4th Amendment Thread

[de officiis]

Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion

Elizabeth E. Joh

Arizona Law Review, Vol. 55, No. 4, (2013)

The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy "burners" (prepaid phones) or "freedom phones" from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use Tor to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some "live off the grid" and cut off all contact with the modern world.

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This Article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

Full Article: https://papers.ssrn.com/sol3/papers.cfm ... id=2285095

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Bulk Metadata Collection: Statutory and Constitutional Considerations

Laura Donohue

37 Harv. J.L. & Pub. Pol'y 757 (Summer 2014)

Abstract:

Part I of this article begins by pointing out that the reason Congress introduced FISA was to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. national security, while preventing the NSA and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies.

Congress circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, insisted that such claims be supported by probable cause, and heightened the protections afforded to the domestic collection of U.S. citizens’ information. Initially focused on electronic surveillance, FISA expanded over time to incorporate physical searches, pen registers and trap and trace, and business records and tangible goods.

The NSA program reflects neither the particularization required by Congress prior to acquisition of information, nor the role anticipated by Congress for the Foreign Intelligence Surveillance Court and Court of Review.

The bulk collection program, moreover, as pointed out in Part II of this Article, violates the statutory language in three important ways: (a) it fails to satisfy the requirement that the records sought “are relevant to an authorized investigation”; (b) it fails to satisfy the statutory provision that requires that information sought could be obtained via subpoena duces tecum; and (c) it bypasses the statutory framing for pen registers and trap and trace devices.

Part III of this Article suggests that the bulk collection of U.S. citizens’ metadata also gives rise to serious constitutional concerns.

Further examining the Supreme Court’s jurisprudence, Part III goes on to note that over the past decade, tension has emerged between considering new technologies from the perspective of trespass doctrine or from the application of Katz’s reasonable expectation of privacy test. Cases involving, for instance, GPS chips, thermal scanners, and highly-trained dogs, divide along these lines. Regardless of which approach one adopts, however, similar results mark the application of these doctrines to the telephony metadata program.

Under trespass doctrine, the primary order for the program amounts to a general warrant — the elimination of which was the aim of the Fourth Amendment. In light of social norms, it is also a digital trespass on individuals’ private spheres.

Under Katz, in turn, Americans do not expect that their telephony metadata will be collected and analyzed. Indeed, most Americans do not even realize what can be learned from such data, making invalid any claim that they reasonably expect the government to have access to such information. The courts also have begun to recognize, in a variety of contexts, the greater incursions into privacy represented by new technologies.

A variant of the government’s argument suggests that the mere acquisition of data, absent human intervention, means that it is not a search. There are multiple problems with this approach, not least of which are that the Supreme Court has never carved out an automation exception; that privacy interests are determined from the perspective of the individual, not the government; and that the decision to collect the information is replete with human interaction. Citations to the usefulness of such information fail to extract the program from a Constitutional abyss.

Part IV concludes this Article by calling for an end to the telephony metadata program and the implementation of FISA reform to enable the government to take advantage of new technologies, to empower the intelligence agencies to respond to national security threats, and to bring surveillance operations within the bounds of U.S. law. Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs”, and requiring the government to demonstrate past effectiveness prior to renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2344774

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The Legality of the National Security Agency's Bulk Data Surveillance Programs

John Yoo

37 Harv. J.L. & Pub. Pol'y 901 (Summer 2014)

Abstract:

Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2369192

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Modern Private Data Collection and National Security Agency Surveillance:
A Comprehensive Package of Solutions Addressing Domestic Surveillance Concerns

