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My latest article, The Fourth Amendment Limits of Internet Content Preservation, was recently published in final form by the St. Louis University Law Journal. Here's the abstract:

Every year, hundreds of thousands of Internet accounts are copied and set aside by Internet providers on behalf of federal and state law enforcement. This process, known as preservation, ordinarily occurs without particularized suspicion. Any government agent can request preservation of any account at any time. Federal law requires the provider to set aside a copy of the account just in case the government later develops probable cause and returns with a warrant needed to compel the account's disclosure. The preservation process is largely secret. With rare exceptions, the account owner will never know the preservation occurred.

This Article argues that the Fourth Amendment imposes significant limits on the preservation of Internet account contents. Preservation triggers a Fourth Amendment seizure because the provider, acting as the government's agent, takes away the account holder's control of the account. To be constitutionally reasonable, the initial act of preservation must ordinarily be justified by probable causeand at the very least, in uncommon cases, by reasonable suspicion. The government can continue to use the Internet preservation statute in a limited way, such as to freeze an account while investigators draft a proper warrant application. But the current practice, in which investigators order the preservation of accounts with no particularized suspicion, violates the Fourth Amendment.

The article begins:

Imagine you are an FBI agent. One day you receive an anonymous tip that a particular person has committed a crime. You go online and search for the person's name, and your search reveals that, like most American adults, the person has a Facebook account. At this point, you only have an unverified tip. You lack reasonable suspicion, much less probable cause, to believe a crime was committed. And you have no particular reason to think the Facebook account was involved. But imagine federal law gave you the power to preserve and set aside the suspect's entire Facebook account nowincluding every private message and every saved photojust in case you later had the probable cause needed to access it.

Let me explain how this hypothetical law would work. At any time, you could command any Internet provider to save all of the contents of any account for up to 180 days. In response to your command, the provider would copy the entire account and set aside the copy for you without notifying the account holder. You would be unable to see the contents of the account unless you eventually develop probable cause and obtain a warrant. But you would have 180 days to develop probable cause. If no probable cause emerged, the preservation would end, and the provider would delete the saved copy without notifying the suspect. And if you developed probable cause during the 180-day period, you could get a warrant and compel the provider to hand over the contents of the account that had been previously preserved.

This hypothetical law would have obvious appeal for government investigators. A lot can happen in 180 days. The suspect might delete incriminating files. The suspect might get wise to the investigation and delete his online accounts to prevent the government from accessing them. By saving accounts at the beginning of a case, investigators could ensure that every record in existence at the outset is available if probable cause later develops. And it would all happen behind the scenes, as the provider would not disclose the preservation to the account holder. Even if the government eventually obtained a warrant and filed criminal charges, the preservation would not be disclosed during routine discovery. The entire process would remain secret.

As you might have guessed, this scenario is not just hypothetical. It describes a federal law, 18 U.S.C. 2703(f), as it is interpreted and used today.

Continue reading here:
Final Version, "The Fourth Amendment Limits of Internet Content Preservation" - Reason

from the striking-cold-irons-still-counterproductive dept

As courts seemingly have to remind school administrators (and their partners in unconstitutional crime, school police officers), students -- even minors -- still have constitutional rights. The First and Fourth Amendments are the most frequently violated, despite there being no lack of precedent upholding students' rights.

This latest rebuke of law enforcement overreach comes via the Colorado Court of Appeals (and via FourthAmendment.com). In this case, a Denver, Colorado student had his backpack warrantlessly searched by school security officers. This search resulted in the discovery of marijuana and paraphernalia, which led to juvenile charges against the minor, referred to in the opinion [PDF] as "C.C-S."

The reason the search was unconstitutional has a lot to do with how the school officers got it into their heads that C.C-S. should be detained and searched. The state of Colorado maintains an anonymous tip line called "Safe2Tell" which allows students and faculty to report suspicious activity or behavior to school officials.

The Safe2Tell tip that initiated this chain of unconstitutional events was old news by the time it was forwarded to DPS (Denver Public Schools) officials and, because of its origin, could not be corroborated.

