Tag Archives: Fourth Amendment

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Protect Data Privacy at the Border

Senators Rand Paul (R-KY) and Ron Wyden (D-OR) recently introduced a much-needed, bipartisan Senate bill to combat mobile device searches. Reps. Jared Polis (D-CO.) and Blake Farenthold (R-TX) also introduced this bill to the House. The “Protecting Data at the Border” Act is a vital step towards protecting the American people from one of the most egregious forms of government overreach.

The bipartisan, bicameral bill would shut down what Wyden calls a “legal Bermuda Triangle,” which allows the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to search people’s mobile devices at the United States border without a warrant. If passed, the bill would require law enforcement agencies to obtain a “warrant based on probable cause” before seizing the device of “a U.S. person.” It also prevents law enforcement from denying or delaying entry to the country if a person refuses to turn over PIN numbers, passwords, or social media account information.

Current device search policy applies to U.S. citizens and noncitizens alike and allows the federal government to search cell phones, tablets, and other mobile devices at border crossings without any suspicion of criminal wrongdoing. In 2009, after concerns were raised about the legality of the policy, the DHS conducted a civil liberties impact assessment, which came to the troubling conclusion that such searches are justified. The summary reads:

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

In other words: Fourth Amendment need not apply.

It is abundantly clear that this policy treads all over civil liberties. As the American Civil Liberties Union points out, federal authorities are granted “broader” power near border areas. But those powers do not allow them blatantly to violate Fourth Amendment protections against unreasonable searches and seizures.

Continue reading at RealClearPolicy

Constitution

Sotomayor and the Fourth Amendment

Recently, Associate Justice Sonia Sotomayor came to the defense of the Fourth Amendment in the Supreme Court case Utah v. Strieff. In her dissent, Sotomayor thundered, “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights…This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The case dealt with whether a warrant discovered after an illegal stop makes the stop legitimate. Additionally, if a warrant is found, anything discovered after the stop, like drugs, can be used against an individual in court.

The Fourth Amendment is supposed to protect citizens against unreasonable search and seizures from the government. Additionally, anything discovered after an illegal search is not admissible in court as evidence. The ruling is not only bad for the Fourth Amendment, but also for minority communities.

For example, data compiled by the New York Civil Liberties Union (NYCLU) found that, in 2015, New Yorkers were “stopped and frisked” by the police 22,939 times. Of those searched, 18,353 (80%) were totally innocent,12,223 (54%) were black, and 6,598 (29%) were Latino.

Sotomayor, a Latina-American born and raised in New York, offers a personal perspective on the effect of unreasonable searches on minority communities: “For generations, black and brown parents have given their children ‘the talk’— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”

Over criminalization disproportionately affects the colored community, and Sotomayor takes it head on. Ceding more of the Fourth Amendment to the police is not good for police or citizens of any color. It will make both police and citizens suspicious of each other, which will only further divide them.

Cell Phone Data

The Spy in Your Pocket

Does the government need a search warrant to know where you’ve been? Not if your cell phone provider knows. If you don’t like how that sounds, there may be ways to change it.

Take the case of Quartavious Davis, a Florida man convicted of robbing at gunpoint a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store. The prosecution offered multiple lines of evidence, but there was one in particular that Davis’s lawyers objected to: records the government obtained from Davis’s cell phone provider, MetroPCS.

The records, which MetroPCS kept in its normal course of business, showed “the telephone numbers for each of Davis’s calls and the number of the cell tower that connected each call.” From this information, police concluded that “calls to and from Davis’s cell phone were connected through cell tower locations that were near the robbery locations, and thus Davis necessarily was near the robberies too.”

Prosecutors got their hands on the MetroPCS cell tower records using a court-ordered subpoena. In criminal cases like Davis’s, courts may grant subpoenas on “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Although this standard is higher than that for typical subpoenas, it’s lower than the Fourth Amendment’s probable cause standard.

Read the rest on FEE here.

Attorney General Holder claps in surprise as U.S. President Obama applauds at the announcement that Aretha Franklin would entertain at the unveiling of Holder's official portrait in Washington

Justice Department Proposal Mocks Fourth Amendment

The Justice Department is seeking an amendment proposal that will give the federal government express power to locate and hack into the computers of anyone suspected of criminal activity. However, many organizations, including Google and the American Civil Liberties Union, are concerned that the broad language of the proposal leaves potential for Fourth Amendment violations.

