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Erin Schaff/Pool/AFP via Getty Images

Erin Schaff/Pool/AFP via Getty Images

At the Supreme Court, nothing is as usual this term after the leak of Justice Samuel Alito's draft opinion in the biggest abortion case in nearly a half-century.

Normally at this time of year, the justices would be exchanging hundreds of pages of draft opinions and working with each other to resolve differences and reach consensus in the most challenging cases of the term. Instead, the court is riven with distrust among the law clerks, staff and, most of all, the justices themselves.

The atmosphere behind the scenes is so ugly that, as one source put it, "the place sounds like it's imploding." To cite just one public example, Justice Clarence Thomas in a speech a few weeks ago seemed to say he no longer trusts his colleagues.

"When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally," he told a conservative group. "You begin to look over your shoulder. It's like kind of an infidelity that you can explain it but you can't undo it."

Specifically, he implied that he doesn't trust Chief Justice John Roberts.

"The court that was together 11 year[s] was a fabulous court. It was one you look forward to being a part of," he said.

Those 11 years were when the chief justice was William Rehnquist, who died in 2005 and was succeeded by Roberts, who, ironically, had been one of Rehnquist's clerks many years earlier.

The root of the current antipathy is not definitely known. What is known is that Roberts infuriated some of conservatives on the court 10 years ago when he changed his mind and voted to uphold key provisions of the Affordable Care Act. These switches are rare, but they do happen; justices change their minds, and in good faith. But that switch so angered some of the court's conservatives that it leaked, obviously from someone connected to a conservative justice, who aimed to embarrass Roberts.

Now, there is a much bigger and, in fact, unprecedented leak to deal with an actual draft opinion reversing a half-century of abortion precedents. The chief justice called the leak "a betrayal" and ordered the Supreme Court marshal to conduct an internal investigation. But the investigation may only be adding to problems at the court.

To begin with, the Supreme Court marshal overseeing the probe has no experience as an investigator; nor do the Supreme Court police. Their job is to protect the justices. And people who do have experience as investigators say that leak inquiries are, in the words of several, "nightmares."

Glenn Fine, a former inspector general for the Justice Department and then the Defense Department in both Democratic and Republican administrations, conducted and supervised lots of these investigations.

Typically, he wrote, in the beginning "we would be told that ... only a few people had access to the material that had been leaked. Only a few individuals were at the key meeting or worked on the document."

But, he said, "invariably when we probed the universe of people who had access," the number expanded "exponentially." Instead of a discrete few, the number included "additional co-workers, office staff, computer administrative staff, family and friends of those working on the matter, even people who passed through the office," and in the pandemic era, one might assume, the homes of the justices and others working from home. Fine said that even if there was some evidence of contact with a reporter, "we were usually unable to prove that the contact led to the leak." Therefore, most of the time, all the investigators ended up with were theories and speculation.

Now, turning to this leak, CNN has reported that the court "has taken steps to" ask the clerks to sign sworn affidavits and to essentially dump their cellphones.

"Taken steps to" doesn't mean that anything has actually happened. But if the clerks have been asked to sign an affidavit, it is unknown what is in the affidavit or will be in the affidavit. And while the leak of a draft opinion is in fact a huge ethical breach, the draft is not classified, so the leak is not a crime. That said, lying in a sworn affidavit is.

So, imagine you swear under oath that you didn't have anything to do with the leak, and it turns out that your former college classmate is a reporter, and you had dinner with him in April prior to the leak; you could be in a heap of trouble. So, indications are that some law clerks are lawyering up. And some justices may forbid cooperation with a probe they see as a witch hunt.

Not to mention that if the court can dump information from a clerk's cellphone without a warrant, that directly contradicts the Supreme Court's own ruling eight years ago when it said that police could not search a suspected gang member's phone without a warrant after he was pulled over in a traffic stop.

Roberts wrote the court's unanimous opinion, saying that modern cellphones are not just another technological convenience. They are a compendium of everything in a person's life your political preferences, interests, hobbies, medical records, where you have been and with whom.

"Allowing a warrantless search of all this information is not just an incidental intrusion like a peek into a cigarette pack," he said in summarizing the opinion from the bench. "It is a significant invasion of privacy."

The Fourth Amendment, he noted, was the Founders' response to the reviled "general warrants" of the colonial era, which allowed British officers "to rummage through homes in an unrestrained search for evidence of criminal activity."

A cellphone search, without a warrant, the court concluded, is no different.

Now, however, the court may be doing just that, and the terrified law clerks have been calling law firms, wondering whether they need legal representation. All of this presents its own ethical problems, since these law firms do have cases in front of the Supreme Court.

As for the court itself, it is not in a good place.

"I don't know how on earth the court is going to finish up its work this term," said a source close to the justices. The clerks, he explained, are sort of "the court's diplomatic corps." Especially at this time of year, they talk to each other, with the approval of their bosses, to find out how far the envelope can be pushed in this case or that one or conversely, how can we soften language to get five justices on board. But at the moment, he noted, the clerks are terrified that their whole professional lives could be blown up, so they aren't able to do that. In short, it's a very perilous time for the Supreme Court.