A school security officer employed by Denver Public Schools (DPS) received a report that C.C-S., a student at a DPS high school, had been seen in a Snapchat video shooting a firearm out of a car window.

[...]

By the time the Snapchat video showing C.C-S. was reported to Safe2Tell on February 25, 2018, it was about one month old. At that point, no one was able to review the footage because videos posted on Snapchat automatically disappear from the platform after twenty-four hours, unless they are saved.

Nevertheless, school officials decided to act, relying on little more than this and another unsubstantiated (and unrelated) allegation.

Although unable to review the Snapchat video, the dean of C.C-S.s school told the school security officer that C.C-S. had a history of bringing things to school that he shouldnt, such as drugs and things like that.

"Drugs and things." Leaves a lot open to the imagination, which is what was exercised by school security officers, who took two uncorroborated reports and combined them into a search unsupported by probable cause.

At that point, the school security officer decided to search C.C-S., based on the Safe2Tell firearm tip, the deans comment, and the security officers policy of searching every student and their backpack when he received a Safe2Tell report that the student had either drugs or weapons. Once C.C-S. arrived at school, he was taken to an office for questioning by the school security officer, as well as a campus security officer, who was also employed by DPS but was stationed at C.C-S.s school. With the door closed, the DPS officers told C.C-S. about the information they had received from the Safe2Tell tip and told him they were going to search his backpack.

C.C-S. refused to consent to a search and, after further discussion, attempted to leave the office. The DPS officers would not allow him to leave, instead reiterating that they were going to search his backpack. After the campus security officer asked C.C-S. whether he was refusing to allow the search because he had drugs in his backpack, C.C-S. confessed that he had drugs in his backpack and handed it over to the officers to be searched.

That's not consent. That's the implication that a search is going to take place, with or without cooperation. Keeping someone in a room and refusing to let them leave pretty much takes consent out of the equation. That only makes things worse for the school officers and the case they thought they had built against C.C-S.

Rights are rights, and while they are limited on school campuses, they are not nonexistent. The officers needed at least reasonable suspicion to approach and search C.C-S. and they didn't even have that.

[W]e conclude that the Safe2Tell tip was insufficient to provide reasonable suspicion. We reach this conclusion for four reasons. First, as noted above, the tip was anonymous. Second, the information provided in the tip was stale. Third, because it was anonymous and stale, the limited information in the Safe2Tell tip did not provide reasonable suspicion that C.C-S. had committed or was about to commit a crime. And, fourth, the information about C.C-S.s past behavior at school did not corroborate the Safe2Tell weapons tip.

Information about someone seen on SnapChat a month ago isn't a good tip, or an actionable tip, or even a somewhat fresh tip. It may prompt some additional "keeping an eye on" by administrators but it cannot justify a seizure and a search, even on school grounds, and even with the district's apparently unconstitutional policy of searching every student that has been reported via a Safe2Tell tip.

The school dean's "tip" was no better and created no additional reasonable suspicion. The tip mentioned drugs, not weapons, and there was no information given that implied or stated the student had brought weapons onto campus before.

The state argued that this was asking too much from the Safe2Tell program, which guarantees students' anonymity. Au contraire, says the court. This program may be useful and aid in public safety efforts, but it cannot summarily revoke students' rights for these reasons or by its mere existence.

While we recognize the importance of Safe2Tells role in preventing school violence, investigations based on Safe2Tell tips by DPS security officers and other school officials must occur within the bounds of students Fourth Amendment rights.

As for the supposed "consent" to a search, the court says there was no consent.

[W]e conclude that the uncorroborated Safe2Tell tip did not justify detaining C.C-S. Because he was unreasonably detained, we may not rely on his admissions made during that unlawful detention to uphold the search of his backpack.

The state also argued that the exclusionary rule does not apply to juvenile cases or school security officers. Wrong again, says the court. The rule applies to government employees and their actions, which encompasses school administrators and school security officers.

We conclude that applying the exclusionary rule in school searches conducted by DPS security officers would deter Fourth Amendment violations. Those security officers perform quasi-law enforcement functions, inasmuch as the evidence they collect is often used in juvenile delinquency adjudications such as this one.

[...]