Shaina Kalanges

34 N. Ill. U. L. Rev. 333 (Spring 2014)

I. INTRODUCTION

Section 702 of the Foreign Intelligence Surveillance Act (FISA) mandates warrantless electronic surveillance of suspected foreign communications by the National Security Agency (NSA). 2 Section 215 of the 2001 USA Patriot Act, 3 an amendment to FISA, also allows for a sweeping collection of domestic and foreign business records from private phone companies, to be queried with a deferential showing of the information's relevance to foreign intelligence. 4 The NSA may accordingly subpoena and buy data stored by private companies to conduct mechanical searches to find foreign intelligence. 5 Meanwhile, companies like Facebook and Google sell analyzed information on individuals to advertisement companies, while research empires create massive data collection and analysis systems targeting consumers. 6 Like these social networking websites and search engines, a private corporation, Apple, is gathering personal information from Siri requests and storing it in Apple's "data farm." 7 Siri requests and information are stored for two years while the NSA's telephony metadata surveillance program 8 stores business communication records for up to five years. 9 Also, Apple did not openly inform customers of the collection and storing of their personal information, just like the NSA did not inform United States citizens that their communications may be swept. 10 The Apple iPhone licensing agreement asserts that Siri requests "will be recorded and sent to Apple in order to convert what you say into text." 11 But the agreement fails to specify how long the data will be stored and what other information Siri is storing, including addresses and other personal data. 12 The NSA PRISM 13 program, created pursuant to section 702, has a direct connection to not only information stored by Apple, but also Google, Facebook, and other companies engaging in data collection, storage, and communication facilitation. 14 While the targeted information collected through PRISM and telephony metadata collection is foreign intelligence, 15 intelligence officials argue that surveillance programs naturally cannot find foreign targets without initially looking through both foreign and domestic data. 16 Consequently, domestic privacy concerns about personal information storage and use by private companies as well as the NSA deserve closer scrutiny.

President Barack Obama announced reforms on NSA surveillance practices, including those of section 702 and section 215, on January 17, 2014. 17 Additionally, a series of nearly thirty legislative proposals in 2013 aimed to overturn the 2008 FISA Amendments Act (FAA), 18 or otherwise modify FISA, while keeping most surveillance powers intact and improving NSA data collection practices. 19 The Privacy and Civil Liberties Oversight Board (PCLOB), created by executive order back in 2004 to oversee NSA surveillance with civil liberties in mind, also kick started investigations on section 215 Patriot Act and section 702 FISA surveillance following unfavorable media reports on the NSA. 20 The American Civil Liberties Union (ACLU), with some success, vigorously advocates for exposure of NSA practices that impinge on Fourth Amendment rights by unreasonably searching and seizing domestic data. 21 Finally, the Federal Trade Commission (FTC) is implementing a series of reforms to give consumers more control over and information about mass data collection of personal information. 22

These actions appear to provide a promising foundation for securing the electronic privacy rights of United States citizens. Yet President Obama proposed legislation, and a handful of court opinions uphold much of the current NSA surveillance practices, projecting that the program will continue relatively unchanged. 23 With the expansion or continuation of phone records surveillance, there is also potential for collection of virtually every Siri request made by anyone since Apple began storing these requests. 24 If practices of collecting targeted communications continue as they did prior to 2014, the system would go something like this: the Siri requests of one user may be collected, then the requests of any other users who contacted the first Siri user within five years would be collected, then any Siri user requests of any users who possibly contacted all of those users could be collected. 25 President Obama's January 2014 reform of the section 215 program only eliminates the last step of this analysis, the collection of the third set of contacts who possibly contacted all of the users in the first two categories. 26 Additionally, President Obama hopes to keep records in the hands of a private entity and directed Congress to investigate how this may be done. 27 So Apple's storage of Siri information already mirrors this future goal. Inevitably, domestic communications and information of all types are subject to the perpetual growth of intrusive surveillance if policy reform continues to ignore the future implications of increased technology and big data collection. 28

Accordingly, to address the concerns introduced above in Part I, this Comment will analyze policy reform in NSA section 702 and section 215 FISA surveillance practices throughout and conclude by highlighting the best methods for gaining some control over surveillance practices in the past, present, and future. In Part II, this Comment will provide background on the history of NSA surveillance, developing case law, and competing legislative proposals addressing policy concerns. Part III will explain how surveillance works by using the big data collection methods developed by private companies to gather and search through information. Part IV introduces the Federal Trade Commission (FTC) and discusses how the FTC proposes to deal with big data collection in the private realm. Part V will reconcile the structure of NSA surveillance practices with the aforementioned legislative proposals and emerging FTC proposals pertaining to private companies. Additionally, Part V will group each analysis of the most adequate NSA surveillance legislation, forward-thinking policy, FTC proposals, and judicial decisions with executive reforms to create a comprehensive package of suggestions for remedying past and future surveillance concerns. Finally, Part VI will conclude by highlighting the best suggestions for the legislature, judiciary, and executive to preserve domestic privacy in an era of big data collection.