Federal Prosecutors claim that this revision to the Federal Rules of Criminal Procedure  has become necessary now that crime can be committed and concealed on the internet under a veil of anonymity and masked location. But in a memo responding to the concerns civil libertarians have raised, the DOJ makes clear that this amendment is seeking statutory legitimacy for practices the federal government is already engaging in practices that are arguably in direct violation of the Fourth Amendment.

The proposal to amend Rule 41 of the federal rules of criminal procedure fails to guarantee the privacy of those who are not under investigation but who have had access to the same computer as the target of a remote warrant. The DOJ claims that this omission is a non-issue because the federal government already overlooks the reasonable right to privacy provided by the Constitution.

“When the government executes a Rule 41 warrant in the physical world, it is not obliged to provide notice to everyone with a potential privacy interest in the place searched,” the recent memo reads.

The DOJ offers its assurances that this rule change won’t violate the Fourth Amendment or increase the potential for privacy infringements by the federal government. Why? Because executing remote search warrants on property with an unknown location is an exercise already practiced by the federal government.

Read the rest at the Daily Caller…

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DEA Agents Using “Administrative Subpoenas” To Get NSA-Level Data From AT&T

It recently came out that DEA agents have been using NSA data, collected via warrantless wiretaps under the auspices of national security, to investigate drug crimes. Now it’s come to light that the DEA has been for years dipping into an AT&T-run database far more extensive and intrusive than than any NSA program we know of, including PRISM and Boundless Informant.

The story fits into the ongoing news narrative about government surveillance overreach. In fact it goes further. While the NSA has come under fire for keeping the phone number, time and duration of all calls in the United States for up to five years, the DEA program Hemisphere collects all that, plus the locations of callers and has data going back 26 years.

Hemisphere gives the DEA unfettered, unprecedented access to Americans’ call records and has been purposefully kept top-secret. The process seems to be that DEA decides to target someone and they supply their target’s phone number to their AT&T employee and he or she looks back at everyone that person has called, where they were when they called and how long the call lasted, going back 26 years.

However, the real scandal is the way in which this data is collected: without warrants, through what the agency is calling “administrative subpoenas.” In other words, these warrants aren’t approved by a grand jury or a judge, but by the federal agency requesting them. The DEA is writing its own warrants to spy on Americans to gather evidence to make drug arrests.

Wired introduced the administrative subpoena last year, describing it thusly:

With a federal official’s signature… virtually all businesses are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.

In the same article Lawrence Payne, a DEA spokesman, describes an administrative subpoena as having “Obviously, a much, much lower threshold than a search warrant.”

Why this information would be less protected than what is in someone’s home is a question which has not been answered by any of the dozens of federal agencies who now use administrative subpoenas.

As Catherine Crump pointed out for Salon:

Call-detail records are sensitive. Even analysis of a single call can reveal that someone has called a domestic violence or suicide hotline. More call data can be very telling about people’s social networks, as someone called frequently is more likely to be a close friend than someone called rarely. This is not the sort of information the government should access lightly, and certainly not without the supervision of a judge.

A search warrant cannot be issued without probable cause, or the search is considered unreasonable search and seizure. There seems to be no rational basis for excluding this kind of data from that kind of protection. Federal agencies have been asked why they can’t get traditional subpoenas or how often they’re issuing these subpoenas, to no avail.

Excluding data searches from Fourth Amendment scrutiny via administrative subpoenas also increases the chances of a wrongful conviction. Part of the utility of a normal subpoena is that the target then can inform the victim of the search. Administrative subpoenas gag companies like AT&T from telling victims about their surveillance, meaning they cannot fight back, challenge or investigate the evidence against them.

Brian Fallon, a Justice Department spokesman, attempted to justify the program, saying that it “simply streamlines the process of serving the subpoena to the phone company so law enforcement can quickly keep up with drug dealers when they switch phone numbers to try to avoid detection.”

The entire point of a subpoena is to provide a check against law enforcement agencies who would otherwise perform “unreasonable” searches of innocent citizens. Checks such as warrants and subpoenas are set up to be respected, not “streamlined” when they prove inconvenient for federal agents looking to bust drug offenders.