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John Yoo, a former lawyer with the U.S. Department of Justice, argues that the NSA's phone records surveillance program is constitutional. Jeff Fusco /Intelligence Squared U.S. hide caption

John Yoo, a former lawyer with the U.S. Department of Justice, argues that the NSA's phone records surveillance program is constitutional.

The Fourth Amendment to the U.S. Constitution guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

Legal scholars and courts have been wrangling for more than a year over whether the National Security Agency's collection of millions of Americans' phone records a program first disclosed to the public by former NSA contractor Edward Snowden in 2013 violates those protections. Some legal experts disagree over whether the record collection even qualifies as a search or seizure, and, if it does, whether collecting those records is "unreasonable" or requires a warrant.

In a recent Intelligence Squared U.S. debate, two teams of constitutional law experts faced off on the motion "Mass Collection of U.S. Phone Records Violates The Fourth Amendment." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.

Before the debate, the audience at the National Constitution Center in Philadelphia voted 46 percent in favor of the motion and 17 percent against, with 37 percent undecided. After the debate, 66 percent agreed with the motion and 28 percent were opposed. That made the team arguing in favor of the motion the winner of the debate.

Those debating:

FOR THE MOTION

The Constitutional Accountability Center's Elizabeth Wydra, with teammate Alex Abdo of the ACLU, argues that collecting data that can reveal "deeply private information" without suspicion of wrongdoing violates the Fourth Amendment. Jeff Fusco/Intelligence Squared U.S. hide caption

The Constitutional Accountability Center's Elizabeth Wydra, with teammate Alex Abdo of the ACLU, argues that collecting data that can reveal "deeply private information" without suspicion of wrongdoing violates the Fourth Amendment.

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Debate: Does Mass Phone Data Collection Violate The 4th Amendment?

Montgomery County Executive Isiah Leggett said Tuesday the county will not comply with U.S. Immigration and Customs Enforcement civil detainer requests, unless there is adequate probable cause under the Fourth Amendment of the U.S. Constitution.

Leggetts statement comes on the heels of an identical directive from Gov. Martin J. OMalley to the Public Safety and Correctional Services Secretary Gregg Hershberger for a state-run jail in Baltimore, and advice from the Attorney Generals Office that without probable cause, continued detention likely violates the constitution.

Immigration detainers are notices to local law enforcement agencies that ICE intends to assume custody of an individual being held locally. Detainers not only notify local law enforcement that ICE means to take a person into custody once they are no longer subject to local detention, detainers also request the local agency hold individuals for up to 48 hours after their scheduled release to provide ICE time to take custody, according to http://www.ice.gov.

According to a news release from the American Civil Liberties Union of Maryland, federal courts have found that detention on the sole basis of an immigration detainer request violates the Fourth Amendment. Three federal courts have found that such detention raises constitutional concerns and that counties are liable in damages to the individuals they detain on that basis, according to the release.

In August, Adam D. Snyder, chief counsel, Opinions & Advice for the Maryland Attorney Generals Office, reached a similar conclusion finding that an ICE detainer alone does not mandate or authorize the continued detention of someone beyond when they would be released under state law.

Thus, if a local law enforcement officer does not have probable cause to extend custody over the subject of an ICE detainer, the continued detention likely constitutes a violation of the Fourth Amendment, he wrote in a letter of advice to Washington County Sheriff Douglas W. Mullendore.

In June, the ACLU of Maryland urged all counties in the state to stop complying with the detainer requests. Councilwoman Nancy Navarro requested in September that Leggett conform county policy to match the OMalleys recent directive on the issue.

In her request, Navarro (D-Dist. 4) of Silver Spring said she understood from Arthur Wallenstein, director of the County Department of Correction and Rehabilitation, that the practice locally was to contact ICE when there is a detainer in the system and the individual is available, even if local matters are concluded.

My understanding is that Montgomery Countys policy for responding to ICE civil detainer requests may be inconsistent with [state policy], Navarro wrote.

Wallenstein was not able to be reached Tuesday for comment.

More here:
Montgomery County will not hold immigrants without probable cause -- Gazette.Net

Secure remote control for conventional and virtual desktops

A US District Court has shot down a motion to toss out the government's evidence against alleged Silk Road mastermind Ross Ulbricht, ruling that the FBI's investigation did not violate Ulbricht's Fourth Amendment rights.

In a 38-page ruling, District Judge Katherine Forrest wrote that the defense could not exclude evidence gathered from the Icelandic server that hosted the Silk Road darknet service, rejecting Ulbricht's attorneys' argument that the probe was conducted illegally.

The order, in large part, sides with the arguments put forward by the prosecutors in the case.

Ulbricht's lawyers had argued that the FBI's search of the server, which was carried out without a warrant, violated Ulbricht's Fourth Amendment protection against unreasonable search and seizure. Judge Forrest, however, ruled that the Fourth Amendment did not apply in Ulbricht's case.

In particular, the judge noted that Ulbricht had failed to establish that he had a "personal privacy interest" in the server. Had he submitted a sworn statement asserting such interest, she observed, it could not have been admitted as evidence of his guilt during his trial, although it could have been used to poke holes in his testimony should he take the witness stand.

Ulbricht has offered no such statement, however, presumably to keep his story straight: he denies being the operator of Silk Road. But if he doesn't come forward and say the server is his, Judge Forrest said, he can't establish that he has a personal privacy interest in it and absent the expectation of privacy, he can't claim Fourth Amendment protection.

"Here, the Court does not know whether Ulbricht made a tactical choice because he is as they say between a rock and a hard place, or because he truly has no personal privacy interest in the servers at issue," the judge wrote. "It is clear, however, that this Court may not proceed with a Fourth Amendment analysis in the absence of the requisite interest."

The information gathered from the search of the Icelandic server was later used to issue warrants within the US to gather information in the investigation leading up to Ulbricht's arrest on drug and conspiracy charges. Judge Forrest acknowledged that had the defense prevailed, virtually all of the evidence pinning Ulbricht as the head of Silk Road would have been excluded.

As it is, the judge declined Ulbricht's lawyers' motion to suppress the evidence against him and his case will move forward, with his trial due to begin in November.

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Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid

Supreme Court Weighs Police Officer #39;s #39;Mistake of Law #39; in Fourth Amendment Case
Supreme Court Weighs Police Officer #39;s #39;Mistake of Law #39; in Fourth Amendment Case.

By: O.p127jds121

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Supreme Court Weighs Police Officer's 'Mistake of Law' in Fourth Amendment Case - Video

Mass Collection of U.S. Phone Records Violates the Fourth Amendment
Presented in partnership with the National Constitution Center Some say that mass collection of U.S. phone records is a gross invasion of privacy. Others say that it is necessary to keep us...

By: IntelligenceSquared Debates

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Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video