Full Article: http://www.niu.edu/law/organizations/la ... AL%206.pdf

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Why They Can Watch You: Assessing the Constitutionality of Warrantless Unmanned Aerial Surveillance by Law Enforcement

Brandon Nagy

29 Berkeley Tech. L.J. 135 (Spring, 2014)

I. INTRODUCTION

"In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows." 1 Seventy years after penning these words, George Orwell's classic cautionary tale remains relevant. Today, the federal government and law enforcement agencies nationwide operate unmanned aircraft systems ("UASs") for, among other things, aerial surveillance similar to that which Orwell described. To paraphrase Justice Alito, dramatic technological changes have created a time in which popular expectations of privacy are in flux and may ultimately produce significant changes in popular attitudes. 2 These new UAS technologies promise to increase security and convenience at the cost of privacy, but many people find trading privacy for security worthwhile. 3 Other people, however, believe that warrantless law enforcement UAS surveillance violates their privacy and should be unconstitutional under the Fourth Amendment. The U.S. Supreme Court has not ruled on an aerial surveillance case since 1986, let alone a UAS surveillance case. Instead, a patchwork of other Fourth Amendment precedent and Federal Aviation Administration ("FAA") regulations leave the public and law enforcement guessing about the extent of Fourth Amendment privacy protections from warrantless UAS surveillance. Despite the lack of clear constitutional guidance, both public and law enforcement UAS use continues to grow.

This Note begins by providing background information on the character and capabilities of UASs, as well as describing their current implementation throughout the United States. Next, it describes the current Fourth Amendment privacy framework and current FAA regulations as they affect UAS surveillance to construct an analytical framework. Last, this Note concludes that although UAS surveillance will likely be found constitutional, three potential arguments challenging the constitutionality of UAS surveillance may persuade the Supreme Court otherwise: (1) establishing the victim was in a constitutionally protected zone, (2) attacking the lawfulness of the vantage point from which the UAS surveilled, and (3) attacking the specific UAS technology used.

Full Article: http://btlj.org/data/articles/29_1/0135 ... 14+WEB.pdf

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The Times They Are a-Changin': Shifting Norms and Employee Privacy in the Technological Era

Lisa M. Durham Taylor

15 Minn. J. L. Sci. & Tech. 949 (Spring 2014)

ABSTRACT

When it comes to employee privacy rights in emerging technologies, the times they are a-changin'. In the dawn of the modern technological era, when electronic mail and the Internet were in their relative infancy, the right to privacy meant almost nothing in the workplace. Employers could promise that e-mail would not be monitored, but then proceed to do so anyway. When employees sued, seeking vindication of their perceived privacy rights, courts cast aside any notion that an employee could expect privacy in the workplace, and they did so almost uniformly. The tide, however, appears to be turning. Judicial decisions rendered in more recent years, coupled with comparable statutory reform initiatives, suggest that as social norms shift in light of the rapid development and mainstreaming of modern technologies, the law is affording protection to employees that previously did not exist. This Article takes a retrospective-comparative approach to this turning tide, delving deeply into the law of the early era of modern technology and juxtaposing it against more recent developments. The result is exposition of an unmistakable trend favoring employee rights. This Article therefore tackles head-on the ultra-modern legal problem of workplace privacy rights in emerging technologies, but it does so in novel ways, as the first to suggest that the trend is shifting toward greater recognition of employee rights at the expense of employer prerogative.

Full Article: http://conservancy.umn.edu/handle/11299/163830

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BRINGING THE GAVEL DOWN ON STOPS AND FRISKS: THE EQUITABLE REGULATION OF POLICE POWER

William A. Margeson

51 Am. Crim. L. Rev. 739 (Summer 2014)

On August 12, 2013, Judge Shira Scheindlin of the United States District Court for the Southern District of New York handed down a pair of rulings holding New York City liable for violating the Fourth and Fourteenth Amendment rights of black and Hispanic citizens 2 and ordering an extraordinary panoply of injunctive remedies to compel the New York Police Department ("NYPD") to conform its conduct of stops and frisks to the requirements of the Constitution. 3

