4th Amendment Thread

[C-Mag]

Congressional Hearings on Privacy Protection in the Digital Age

[de officiis]

A discussion of the "network investigative technique" (NIT) warrant that the FBI used to arrest consumers of child porn who accessed the Playpen website through anonymizing browsers, and whether such warrants are constitutional under the Fourth Amendment.

https://www.bna.com/dragnet-hacking-war ... 014453360/

[SuburbanFarmer]

A discussion of the "network investigative technique" (NIT) warrant that the FBI used to arrest consumers of child porn who accessed the Playpen website through anonymizing browsers, and whether such warrants are constitutional under the Fourth Amendment.

https://www.bna.com/dragnet-hacking-war ... 014453360/

Have to admit, they chose their target well, for this first experiment. Anything other than suspected pedophiles would have the internet ready to explode.

[Ex-California]

DOJ Tells Court There No Need To Establish A Warrant Requirement For Stingray Devices

[SuburbanFarmer]

This thread is rage juice for me.

[de officiis]

Rand Paul: ‘We Can’t Live In Fear Of Our Own Intelligence Community’

U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of “non-U.S. persons” who are outside the U.S., even though this law sidesteps the Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.

How many American citizens is the government listening in on? We don’t know, as the intelligence agencies told Congress they can’t say just how many American citizens they’ve eavesdropped on (without warrants).

Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.

Congress would probably do this too if it wasn’t for the fact that they’ve recently learned their privacy is also at stake. Recent “unmaskings” show that even a congressman’s conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didn’t do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.

“We cannot live in fear of our own intelligence community,” said Sen. Rand Paul (R-KY). “They have such power to suck up every bit of every transmission, every communication we ever made. We can’t just have them willy-nilly releasing that to the public.” Read: John Q. Public's calls? No problem...

In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), aren’t so keen about what this law can do to them. They’ve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges. Not to mention the disclosure of how soft money from wealthy donors warps their voting habits

Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.

Holy shit the IC is snooping on US now, we better act!!! Clowns.

[SuburbanFarmer]

I love the caveat: "we can't have them just releasing it Willy-nilly"

It's fine that they record everything, but my God... what if the public heard it??

[de officiis]

Another court tells police: Want to use a stingray? Get a warrant

The District of Columbia Court of Appeals ruled that the warrantless use of a cell-site simulator violated the Constitution when a man suspected of sexual assault and robbery was located by local police.

In a 2-1 opinion . . . the DC Court of Appeals—effectively the equivalent of a state supreme court—agreed with the lower court's ruling that the use of the device, also known as a stingray, was unconstitutional. In addition, however, the judges went further: they found that the violation was so egregious that any evidence derived from the stingray should be excluded from the case, which overturned the conviction.

The case . . . joins a recent string of judgements from around the country that concluded that stingrays are a "search" under the Fourth Amendment. That means they require a warrant, barring exigent circumstances or other known exceptions.

"A person's awareness that the government can locate and track him or her using his or her cellphone likewise should not be sufficient to negate the person's otherwise legitimate expectation of privacy," the majority concluded in the Thursday ruling.

As Ars has long reported, stingrays can be used to determine a mobile phone's location by spoofing a cell tower. In some cases, stingrays can also intercept calls and text messages. Once deployed, the devices intercept data from a target phone along with information from other phones within the vicinity. At times, police have falsely claimed the use of a confidential informant when they have actually deployed these particularly sweeping and intrusive surveillance tools.
...

In July 2016, a federal judge in New York ruled along similar lines as the DC Court of Appeals in a case . . . .

"Absent a search warrant, the Government may not turn a citizen's cell phone into a tracking device," US District Judge William Pauley wrote in that case.

The battle against creepy hi-tech shenanigans by the police continues...

[de officiis]

Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad

The Supreme Court on Monday agreed to decide whether federal prosecutors can force technology companies to turn over data stored outside the United States.

... the new case will give the Supreme Court an opportunity to weigh in on the clash between the demands of law enforcement and the companies’ desire to shield the information they collect to protect their customers’ privacy.

The case, United States v. Microsoft, No. 17-2, arose from a federal drug investigation. Prosecutors sought the emails of a suspect that were stored in a Microsoft data center in Dublin. They said they were entitled to the emails because Microsoft is based in the United States.

A federal magistrate judge ... granted the government’s request to issue a warrant for the data under a 1986 federal law, the Stored Communications Act. Microsoft challenged the warrant ... arguing that prosecutors could not force it to hand over its customer’s emails stored abroad.

... the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that the warrant in the case could not be used to obtain evidence beyond the nation’s borders because the 1986 law did not apply extraterritorially. ...

...

In urging the Supreme Court to hear the case, the Justice Department said nothing should turn on Microsoft’s business decision to store data abroad that it “can access domestically with the click of a computer mouse.” The panel’s ruling, the department’s brief said, “is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.”

“Hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud — are being or will be hampered by the government’s inability to obtain electronic evidence,” the brief said.

In response, Microsoft told the justices that it is up to Congress to revise the 1986 law and noted that both houses have recently held hearings to consider overhauls.

A ruling upholding the warrant, the company warned, would embolden foreign countries to seek the emails of Americans stored in the United States.

Microsoft added that the Justice Department’s position posed a threat to technology companies by requiring them to choose between complying with a warrant and disobeying foreign laws.

Truly a can of worms. Can the Court or Congress come up with a manageable solution?

[SuburbanFarmer]

I hate this fucking thread. Ugh...

It always comes back to the "not one single" fallacy. Of course you could compel all technology companies to give you all information from all sources, but how long do you think that company would continue to exist? Why would anyone use an American service, like Google, knowing that anything typed into it would be used against them?

The fact that they're even asking for this tells me that we're doomed.