicit or graphic descriptions or accounts of sexual acts or is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of anothers privacy, or tortious. Second, AOLs terms provided that AOL reserves the right to take any action it deems warranted in response to illegal behavior, including terminat[ing] accounts and cooperat[ing] with law enforcement. Third, AOLs terms made clear that if users disclose information about [themselves] publicly others outside of AOL may obtain access to [such] information, and furthermore, that AOL itself may disclose to others including law enforcement information [that is] relevant to a crime that has been or is being committed.
. . .
Third, the government suggests that DiTomasso had no expectation of privacy in his electronic communications because the ISPs responsible for facilitating those communications AOL and Omegle warned him that they might be monitor[ing] his activity. Given DiTomassos clear and explicit notice that AOL reserved the right to . . . disclose[] the content of his communications to law enforcement, if [DiTomasso used] his email account for illegal activities, and that Omegle was using an automated system to screen [DiTomassos chats] and potentially share [them] with third parties, including law enforcement, the government argues that DiTomasso can claim no reasonable expectation that his emails and chats would not be review[ed].
Along with the Sixth and Ninth Circuits, both of whom have addressed variations on this argument,[Warshak and Quon] I conclude that it would subvert the purpose of the Fourth Amendment to understand its privacy guarantee as waivable in the sense urged by the government. In todays world, meaningful participation in social and professional life requires using electronic devices and the use of electronic devices almost always requires acquiescence to some manner of consent-to-search terms. If this acquiescence were enough to waive ones expectation of privacy, the result would either be (1) the chilling of social interaction or (2) the evisceration of the Fourth Amendment. Neither result is acceptable.
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S.D.N.Y.: '[B]y agreeing to AOL's terms of service ...
Near midnight on Sept. 29, 2008, Amanda Strunk and Joshua Cleveland were arrested together near a meth lab in rural LaGrange County and booked into the LaGrange County Jail.
The two, in their 30s, became the representatives of a federal class-action lawsuit filed in 2010 that has inspired new policies and will soon result in a million-dollar settlement for them and 237 others who were jailed past 48 hours without probable cause being established, violating their Fourth Amendment rights.
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Jails scramble to abide by 48-hour rule after lawsuits
Current Fourth Amendment Issues Regarding Cell Phone and Email Privacy
Constitution Day Program, Professor Jennifer Brooke Sargent, J.D. Hey, You Can #39;t Just Look in There: Current Fourth Amendment Issues Regarding Cell Phone and Email Privacy after Riley v....
By: Dartmouth
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Current Fourth Amendment Issues Regarding Cell Phone and Email Privacy - Video