Continue reading here:
After the leak, the Supreme Court seethes with resentment and fear behind the scenes - NPR

Most modern cars know their locations better than their owners do. As suites of connected-car apps become mainstream for both emergency functionality (such as General Motors' OnStar) or for owner conveniences such as remote start or parking guidance, new vehicles are overflowing with data needed to support always-on connectivity.

While most owner concerns (and popular attention) have been fixed on unallowed hacks into such systems by bad actors, there are still massive troves of automatically generated data open to anyone with the knowledge to access it, and even the "proper" use of this data can be a risk to consumers who seek privacy. Your home, your work, every trip you've taken no matter how private: it all can be seen by companies, countries, and individuals you've never given permission to follow your travels, and completely legally.

Struggling to think of a need for privacy besides what's already been extensively reported and debated? One recent example: As certain states attempt to make previously legal medical care (such as abortion, contraception, and basic trans-related medication and care) illegal to access, the modern connected car and its troves of data have the potential to become a governments unintentional best friend and a driver's worst enemy as prosecution intensifies. Even if you're not immediately affected by your car tracking your habits, state law has been changing increasingly rapidlyfamilies in Texas found their access to trans care restricted within a week of the governor's directive to eliminate itand you may find yourself criminalized a week from now unexpectedly over some other arbitrary decision.

The good news is there's already proposed legislation to combat the current freewheeling fate of our privacy. The bad news is we don't know how long that legislation will take to pass, if it does at all.

To understand how driving a car could incriminate someone, its worth examining just what kind of data the car itself collects and transmits.

In 2021, 90 percent of cars sold in the United Statesand around 130 million total cars sold worldwidecontained some form of embedded connectivity. This built-in connectivity can take many forms (built-in Wi-Fi connectivity, infotainment systems that connect to cellular networks, and even Bluetooth systems) but all of them share a few things in common: They collect (and transmit) massive amounts of data, they are usually truly embedded in the physical car (and comprise some core functionality of it), and owners rarely have control of where it ends up. This trove of data is known as telematics, and its a multi-billion-dollar industry with wide-reaching implications for consumers.

Most consumers never have an inkling of just how powerfuland plentifulthis telemetry data is. The raw amount of information itself is overwhelming to consider; a case study by the Washington Post on a 2018 Chevrolet Volt showed that the car generated up to 25 gigabytes per hour of data across every category imaginable; for context, browsing Instagram for an hour uses a mere 720 megabytes. This deluge of data the Volt created included location specifics, even when the GPS was not being actively used by the driver. In the case of the Chevy that was studied, researchers even bought a used Volt navigation system on eBay and were able to construct the previous owners daily life and routine down to their home, workplace, and oft-frequented gas station, simply by poring through stored location data that the infotainment system automatically logged.

An earlier study from 2017, undertaken by a student at the University of Ontario Institute of Technology, pulled similar location data from a variety of late-model vehicles infotainment systems that logged exact coordinates even when the GPS was not engaged. In certain versions of Fords Sync infotainment system installed in mid-2010s-era Fords, the researcher found that vehicle and system generated events also generated GPS coordinates which can further be used to prove the vehicle users exact location at specific times (for e.g. when the vehicle shifts gear and vehicle doors are opened/closed, GPS coordinates are generated).

An example demonstration log in the study, pulled from a 2013 Ford F-150, shows GPS coordinates being stored when opening or closing a car door. With this frequency and precision, its easy to retrace exactly where that truck has been.

But it's not just the data inside your infotainment system that's a concern. All of the data discussed abovethe GPS coordinates of every gear change, the location of every ECU bootis not just stored onboard the car itself, but is frequently sent back to an automaker for storage and analysis.

This massive dataset has extremely advantageous, non-invasive uses for a host of businesses, including the automakers and drivers themselves. Telematics can help professional drivers spot and avoid traffic by analyzing previous patterns; urban planners can use similar data to identify roads prone to jams and create more efficient streets; insurance companies can use it to spot fraud or dangerous driving habits; and manufacturers or fleet owners can identify potential malfunctions to repair (if engines report misfires or check engine lights after driving at high altitudes, for example).

All of this is possible thanks to OEMs sharing these troves of telematics data with other companies, which then provide their own unique analyses. One example of a company like this is Otonomowhich, according to internal presentations shown to investors, is partnered with nearly a dozen automakers including Kia, BMW, Ford, Toyota, Stellantis, GM, and even heavy equipment manufacturer Bobcat. Otonomo offers an array of services all underpinned by its large collection of automobile data to a variety of consumers, which include tech behemoths Amazon and Microsoft, smart-city planners such as BeMobile, and parts manufacturers such as Hella and Continental.