To apply the Fourth Amendments exclusionary rule to school searches is therefore a logical extension of Supreme Court precedent. Its application here is especially appropriate since school security officers, whether acting in concert with the police or not, are governmental actors.

There goes the evidence obtained during the illegal search which would be all of the evidence. Without it, all the government has is C.C-S., who may or may not have been the person seen by some student in some Snapchat video officers never viewed and which had vanished from the service long before the tip was sent in. The state has nothing to prosecute with. But maybe it has at least learned it can't treat students like detainees following extraordinary rendition. Students have rights and the government -- at least in this case -- gains nothing by ignoring them.

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Filed Under: 4th amendment, anonymous tips, backpack search, colorado, evidence, police, rights, school police, sro, students, tips

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Students Have Rights: Court Dumps Evidence After Cops Rely On A Month-Old Anonymous Tip To Search A Minor - Techdirt

A few days before the elections, a dozen law enforcement unions demanded an overhaul of New York state laws on bail and discovery.

The issue was prominent in the race for Nassau County district attorney, in which Republican Anne Donnelly defeated state Sen. Todd Kaminsky, a Democrat, who had voted for an overhaul of state bail laws that eliminated pretrial detention and monetary bail conditions for most misdemeanors and nonviolent felonies.

The law enforcement unions argued that even though the state Legislature subsequently made changes in the law, it still was allowing dangerous criminals to be released.

At a news conference on Oct. 29, the representative of the law enforcement unions said a recent decision in Suffolk County Court that struck down part of the law showed that the entire bail reform package needed to be overhauled.

On Oct. 22, Suffolk County District Attorney Tim Sini said that a law that allows criminal defendants to move for a court order granting them access to crime scenes, including an individuals home, had been deemed unconstitutional.Sini said the victim in the case would have had Fourth Amendment rights, the expectation of privacy, violated.

At the news conference,John Wighaus, president of the Nassau County Detectives Association, said: The decision that has been reported recently regarding the unconstitutionality of a portion of the discovery law, points out the complete failure of the entire package of extreme bail and discovery laws that were passed in Albany. In particular, the cashless bail law has been disastrous for law abiding citizens.

Supporters of bail reform had argued that the system of cash bail fell heaviest on the poor and members of minority groups who could not afford to post bail.

But at the news conference, Brian Sullivan, president of the Nassau County Correction Officers Benevolent Association, said: Our judges are powerless to detain the majority of dangerous suspects because of the cashless bail law. The courts are forced to turn loose dangerous inmates who are free to wreak more havoc on the community after their release. Something has to be done.

The law enforcement unions endorsed Donnelly in the district attorney race.

Go here to read the rest:
Police union officials demand overhaul of New York bail laws - Williston Times - The Island Now

By Chris Boyette, CNN

An amended lawsuit filed by the estate of Andrew Brown, Jr. alleges one of the officers who fatally shot him told investigators that he altered his gun after the incident and before the weapon was seized as evidence.

Brown, a 42-year-old Black man, was killed on April 21 by Pasquotank County deputies in Elizabeth City, North Carolina, as they were attempting to serve a warrant for his arrest.

District Attorney Andrew Womble announced in May that the deputies who killed Brown were justified in using deadly force, saying Brown recklessly drove at the officers on scene while trying to flee arrest.

The lawsuit alleges that Pasquotank County Sheriffs Investigator Daniel Meads told the North Carolina State Bureau of Investigation (SBI) during an investigation interview that he altered the gun he used to shoot at Browns vehicle while he was in a dark room inside Browns house and before his weapon was confiscated as evidence.

It is unclear what the lawsuit means by altered nor the impact that would have on the investigation.

The suit alleges Meads did not tell SBI investigators about this when they first interviewed him, and only told the investigators after it was seen on another officers body camera footage that he had removed his magazine inside Browns house.

Meads told SBI interviewers that he manipulated his magazine while inside Browns house in order to see how many shots he fired prior to surrendering his weapon as evidence, the lawsuit says.

