4th Amendment Thread

[de officiis]

Public Service Announcement from the EFF... A Guide to Digital Privacy at the U.S. Border

Highlights:

For a “routine” search (such the disassembly of a gas tank), agents need no warrant or individualized suspicion. For a “non-routine” search (such as a strip search), lower courts have held that agents need reasonable suspicion, though the Supreme Court has not yet addressed this point.

What about device searches at the border?

Lower courts are divided on whether they are routine or non-routine. In U.S. v. Cotterman (2013), the 9th Circuit U.S. Court of Appeals held that “forensic” device searches aided by sophisticated software are non-routine searches that require reasonable suspicion, while “manual” device searches are routine and require no warrant or individualized suspicion of criminal activity.

Freedom from self-incrimination (5th Amendment)
• Courts are grappling with when people have a right to refuse law enforcement demands that they unlock their devices with their passwords or ngerprints.
• Only a judge, and not a border agent, can decide whether the Fifth Amendment protects this information.

See links to their "pocket guide to protecting digital privacy at the border," "longer border guide," and "general surveillance self-defense manual."

[C-Mag]

Thanks for posting that here DeO

[de officiis]

After Snowden: Regulating Technology-Aided Surveillance in the Digital Age

David Cole - 44 Cap. U. L. Rev. 677 (2016)

Abstract

Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state's citizens for their inability to enjoy the rights and privileges we know to be essential to a liberal democracy.

The reality, of course, is that this is our state-with one minor wrinkle. The United States does not directly compel us to share all of the above intimate information with it. Instead, it relies on private sector companies to collect it all, and then it takes it from them at will. We "consent" to share all of this private information with the companies that connect us to the intensely hyperlinked world in which we now live through our smart phones, tablets, and personal computers. Our cell phones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send emails, we share the addressing information, subject line, and content with the internet service provider. When we search the web or read something online, we reveal our interests to the company that runs the search engine. When we purchase anything with a credit card, we pass on that information to the credit card company. In short, we share virtually everything about our lives--much of it intensely personal-with some private company. It is recorded in an easily collected, stored, and analyzed digital form. We do so "consensually," at least in theory, because we could choose to live without using the forms of communication that dominate modem existence. But to do so would require cutting oneself off from most of the world as well. That is a high price for privacy.

http://scholarship.law.georgetown.edu/facpub/1905/

http://scholarship.law.georgetown.edu/c ... ext=facpub

[SuburbanFarmer]

Good post. Depressing. But good.

[Haumana]

After Snowden: Regulating Technology-Aided Surveillance in the Digital Age

David Cole - 44 Cap. U. L. Rev. 677 (2016)

Abstract

Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state's citizens for their inability to enjoy the rights and privileges we know to be essential to a liberal democracy.

The reality, of course, is that this is our state-with one minor wrinkle. The United States does not directly compel us to share all of the above intimate information with it. Instead, it relies on private sector companies to collect it all, and then it takes it from them at will. We "consent" to share all of this private information with the companies that connect us to the intensely hyperlinked world in which we now live through our smart phones, tablets, and personal computers. Our cell phones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send emails, we share the addressing information, subject line, and content with the internet service provider. When we search the web or read something online, we reveal our interests to the company that runs the search engine. When we purchase anything with a credit card, we pass on that information to the credit card company. In short, we share virtually everything about our lives--much of it intensely personal-with some private company. It is recorded in an easily collected, stored, and analyzed digital form. We do so "consensually," at least in theory, because we could choose to live without using the forms of communication that dominate modem existence. But to do so would require cutting oneself off from most of the world as well. That is a high price for privacy.

http://scholarship.law.georgetown.edu/facpub/1905/

http://scholarship.law.georgetown.edu/c ... ext=facpub

Who signed me up to USADA?