Yet, with this billion-dollar business comes massive privacy implications. Even in massive data sets comprised of millions of different peoples' locations, all of whom are theoretically anonymous, identifying any one person out of those millions is a simple job without a strict concern for data privacy. In a 2019 feature story, The New York Times studied the difficulty of anonymizing location data as it relates to phones, and discovered individuals identities with ease in supposedly anonymous data sets containing timestamped locations of cell phones. Connected cars face the same issues that anonymization cell phones suffer from because the underlying premise of location tracking is that it is deeply difficult to anonymize, especially when the device in question travels with a person to their work and home.

How hard could it really be to anonymize this data? Well, a 2013 study published in Nature showed that four spatio-temporal [GPS locations with a timestamp] points are enough to uniquely identify 95 percent of the individuals," even while using a dataset of 1.5 million people. That is, even with millions of generic data points without a name attached to them, having four from a single person is enough to identify one of them. The only way the researchers found to add back any privacy to users that were anonymously tracked was to coarsen both location and timestamp data: making it less accurate by reducing the accuracy of location logging and giving wider time ranges for each timestamp. This, of course, reduces the usefulness of that data.

But companies have very little incentive to reduce the usefulness of location data because often its specificity is what makes it so valuable. McKinsey, a business strategy group, estimates the telematics data market will be worth a staggering $750 billion dollars by the time the decade is out. The best way to get a share of that lucrative market is with accurate data so that advertisers, police states, and corporations can get the most use from it.

Thats not to say some companies dont try to protect consumer privacy; Otonomo specifically employs what it calls data blurring," which ideally hides the privacy of drivers in compliance with European GDPR laws while still offering useful data for its customers. Otonomo acknowledged a request for comment from The Drive regarding how its data blurring works but was unable to provide technical details on what exact steps it takes for anonymity.

But there are no laws in the U.S. requiring that manufacturers anonymize any of the telematics they collect, and some third-party companies sell services explicitly offering to track specific, targeted vehicles. Not only can this be used by less-than-scrupulous buyers, but previous court precedent in the U.S. allows for federal agencies to buy location datasets to sift through personally identifiable data that would otherwise require a warrant.

With this in mind, The Drive reached out to four auto manufacturersFord, Honda, Kia, and BMWthat all offer modern connected-car functionality in many of their models, and whose privacy policies for use of their vehicles leave the possibility of third-party sale of telematics open. I asked, specifically, what their policies were on third-party data sale and sharing and, if they do share telematics with outside companies, how easily consumers can opt out of it at will.

Ford declined to comment. BMW acknowledged the request but did not provide any details on its data practices in time for publication.Honda referred to its privacy policy and owners manual disclosures for information regarding its telematics policies. In the policy, Honda noted that it can collect trip log information, including trip start time and end time, trip start and end location and that this information can be shared with third parties. The document also noted that this data is generated and transmitted automatically regardless of whether drivers use connected technologies such as HondaLink, although, in the past, the company has declined to track unsubscribed cars without a warrant.

Kia had a stronger approach to data protection. In a statement to The Drive, the company stated that Kia America collects geolocation data only on consumer-owned vehicles in the United States that are equipped with connected vehicle technology and have been enrolled by the owner in our Kia Connect service. Furthermore, the automaker noted,[Kia America] does not aggregate vehicle geolocation data, nor do we sell such data to third parties. While affiliated global Kia companies may have a working relationship with Otonomo, [Kia America] does not share vehicle data with that company. The company said that the only time that geolocation data is shared with law enforcement is when presented with a valid court order or warrant, or if an owner consents to share it during an active vehicle-theft investigation.

Separately, a Genesis representative assured us in another story that the biometric data the GV70 can collect for the SUV's fingerprint unlock and startup capabilities stays with the car itself and does not get shared with the company.

With this level of data on hand, few safeguards legislatively in place, and a very scattered set of privacy policies that can vary widely by manufacturer, the potential for a car to betray a persons privacy in a newly fraught legal landscape is clear. For example, there are already states that have not just banned care but also made it legally questionable to travel to another state for it, with Texass anti-abortion and anti-trans-care laws being the most obvious.

The states anti-abortion law weaponizes civil courts against anyone suspected of assisting in abortion (including, for example, driving someone out of state to a clinic where abortions are legal to obtain). Its anti-trans-care laws are somewhat differently formatted, but they allow state Child Protective Services to investigate any parents suspected of confirming their childs gender identity, which includes driving out-of-state to clinics where puberty blockers or trans-specific therapy are offered to minors. Idaho recently attempted to pass a similar bill punishing parents with up to life in prison for traveling out-of-state to get their children trans-related care; the bill died in the state Senate, but lawmakers indicated that they would be willing to pass a more narrowly targeted bill in the future.

With the troves of data offered by patients cars, however, theres a very clear risk, as what was once considered basic medical care becomes criminalized. Even assuming every other step for data privacy is takensuch as not traveling with a cell phone and avoiding digital communication while seeking carehaving a car automatically log that its doors were opened at an out-of-state Planned Parenthood could be enough to potentially be enough to warrant investigation, civil lawsuits, or even criminal proceedings. To make matters worse, data like this is already out there in the open on the public market, specifically targeting people who've been to clinics such as Planned Parenthood. Poland, for example, is strictly anti-abortion and recently created a registry to track every person who becomes pregnant and seeks any care. The location data for every pregnancy clinic a patient has visited would be a valuable addition to those lists.