A police detective from the town of Kitty Hawk, North Carlina, who was on the scene at the time told SBI investigators in an interview that Meads asked him to shine a flashlight on him in Browns house so Meads could count the remaining rounds in the magazine of his Glock-17, according to the lawsuit.

The detective also told SBI investigators Meads was stressing out about how many times he fired his weapon at Browns vehicle, the lawsuit says.

Meads attorney did not respond to CNNs request for comment.

Harry Daniels, a lawyer for the Brown estate, said the lawsuit was amended to include specific allegations against the officers involved because more detailed information came to light after the legal team gained access to the SBI investigation files.

The SBI told CNN that the files were not public record and would not allow CNN access.

The lawsuit now names as defendants Meads, Pasquotank County Sheriff Tommy Wooten, Deputy Sheriff II Robert Morgan, Cpl. Aaron Lewellyn and Western Surety Bonding Company, an insurance company for the department.

Attorneys for Morgan and Lewellyn did not respond to CNNs request for comment, nor did Western Surety Bonding Company. Wootens attorney Christopher Geis said he would be filing a response.

We will be filing an answer to the allegations when the time comes, and that answer will speak for itself, Geis said.

The arrest warrant for Brown was unlawful because it was not signed by a judge, the lawsuit claims.

The suit also says the two ranking officers initially on the scene when police confronted Brown Pasquotank County Sheriffs sergeants told SBI investigators in each of their interviews that they did not fire their weapons because they did not see any indication that Brown had a weapon. One of them told investigators he did not think Browns car was going to hit him, the lawsuit says.

The suit, which does not name the district attorney as a defendant, claims Womble knew or should have known about various statements made in the SBI interviews cited in the lawsuit.

Womble did not respond to CNNs request for comment.

The amended lawsuit makes allegations of assault and battery, wrongful death and wrongful death negligence / gross negligence against all individual defendants.

Plus, it makes allegations of assault and battery against Wooten in his official capacity as sheriff and allegations of excessive force in violation of the Fourth Amendment against Meads, Lewellyn and Morgan.

The suit requests a trial by jury and seeks more than $30 million in compensatory and punitive damages.

The-CNN-Wire & 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

See the original post here:
Lawsuit over Andrew Brown Jr's killing now alleges an officer's weapon was altered after shooting and before it was admitted as evidence - KTVZ

The U.S. is now more than 20 years beyond the Patriot Act of October 2001. The immediate aftermath of 9/11 brought a heavy U.S. state focus on Arabs and Muslims in the U.S., rationalizing an expansion of policing and surveillance activities against them. It also inspired the convergence of shared struggles for liberation out of a growing consensus that we cannot abolish policing without abolishing U.S. militarism and empire building.

The anything goes context of 9/11 opened up possibilities for expanded forms of policing and surveillance that are unconstitutional. The National Security Entry-Exit Registration System (NSEERS), also known as special registration, put in place by the Department of Justice in 2002, targeted Arabs and Muslims as well as those from the Middle East and South Asia. Overly broad interpretations of material support laws denied people generally Arabs and Muslims their freedom and even threatened some forms of humanitarian aid.

But none of this was entirely new. All this was preceded by President Richard Nixons Operation Boulder, which law professor Susan M. Akram has described as perhaps the first concerted US government effort to target Arabs in the US for special investigation with the specific purpose of intimidation, harassment, and to discourage their activism on issues relating to the Middle East.

Ironically, Timothy McVeighs 1995 Oklahoma City attack opened the door to the Clinton administration pushing forward a legislative effort allowing the government to use evidence from secret sources in deportation proceedings for aliens suspected of terrorist involvement. Under the measure, the government would not have to disclose the source of the damaging information to the person whom it is seeking to deport, The New York Times reported. A white extremist, then, had carried out a deadly bombing, but it was Arabs and Muslims (including Black Arabs and Black Muslims) who faced the prospect of deportation without ever being able to confront their accuser or even know the identity of those accusing them.

According to the ACLU:

The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists.