[de officiis]

LESSONS LEARNED TOO WELL: ANONYMITY IN A TIME OF SURVEILLANCE

Mike Froomkin - 59 Ariz. L. Rev. 95 (2017)

It is no longer reasonable to assume that electronic communications can be kept private from governments or private-sector actors. In theory, encryption can protect the content of such communications, and anonymity can protect the communicator's identity. But online anonymity--one of the two most important tools that protect online communicative freedom--is under practical and legal attack all over the world. Choke-point regulation, online identification requirements, and data-retention regulations combine to make anonymity very difficult as a practical matter and, in many countries, illegal. Moreover, key internet intermediaries further stifle anonymity by requiring users to disclose their real names.

This Article traces the global development of technologies and regulations hostile to online anonymity, beginning with the early days of the Internet. Offering normative and pragmatic arguments for why communicative anonymity is important, this Article argues that anonymity is the bedrock of online freedom, and it must be preserved. U.S. anti-anonymity policies not only enable repressive policies abroad but also place at risk the safety of anonymous communications that Americans may someday need. This Article, in addition to providing suggestions on how to save electronic anonymity, calls for proponents of anti-anonymity policies to provide stronger justifications for such policies and to consider alternatives less likely to destroy individual liberties. In a time where surveillance technology and laws demanding identification abound, protecting the right to speak freely without fear of official retribution is critical to protecting these liberties.

http://arizonalawreview.org/pdf/59-1/59arizlrev95.pdf

[de officiis]

Police get search warrant for everyone who Googled Edina resident's name

Internet giant Google is vowing to fight a search warrant demanding that Edina {Minneapolis - pop. 50,000} police be able to collect information on any resident who used certain search terms as authorities try to locate a thief who swindled a resident out of $28,500.

Privacy law experts say that the warrant is based on an unusually broad definition of probable cause that could set a troubling precedent.

“This kind of warrant is cause for concern because it’s closer to these dragnet searches that the Fourth Amendment is designed to prevent,” said William McGeveran, a law professor at the University of Minnesota.

Issued by Hennepin County District Judge Gary Larson in early February, the warrant pertains to anyone who searched variations of the resident’s name on Google from Dec. 1 through Jan. 7.

In addition to basic contact information for people targeted by the warrant, Google is being asked to provide Edina police with their Social Security numbers, account and payment information, and IP (internet protocol) and MAC (media access control) addresses.

A spokesperson for Google, which received the warrant, said Friday: “We will continue to object to this overreaching request for user data, and if needed, will fight it in court. We always push back when we receive excessively broad requests for data about our users.”

Information on the warrant first emerged through a blog post by public records researcher Tony Webster. Technology website Ars Technica called the Edina warrant “perhaps the most expansive one we’ve seen unconnected to the U.S. national security apparatus.”

[Okeefenokee]

Police get search warrant for everyone who Googled Edina resident's name

Internet giant Google is vowing to fight a search warrant demanding that Edina {Minneapolis - pop. 50,000} police be able to collect information on any resident who used certain search terms as authorities try to locate a thief who swindled a resident out of $28,500.

Privacy law experts say that the warrant is based on an unusually broad definition of probable cause that could set a troubling precedent.

“This kind of warrant is cause for concern because it’s closer to these dragnet searches that the Fourth Amendment is designed to prevent,” said William McGeveran, a law professor at the University of Minnesota.

Issued by Hennepin County District Judge Gary Larson in early February, the warrant pertains to anyone who searched variations of the resident’s name on Google from Dec. 1 through Jan. 7.

In addition to basic contact information for people targeted by the warrant, Google is being asked to provide Edina police with their Social Security numbers, account and payment information, and IP (internet protocol) and MAC (media access control) addresses.

A spokesperson for Google, which received the warrant, said Friday: “We will continue to object to this overreaching request for user data, and if needed, will fight it in court. We always push back when we receive excessively broad requests for data about our users.”

Information on the warrant first emerged through a blog post by public records researcher Tony Webster. Technology website Ars Technica called the Edina warrant “perhaps the most expansive one we’ve seen unconnected to the U.S. national security apparatus.”

Why does google have their SSNs?

[de officiis]

The fact that they're asking for SSNs doesn't mean that Google has them.

[Okeefenokee]

The fact that they're asking for SSNs doesn't mean that Google has them.

Is that common in a warrant? Demanding someone turn over information they might not have?