Even more shockingly, accessing this data does not require a warrant. The techniques discussed above have already been put into practice by U.S. Customs and Border Patrol, which has been deemed exempt from needing a warrant to search digital devices in general at the border. Thanks to a loophole in the Fourth Amendment (the amendment that prohibits unreasonable search and seizures), state police can also download telematics data during routine police stops if they feel the need to, which means that a traffic stop could quickly become an examination of every place a driver has been for weeks.

However, this still relies on direct access to the car in question, which means that for such searches of telematics to be effective, state action would need to be targeted at specific, already-on-the-radar individuals such as activists and doctors (or used against already marginalized groups who are more frequently pulled over). But what if a police agency could just browse through everywhere cars have been, looking for interesting patterns, and tying back specific locations to individuals?

While Kias approach is much more likely to protect drivers privacy, the patchwork manufacturer-driven state of vehicle security means that while a Sorento may be able to glide under the radar, other vehicles may not. The easiest solution to unify the current state of driver privacy would likely come from the top downthat is, closing the Fourth Amendments loophole allowing vehicle telematics to be accessed without a warrant. While there is proposed bipartisan legislation that would do just that and prohibit warrantless vehicle surveillance by U.S. authorities, it hasnt been voted on since its introduction late last year.

In the meantime, I spoke with Mary Stone Ross, the chief privacy officer at the privacy-focused technology firm OSOM and a former employee of the CIA, for thoughts on how consumers could protect themselves. Unfortunately, despite her familiarity with the issue, there wasn't much comfort to be offered.

"I saw how powerful information was from a government perspective [at the CIA], where there actually was quite a bit of oversight and regulation. And then, what these companies had was so much more intrusive and they could do whatever they want," she explained. While she noted that she worked on California's data privacy law, the CCPA, in the pastwhich is currently the strongest privacy law in the nationshe also pointed out that most companies can still do what they want with personal data as long as any use of it has been disclosed in the fine print of a privacy policy.

Even then, it's still better than living elsewhere, as "all of the laws that you've seen passed by [other] states are so much weaker," Ross went on. "And then, there's been really no movement on the federal level... The tech companies are spending so much money, and any sort of privacy regulation they see as an existential threat to their business model, whether it is or isn't."

When I asked if there's anything consumers can do to protect themselves in the absence of strong federal law, she said, "I don't even know what my advice is [to consumers], because even with the rental cars, without safeguards on consumer data at the manufacturer level, its a free-for-all." Yet, in a world where privacy is likely to rapidly go from an afterthought to a central legal battle, her hope is still "that it actually puts pressure on Congress to pass federal privacy laws."

Until legislation is passed, then, consumers should be aware that their car could be an incredible weak point for their personal safety and privacy. If you can, perhaps stick with the ancient beaters, whose most advanced technology is fuel injection.

Got a tip? Send it to tips@thedrive.com

Originally posted here:
Your Car Is Tracking You Just as Much as Your Smartphone Isand Your Data Is at Risk - The Drive

A Rock Island man who spent 22 years in solitary confinement was convicted Thursday of felony gun crimes by a federal jury.

Anthony Gay was found guilty of possession of a firearm and ammunition by a felon following three days of testimony, according to a news release from the U.S. Attorney's Office for the Central District of Illinois.

Sentencing is scheduled for Sept. 16 at the federal courthouse in Peoria. Gay faces up to 10 years in prison, a $250,000 fine and up to three years of supervised release, according to the news release.

Gay was a passenger in a vehicle stopped by Rock Island police officers for a traffic violation on May 31, 2020. Gay fled from the traffic stop but fell as he was being chased by police and was arrested. Officers recovered a loaded handgun that had been reported stolen where Gay fell, according to the U.S. Attorney's Office.

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About two weeks later, Rock Island police were called to a motel where Gay had been renting a room. Prosecutors said motel staff discovered a bag of .45 ammunition while cleaning Gay's room and removing his belongings.

"The government also established that Gay had a number of prior felony convictions, including robbery, aggravated battery and possession of a weapon in prison," according to the U.S. Attorney's Office.

Gay was released from prison in 2018 after serving 24 years in prison, 22 ofwhich were spent in solitary confinement in Illinois.

Gay was sent to prison in 1994 when he was 20 years old for violating probation on a robbery charge. He was driving a car without a license and was on parole for a robbery in which he stole a hat and a $1 bill. His original seven-year prison term was subsequently extended with additional sentences totaling 90 years for assaulting correctional officers, including throwing bodily fluids. A mistake in sentencing led to consecutive sentences for each of those 17 offenses committed between 1998 and 2001.