As Arab and Muslim communities were subjected to institutionalized racial profiling, this too frequently encouraged individual anti-Arab and Islamophobic actors who further intimidated and committed acts of violence against Arab and Muslim individuals in everyday life. Between 2000-2009, these violent incidents increased by over 500 percent; since 2016, 484 incidents of hate-motivated violence have been reported and many continue to remain unreported. In the Middle Eastern, North African and South Asian regions, of course, the U.S. military killed people en masse while engaging in torture. The U.S. government also supported authoritarian dictators like Egypts Hosni Mubarak who would further the U.S. imperialist agenda and simultaneously collaborate in the ongoing colonization of Palestine and siege of Gaza.

According to the Project on Government Oversights Jake Laperruque, the U.S., in its rush to crack down on these domestic communities, swept up international communications on an enormous and unprecedented scale. Laperruque also notes that internal U.S. communications were surveilled, as were internet metadata.

When eventually disclosed, this surveillance troubled and infuriated people across the political spectrum, some who cared about ending racial profiling of Arabs and Muslims, and some who generally had spent years inflaming such hatred. Many strands of society were incensed that their communications were being monitored by the government. Yet those with history in U.S.-based Global South liberation movements who were targeted by programs like Nixons Counter-Intelligence Program (COINTELPRO) or those whose ancestors were killed via collaborations between the KKK and the FBI knew all too well that the Constitution was meant to protect white supremacy rather than protecting us all. At the same time, the Patriot Act truly alarmed liberals and radicals alike in its potential to perpetrate a massive expansion in policing, surveillance and repression.

The George W. Bush administration had effectively circumvented the Fourth Amendment with its protections against unreasonable searches and seizures.

Attempts to override the entirely bankrupt legislative action of the USA Freedom Act of 2015, was a consequence less out of concern over targeting Muslims and Arabs than anger over the widespread sweeping up of so much information about U.S. citizens read: white people.

I lived through these past 20 years between communities in California, Illinois and Michigan. The fear was real. While working-class Arab Muslim immigrant men over the age of 16 were forced to register at their local Immigration and Naturalization Service office as part of the NSEERS program, their loved ones stood outside wondering if they would ever see them again.

The reports of violence against Arabs and Muslims and those perceived to belong to those categories were terrifyingly routine. Some stories reached the mainstream media; most circulated simply through word of mouth.

Now, in 2021, following the defeat of former President Donald Trump and his open promotion of anti-Muslim policies, we are witnessing the culmination of efforts led by Muslims and Arabs in the U.S. to build community-based power beyond the psychological and emotional incarceration endured between the Bush and Trump years.

The Arab Resource & Organizing Center in Californias Bay Area along with the Arab American Action Network in Chicago have for years fought back in coalition to support anti-imperialist and abolitionist principles. Left-leaning Arab and Muslim movements are affirming that just because Trump is out doesnt mean these efforts will relent under President Joe Biden, especially not with his interventionist history and long years of support for Israelis colonial policies that have been killing, containing and displacing Palestinians with U.S. weaponry.

These organizations recognize that U.S. empire-building connects movements fighting anti-Black police violence, those pressing back against anti-Arab U.S. militarism and the war on terror, as well as groups resisting the militarization of the border and the ongoing colonization of Native land.

The recent news out of Virginia Beach of an ongoing racist attack on a Black familys home with music blaring racial slurs and monkey sounds as strobe lights flashed at the house while authorities dithered sounded all-too-familiar to me. It reminded me of my own research in 2021 with the Institute for Research on Race and Public Policy in the Chicago area on the status of racial justice for Arab Americans.

I had been connected to a Muslim woman who was harassed by her neighbors for three years, notwithstanding a restraining order. She told me she felt like a hostage in her own home and police were unwilling to stop the ugly attacks from neighbors coming up to the window and shouting, Fk Arabs, fk Muslims. This would be followed by calls for the family to get out of the U.S.

The animosity both families have faced is painful and traumatic and stems from the same root cause U.S. racial capitalism and empire building. But younger generations of Black people, Arabs and/or Muslims have also in the last decade recognized more than ever the necessity of conjoining our struggles against racist police violence.

This was seen most visibly in Ferguson, Missouri, but is also witnessed, for instance, in Palestinian-Black solidarity efforts across the country as young Palestinian Arab activists organize against police violence disproportionately targeting Black people, while Black activists align with the Palestinian call for boycott, divestment and sanctions against Israel.