Just over two months later, the Second Circuit rebuked Judge Scheindlin for her rulings in that case, Floyd v. City of New York. 4 While the Second Circuit's order did not expressly examine the merits of the liability holding, the order stayed the injunctive relief, and--in the coup de grace--decreed Judge Scheindlin removed from the case "in the interest, and appearance, of fair and impartial administration of justice."
...
Part I of this Note will provide background and context for understanding the question of the limits of preemptive policing at issue in Floyd. Part II will examine how the Floyd plaintiffs cleared a series of formidable procedural hurdles to acquire the information necessary to render a compelling argument to the court that the NYPD had a policy of violating the Fourth Amendment rights of black and Hispanic New Yorkers. Part III will explore the Floyd court's Fourteenth Amendment holding that the racial disparities in the raw data were actually the result of intentional discrimination by the NYPD. Part IV will analyze the unique qualifications of the 23(b)(2) class action lawsuit as a device for pursuing social reform through litigation. Part V will explore the regulatory scheme promulgated by the Floyd court and examine whether and how it might reduce the unconstitutional use of stop and frisk tactics. Because it is inextricable from a consideration of the probable effect of the Floyd court's ruling and profoundly relevant to the theoretical justification for the use of the class action lawsuit as a mechanism for social justice, Parts IV and V will focus on the interplay of the judiciary and civil society in litigation that facilitates constitutional argument to achieve sociological objectives.

Full Article: http://www.americancriminallawreview.co ... rgeson.pdf

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WAR IN THE DIGITAL AGE: The System of Domestic Counterterrorism Law Enforcement

Steven R. Morrison

25 Stan. L. & Pol'y Rev. 341 (2014)

Edward Snowden's recent leaks of the NSA's telephony metadata collection program and the Internet surveillance programs PRISM and XKeyscore are only the latest iterations of the "big data" phenomenon. Arriving just in time for 9/11, new technologies have enabled government agencies to collect and aggregate massive amounts of information, usable in counterterrorism and domestic law enforcement alike. While such moves have probably stopped some terrorist plots, they also entail systemic inefficiencies that lead unavoidably to unjust results, in the form of both false positives and false negatives. This Article explains these inefficiencies by describing a complex positive feedback loop inherent in domestic counterterrorism law enforcement.

Full Article: http://journals.law.stanford.edu/stanfo ... nforcement

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TAKING TERABYTES OUT OF THE CONSTITUTION: CAN WE FIGHT TERRORISM WITHOUT BIG BROTHER?

David F. Kelley, Esq.

40 Ver. B. J. & L. Dig. 16 (Spring 2014)

Last year my wife and I hosted an exchange student from Pakistan. He came to the U.S. under the auspices of the State Department's Kennedy Lugar Youth Exchange. We continue to be friends on Face-book, to Skype, and to exchange emails. We wanted to help improve relations with Pakistan. By communicating with this student and his family and friends, without ever knowing it, we gave the National Security Agency (NSA) carte blanche to delve into every corner of our lives.

Our right to be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures" is the product of a struggle that is primordial. One Vermont judge described it this way: "The history of western civilization reveals an ancient and profound respect for the dwelling of an individual. It also illustrates the antiquity and importance of the requirement that the authorities must have cause to invade such dwellings and may do so only with specific and particularized authority."

Full Article: http://www.joomag.com/magazine/vermont- ... 1399313232

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OSU publishes a journal, "I/S: A Journal of Law and Policy for the Information Society." Their Summer 2014 volume is now available on-line and all of the articles have NSA surveillance as their focus:

Foreword: The NSA and the Legal Regime for Foreign Intelligence Surveillance, Peter M. Shane

The Legality of the National Security Agency’s Bulk Data Surveillance Programs, John Yoo

Membership Lists, Metadata, and Freedom of Association’s Specificity Requirement, Katherine J. Strandburg

National Insecurity: The Impacts of Illegal Disclosures of Classified Information, Mark D. Young

Secret without Reason and Costly without Accomplishment: Questioning the National Security Agency’s Metadata Program, John Mueller & Mark G. Stewart

NSA Surveillance: The Implications for Civil Liberties, Shayana Kadidal

The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe, Bryce Clayton Newell

Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy, Nathan Alexander Sales

Standing and Secret Surveillance, Stephen I. Vladeck

Making No Secrets About It, Reed E. Hundt

FISA Reform, Laura K. Donohue

A Cyber Age Privacy Doctrine: A Liberal Communitarian Approach, Amitai Etzioni

The articles can be accessed here.