Gay filed a federal lawsuit against current and former Illinois Department of Corrections officials; Wexford Health Sources, which provides medical and mental health care to IDOC inmates; and several wardens and assistant wardens at specific prisons where Gay was held for psychological damage suffered during solitary confinement and abuse from prison guards.

While serving his original seven-year sentence, Gay alleges in court filings that he began to manifest a mental illness that caused him to act erratically. He was placed in solitary confinement following a fight with another inmate.

During his time in prison, he was diagnosed with borderline personality disorder. He was prescribed psychotropic drugs, but that did not stop him from self-harming, Gay told The (BloomingtonNormal) Pantagraph.

Gay said that rather than being treated for his mental illness, he was continuously punished for his actions by being placed in solitary confinement with little human interaction. He was typically not allowed outside his cell, even for meals, and was only sometimes let out for short periods to exercise, The Pantagraph reported.

Settlement offer reached with Rock Island

Also on Thursday, the city of Rock Island reached a tentative settlement offer with Gay in a lawsuit filed against the city and two Rock Island police officers for alleged misconduct over a May 2020 traffic stop.

According to court filings, Gay on Thursday accepted an "offer of judgment from the city and two officers for $22,500, plus attorneys fees and costs, according to court filings. An offer of judgment, pursuant to Federal Rule of Civil Procedure 68, is used to encourage settlements and protect parties willing to settle early in the litigation process.

Gay's attorney and an attorney for the Rock Island police officers named in the lawsuit did not immediately return messages seeking comment Friday morning.

In his complaint, Gay claims he was in a vehicle with family members stopped at an intersection on May 23, 2020, when they were shot at 13 times. Gay, in his handwritten complaint, said a cousin had been shot and killed earlier that day and two other cousins were injured in the shooting, and that he and three other cousins had left the hospital when the shooting occurred.

Gay said he was ordered at gunpoint by responding Rock Island police officer J.T. Key to put his hands in the air and get on his knees. He claims another officer, Scott Gable, "aggressive cuffed and forced" him to his knees after telling officers he could not kneel. While cuffed, Gay alleges Key "ran up and kneed" him in the face.

He also alleges police illegally searched him, threw his phone and illegally seized $1,500 in cash and a hotel key.

His suit claims Rock Island police violated his Fourth Amendment right, which prohibits unreasonable searches and seizures. Other counts alleged in the complaint include battery, intentional infliction of emotional distress, unlawful detainment, unlawful imprisonment and denial of equal protection.

Rock Island Mayor Mike Thoms, who Gay alleges ignored and failed to report his claims of police misconduct, on Friday said he was unaware of the offer of judgment and could not comment.

Phone messages left with city administration and police officials were not immediately returned early Friday afternoon.

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View original post here:
Rock Island man who spent 22 years in solitary confinement convicted of federal gun crime - Quad-City Times

Published: 5/19/2022 1:16:34 PM

Modified: 5/19/2022 1:14:49 PM

I agree with Frank Barrett (Recalling early days of the Hopkins Center, May 13) that the Valley News article on the Hopkins Center (Connecting campus to community, May 2) was well done, but both of these writers failed to mention, even in passing, the name and contribution of Warner Bentley. It was almost all about bricks and mortar.

Warner Bentley was the first director of the Hop and spent his entire adult life from 1928 until his retirement in 1969 as a Dartmouth professor and administrator, and yet, there was nothing to acknowledge his contribution to the performing arts at the college.

When Warner Bentley graduated from the Yale Drama School in 1928 (94 years ago), he was encouraged to come to Dartmouth by President Ernest Martin Hopkins, who promised to build a theater and support theater art. He got his theater 34 years later just seven years before his retirement. Warner remained in Norwich almost until his passing in 1987, so he was able to see and enjoy the continuing success of the Hopkins Center.

There is a bust of Warner at the Hop, and students passing by rub his nose for good luck. He was a legend at Dartmouth and he is still with us. There is another story there.

William J. Montgomery

Hanover

Gov. Sununu disappoints on abortion rights

Right now, abortion rights are federally protected in all 50 states, but the recent Supreme Court leak indicates that it is likely to change soon. While abortion would remain legal in New Hampshire before 24 weeks, it will take work to preserve those rights into the future given the states current legislative makeup.

Gov. Sununu might say hes the reason that abortion is, and will remain, legal in New Hampshire. He might say hes a pro-choice governor. He might boast that hes proud to sign a bipartisan bill that expands abortion access in the coming weeks.

But his actions speak louder than words. He is not a pro-choice governor.

In 2018, Sununu put his full support behind Justice Kavanaugh, whose appointment by former President Trump helped seal the fate of Roe.

In 2020, Sununu vetoed the Reproductive Health Parity Act, which would have removed financial barriers for people seeking access to abortion.

And in 2021, Sununu signed New Hampshires first modern abortion ban into law.

This year, bipartisan legislation has been adopted to address some of the harm caused by Sununus abortion ban, and hes trying to take credit now for expanding access to abortion.