As the Palestinian Youth Movement said in its 2014 statement of solidarity with Ferguson: Whether the PATRIOT ACT or COINTELPRO, the targeting and criminalization of our communities must end now. These efforts have extended through defund the police and abolition efforts uniting both communities.

Shortly after 9/11, I remember the national coalitions like Racial Justice 9/11 that grew overnight when tens of social movements affirmed their unity in the face of the expanding powers of the U.S. nation-state. Today, similar coalitions are inspired by the shared concern over the ways U.S. counterinsurgency tactics that repress movements have expanded, violently justifying the repression of Black, Indigenous and people of color (BIPOC)-led groups like the Movement for Black Lives.

When the Bush administration consolidated its internal war on Arabs and Muslims with the Patriot Act, it helped show Trump the power to move a portion of the U.S. public toward increasingly outward-facing white supremacy. Yet it also set in motion new coalitions. These coalitions have urgently grown out of the imperialist and racist policies implemented first by President George W. Bush, and then even more openly by Trump.

I wouldnt wish those first traumatic months in 2001-2002 on anyone. Yet the solidarity resulting at least in part from the overreach and unconstitutional nature of the Patriot Act, followed by the racism of the Trump administration, gives me a measure of hope.

For all Trumps efforts to roll back previous social movement wins, many breakthroughs came out of his 2016 presidential victory. More and more grassroots mutual aid movements have materialized, affirming the necessity of growing practices of collective love and reciprocity as alternatives to state violence. Two Muslim women, one Palestinian and one North African, entered the U.S. Congress in 2019 in Palestinian American Rashida Tlaib and Somali American Ilhan Omar. They were joined earlier this year by Rep. Cori Bush, who was active in the Ferguson demonstrations and has openly spoken of solidarity between Black Americans and Palestinians.

In the midst of the Israeli onslaught against Gaza this past May, Representative Bush tweeted: The fight for Black lives and the fight for Palestinian liberation are interconnected. She added: We oppose our money going to fund militarized policing, occupation, and systems of violent oppression and trauma. Tellingly, she spoke of being anti-apartheid.

Their voices in the halls of Congress are unprecedented. The effort to undermine them is intense. Yet we must remember that the long U.S.-led war on terror is an extension of the U.S.s colonial, expansionist and racial capitalist project, rather than an exception. We cannot get stuck in celebratory hope after the defeat of Trump. Presidents Bill Clinton and Barack Obama were not only complicit in the war on terror but also helped expand it.

As Kali Akuno, Brian Drolet and Doug Norberg posted on Facebook on October 27, in their critique of efforts to save democracy, this stance is not an argument to avoid or ignore fighting the further advance of fascistic authoritarianism. It is a critique of a view that restricts people to fighting against certain variants of capitalist governance to the exclusion of fighting against the capitalist system itself.

If anyone recognizes that President Biden does little to help the U.S. achieve democracy, equality or diversity, its my Arab immigrant community. Further, there is no sign of social transformation with Trump continuing to loom on the 2024 horizon and racist provocateurs continuing to organize and contest the 2020 election of a centrist candidate. This is why we need to be willing to imagine a radically alternative future.

Twenty years ago, I remember Arab activists like Rana Elmir demanding an end to the Patriot Act. Forced to reckon with it, they understood its potentially dangerous future. They shouted at protests that it not only expands the containment, repression, and profiling of Arabs and Muslims, but could also massively expand the U.S.s power to repress all progressive and BIPOC communities.

So here we are. Nicole Nguyen, expert on surveillance and the war on terror, reminds us that by expanding the concept of the violent extremist the United States has repressed resistance against the war on terror and resistance against the police.

In the face of this repression, we have no choice but to expand our practices of solidarity, creating hope through the convergence of shared struggles for liberation rooted in collective BIPOC traditions of care, nurturing relations with the land and each other, and in commitments to horizontal, non-hierarchical self-determination.

Read more from the original source:
20 Years After Patriot Act, Surveillance of Arabs and Muslims Is Relentless - Truthout