If the U.S. Supreme Court overturns Roe v. Wade, well need elected officials that will protect and expand abortion access in New Hampshire. But the bottom line is, Gov. Sununu doesnt trust Granite Staters, and we cant trust him to protect our reproductive rights.

Fiona Greenough

Meriden

Our Declaration of Independence is foundational to what Americans believe and the basis for the U.S. Constitution. It says that all men (meaning human beings) are created equal and have rights that cant be changed: life, liberty and the pursuit of happiness.

It says that government powers come from the consent of the governed the people thats US! The May 12 commentary in the Valley News, Leak casts doubt on issues beyond abortion, mentions constitutional amendments and Supreme Court cases but is incomplete.

The Third Amendment forbids quartering soldiers in homes without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Forcing homeowners to do this was certainly an invasion of privacy.

The Fourth Amendment begins The right of the people to be secure in their persons ... What does this mean? In a 1965 case, the Supreme Court found that a state law outlawing birth control was unconstitutional an invasion of privacy, as people were not secure in their persons from the governments interference.

When did We the People give the government the right to limit abortion?

Limitations on rights are needed when other people or society are affected. In abortion, the woman and perhaps the male are involved. Some argue, as Executive Councilor Joseph Kenney wrote to me, the unborn has a right to be born. Where did this right come from? Some churches may teach that this exists, given by their Creator, but is this fair for everyone? If it is not fair for everyone, then abortion should not be forbidden.

And if the government makes laws based on the teachings of some religions, isnt that violating the First Amendments forbidding a law respecting an establishment of religion?

Howard Shaffer

Enfield

The rest is here:
Forum, May 18: Warner Bentley's unsung contributions to the Hop - Valley News

Two weeks ago, in United States v. Rosenow, the Ninth Circuit handed down a decision that has a brief but truly stunning passage with major implications for the future of Fourth Amendment law. If the passage stays in the opinion, it's going to have a quite dramatic effect, perhaps inadvertently, on how the Fourth Amendment applies to computers and the Internet. And in my view, those effects are bad. Really, really bad. In this post, I want to say why the passage in Rosenow is so important, and why it's so disturbing. And I'll suggest a possible path forward to deal with it.

I. An Overview of the Rosenow Case

Rosenow arose out of an investigation into child exploitation in the Philippines. Two large Internet providers, Yahoo and Facebook, ended up being involved. That led eventually to Rosenow's arrest on his return from the Philippines to the United States and a search through his computers pursuant to a warrant. The search revealed child sexual abuse material (CSAM), also known as child pornography, including some involving sexual acts between Rosenow and prepubescent Filipina girls. On the basis of the images found on his computer, Rosenow was convicted of sexual exploitation and CSAM possession.

On appeal, Rosenow made several different arguments in his merits brief. A majority of the merits arguments were on Fourth Amendment law. The primary Fourth Amendment claim was that Yahoo and Facebook had become state actors, and that their accessing account information was a government search that triggered the Fourth Amendment. But Rosenow also challenged other parts of the investigation, including the validity of the warrant obtained and whether accessing basic subscriber information was a search.

The Ninth Circuit affirmed in a published opinion by Judge Forrest, joined by Judge Callahan, with a partial dissent by Judge Graber. The Court ruled that Facebook and Yahoo were acting as private actors, not state actors; that the warrants were valid, and that accessing basic subscriber information is not a search under the Fourth Amendment. Judge Graber dissented in part as to one aspect of the state action ruling.

So far, this seems like an interesting decision, although on the whole relatively minor in its significance. It's mostly fact-specific issues (such as where the state action line is) or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search). It also has a lot I very much agree with, such as the specific ruling that the Stored Communications Act doesn't make Internet providers state actors.

But that's not all. There's more. And that "more" turns out to be really big -- much bigger in its importance, I think, than everything else in the Rosenow opinion.

II. The Stunning Passage in Rosenow

What is that really big thing? In his merits brief, Rosenow claimed that a set of other practices, including the preservation of his Internet account contents, violated the Fourth Amendment. The argument is less than a page of the brief, see page 64, and the only material specifically about preservation is a single sentence saying that the preservations were seizures.

To my great surprise, Rosenow's merits opinion took on those claims and rejected them on the merits. And because Rosenow is a published opinion, its holding is now binding in the Ninth Circuit. In the 45-page published opinion, here's the totality of the discussion of preservation and the Fourth Amendment:

Were the preservation requests unconstitutional seizures?

Acting pursuant to 18 U.S.C. 2703(f), which requires an ESP "to preserve records and other evidence in its possession pending the issuance of a court order or other process," the government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications. Rosenow contends that these requests were an unconstitutional seizure of his property.

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.

Yikes!

III. Why the Passage Is So Important, and Why It's Really Bad.

Why is this passage so important? There are two main reasons, I think. The first is narrower, and the second broader. Let me start with the narrower reason (although it's still pretty broad!).

First, as regular readers know, I think the Fourth Amendment makes most Internet content preservation unconstitutional. You can see my full argument in this recent article of mine: The Fourth Amendment Limits of Internet Content Preservation. And you can see the argument fully written out as defense counsel might litigate it in this draft motion to suppress I recently wrote. I think this is a hugely important issue, although it remained almost entirely unlitigated, much to my frustration. No federal court of appeals has decided this issue until Rosenow. The Ninth Circuit heard oral argument on this issue and had extensive briefing on it (with amicus oral argument participation, and briefing, from the ACLU) in United States v. Basey in 2019, but the panel did not reach the question in its decision.

For the Ninth Circuit to weigh in in this fashion when it wasn't fully briefed, and to reject these claims on the merits, is a big deal. It means that the government is free to pursue unlimited preservation, even though the major (and to my mind persuasive) arguments for why it shouldn't be able to do that have not been presented to the court that is saying this is permissible.

That's huge. Under Rosenow, any government official can at any time order any Internet provider to run off a copy of anyone or even everyone's entire account contents. The only authority on the question is now Rosenow, which rejects the claim. I think this is all wrong on the merits. But more importantly, it's wrong on a vast scale: As explained in my article, there are hundreds of thousands of Internet preservations occurring every year. This passage in Rosenow gives any government official a blank check to order any preservation of anyone or everyone's account without limit. To decide this important a question in such a brief and unexplained passage is remarkable.

So that's the narrower (but again, pretty broad) problem. Here's the even broader one. The particular way that Rosenow rules for the government is incredibly far-reaching and deeply troubling. Here's the key passage again:

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.

This is a remarkably far-reaching ruling, and all in just two sentences. Whether and when copying data is a Fourth Amendment seizure is one of the foundational questions of the future of Fourth Amendment law that has been in the background of the caselaw for years. And it's also been a topic in scholarship for a long time, including stuff I have spent a lot of time on. As longtime readers may remember, in 2005 I initially concluded that copying wasn't a seizure. By 2010, however, I had changed my mind, and I wrote an article explaining why copying ordinarily is a seizure, using preservation requests as an example: Fourth Amendment Seizures of Computer Data, 119 Yale Law Journal 700 (2010).

District courts have divided on the question. And the one federal court of appeals ruling on it, which had held that copying is a seizure, was vacated when the court went en banc (presumably for reasons other than the seizure ruling, as there was a lot more going on in the case). SeeUnited States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government's retention of electronic copies of the defendant's personal computer "deprived him of exclusive control over those files," which was "a meaningful interference with [the defendant's] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment."), vacated by United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc). So until Rosenow, there was no circuit court precedent on this foundational question.

By ruling that copying is not a seizure, the Ninth Circuit becomes the first circuit court to have ruled on the question in a decision that is still on the books. And the question is of dramatic importance, as the introduction to my 2010 articleflags:

Imagine the police take away a suspect's computer, make a digital copy of its contents, and then give the computer back to the suspect. The police do not open the copy, but they keep it in their custody in case they need to access it later. Does the combined act of copying the files and retaining the copy trigger the Fourth Amendment?

Next imagine that FBI agents believe a particular person is using the Internet to commit a crime. Agents install a surveillance tool at the target's Internet service provider (ISP), and the tool generates copies of all of the target's incoming and outgoing email. The email is copied to a file, but no human being actually looks at the file. Instead, the agents keep the file in case they develop probable cause to look through it for evidence. Again, does the Fourth Amendment allow it?

The answer to both scenarios depends on whether copying computer files without looking at them constitutes a Fourth Amendment "seizure. If copying a computer file amounts to a seizure, then the government cannot make and retain a copy absent special circumstances. On the other hand, if copying is not a seizure, then the government can make and retain the copy without restriction. The Fourth Amendment will limit looking through the copy because that is a Fourth Amendment "search. But what if the government wants to make a copy and hold it? Does that constitute a "seizure"?

Putting the preservation issue aside, a ruling that copying is not a seizure has extraordinary implications. Whether you agree with that holding or disagree with it, I don't think it's a conclusion that is best reached in a precedential opinion in just two sentences.

And that's not all. The Rosenow passage includes this sentence:

It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.

What were those terms of use? Earlier in the decision, the court notes a fairly standard term in its privacy policy, here Yahoo's, that Yahoo may disclose information "to investigate, prevent, or take action regarding illegal activities . . . , violations of Yahoo's terms of use, or as otherwise required by law." I assume that's the term they had in mind.

I'm not entirely sure how to read that "note." But read fully, it seems to be suggesting that agreeing to terms of use governing an Internet account can eliminate Fourth Amendment rights. In particular, the provider telling you in the fine print when you register the account that they might end up giving your data to the government in some situations is treated as forever blanket consent to that as a matter of Fourth Amendment law.

As a matter of Fourth Amendment law, I think that would be wrong, for reasons I argued here. But it's also about as far-reaching as you can get. If agreeing to standard terms of service is consent to a possible seizure, then presumably it is also consent to a possible search. That would mean that Fourth Amendment rights online can be reduced to zero through a standard online term no one reads, and that users can't avoid, that were created just to make sure no one can sue the providers for complying with valid legal process. I don't want to be apocalyptic, but this seems really really bad.

IV. A Possible Way Forward

What are the prospects for further review? En banc review is possible. Counsel for Rosenow has received an extension for a petition for rehearing, until June 8. When the petition for rehearing is filed, it's possible that the court could want an en banc panel to take a look at the preservation issue, which could lead to a new opinion. And I would certainly support a full look at the preservation issue by the en banc court.

But there's also a narrower way, should the court not want to go en banc on this or another part of the case. It seems to me that another way forward would be for the panel to just amend the opinion, only changing that passage, to say the issue will not be addressed because it was not fully briefed and was therefore waived.

Here's some context. Under Ninth Circuit practice, an issue is deemed waived unless the appellant "specifically and distinctly argue[d] the issue in his or her opening brief." United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). The appellant has to specifically and distinctly raise the issue, and it then has to be "supported by argument" in the opening brief, for the Ninth Circuit to rule on it. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).

As I read the opening brief, whether preservation is an unreasonable seizure was neither specifically and distinctly argued nor supported by argument in the opening brief. Here's the full section from the opening brief:

The government's subpoenas and preservation requests were also illegal searches and seizures under Carpenter.

The recent Supreme Court case Carpenter v. United States, 138 S. Ct. 2206 (2018) also instructs that Rosenow had a legitimate right to privacy in his digital data, and that it violated the Fourth Amendment to interfere with that right without a warrant and probable cause. In Carpenter, the government obtained orders directing wireless carriers to provide cell-tower data regarding several criminal suspects. Id. at 2212. The Supreme Court reversed the resulting conviction, holding that warrantlessly obtaining this information violated the Fourth Amendment. In so doing, it rejected the notion that the third-party doctrine insulated this information from Fourth Amendment scrutiny, noting that thirdparty- doctrine cases did not deal with "confidential communications" and other private information. Id. at 2219. [FN158] The Court held that a warrant should have been required: "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" it observed. Id. at 2221 (emphasis provided). "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." Id. at 2222.

Carpenter demonstrates that searches and seizures occurred here. The government seized Yahoo records through ongoing preservation requests, with no notice to Rosenow. And it both seized property and affirmatively prompted additional searches by issuing administrative subpoenas to Facebook. Under Carpenter, this should have required a warrant showing probable cause. Because the government had neither, this evidence should have been suppressed.

[FN158: Even the dissent seemed to concede that private communicationsas opposed to mere location datawould not be governed by the third-party doctrine. See id. at 2230 (Kennedy, J., dissenting) ("Miller and Smith [the leading third-party cases] may not apply when the Government obtains the modern-day equivalents of an individual's own 'papers' or 'effects,' even when those papers or effects are held by a third party.") (citing Ex parte Jackson, 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak, 631 F. 3d 266, 283-288 (6th Cir. 2010) (e-mails held by Internet service provider)).]

The claim here seems to be that, somewhere in the subpoenas and preservation requests, there were unreasonable searches and seizures. Most of the passage seems to be arguing that the subpoenas were searches under Carpenter, a claim that in my view the Ninth Circuit properly rejected.

But here's the key. As I read that passage, it doesn't seem to be separately and distinctly claiming that preservation is an unreasonable seizure, or offering a legal argument for why that might be. The test for what is a seizure is not even mentioned. How the test might apply is not mentioned. The test for the reasonableness of a seizure is not mentioned (much less applied) either, except to say that a warrant should have been required. Compare that passage to the model brief I recently posted. It seems to me that the opening brief in Rosenow did not put the court on notice of the legal questions before it on the preservation issue. You'd have to guess what the specific arguments were on the preservation issue, as the opening brief didn't flag them, much less make them.

I don't mean to criticize the hard-working counsel in the case. I believe Rosenow was the first case ever to get an opinion on the Fourth Amendment issues raised by preservation in the trial court decision. To use an exam-grading analogy ('tis the season): The issue was spotted, unlike all the other cases where counsel have just missed it. The opening brief raised a lot of issues, and went right up to the page limit, so it may not have been developed because of other issues in the case. And I agree that the preservation issue was addressed in more detail in the Ninth Circuit reply brief.

But it seems to me that, if the court doesn't want to take this enormously important set of questions on en banc, it might be wise to amend the panel opinion to recognize that there's a lot more going on in the case than the panel realized given that the issue was not fully developed in the opening brief. That would make no difference to the outcome. And it would just replace a single paragraph in the opinion, as the analysis paragraph would just become a waiver paragraph. But it would mean that these critical and novel legal issues could wait for full briefing and decision in another case.

As always, stay tuned.

[UPDATE: I fiddled a bit with the post shortly after posting it.]

Continue reading here:
The Ninth Circuit's Stunner in Rosenow, and Thoughts on the Way Forward - Reason