4th Amendment Thread

[de officiis]

BECOMING AN ORWELLIAN SOCIETY: BIG BROTHER IS WATCHING YOU

GEORGEANNE A. WALLEN - 40 T. Marshall L. Rev. 65 (2014)

I. INTRODUCTION

First, the right to privacy extended all the way to the heavens 2 until planes and helicopters became an efficient means of transportation for the common good. 3 The "privacy to the heavens" became obsolete. 4 Now, we have drones. 5 They are unmanned. They do not provide transportation for the common good. They are used for police departments and governments. Society is not prepared to accept an invasion of privacy by drones, 6 nor is society prepared to accept spying drones as a reasonable search.

The use of drones has expanded dramatically in the last few decades. 7 The technology of unmanned aerial vehicles ("UAVs") has become so advanced that the U.S. Government is entertaining the idea of allowing drones to monitor the interior of the country. Drones are currently used to monitor and strike in foreign territories. The legislation on these implementations sparks many heated debates amongst party lines. 8 However, when tragedy strikes home, the line becomes blurred. 9

This article examines the constitutional implications of the unmanned aircraft industry. Part II will review the past use of UAVs in foreign territories. Part III will critically evaluate the current and proposed uses of domestic drones in today's society. Part IV will provide a detailed constitutional evaluation on the future implications of unmanned aircraft on American soil. Finally, Part V will provide a proposal restricting the use of domestic drones.

http://tmlawreview.org/assets/uploads/2 ... allen1.pdf

[de officiis]

Guilty by Association: Small-World Problem Emphasizes Critical Need for Business Strategies in Response to the Foreign Intelligence Surveillance Act

Carol M. Bast & Cynthia A. Brown - 2014 Mich. St. L. Rev. 1035 (2014)

This Article proposes that the invisible social networks created by employees and business owners may inadvertently position a business and its principals as federal-surveillance targets and the subjects of permissible surreptitious wiretapping, eavesdropping, and "sneak and peek" searches. 22 In addition to increased surveillance, business owners and businesses are more prone than ever to receive federal warrantless requests for sensitive information about employees, clients, and customers. Because the legislation does not require disclosure, the business principals who become surveillance targets may never know or learn of the government's monitoring of telephone calls and electronic data. 23 Further, should a business receive NSL requests for information, not only must the business comply, but the NSL gagging provision also forbids recipients from disclosing to anyone other than their attorney the government's demand for records. 24 Further still, an employee who becomes the recipient of an NSL request for business records may also be prohibited from revealing the government's request--even to her superiors or the business's owners. 25
...
Part I of this Article reviews Milgram's small-world experiment and the NSA study of social networks. Part II presents the FISA legislation and a synopsis of its thirty-five-year evolution. Incorporated here is a comparison of other federal legislation that governs domestic-surveillance procedures. Part III reviews the state of domestic surveillance following 9/11. Part IV considers the potential implications FISA has on American commercial enterprises and urges businesses to recognize the acute need to consider the potential for unintended consequences. Part V suggests proactive measures that businesses should consider.

http://digitalcommons.law.msu.edu/lr/vol2014/iss4/4

[de officiis]

ABCRAILING AGAINST CYBER IMPERIALISM: DISCUSSING THE ISSUES SURROUNDING THE PENDING APPEAL OF UNITED STATES V. MICROSOFT CORP.

Jason Young Green - 16 N.C. J.L. & Tech. On. 172 (4/2015)

The United States government was granted a wide berth of surveillance powers post 9/11. At a time when Americans felt vulnerable to foreign attack, the executive branch passed the USA PATRIOT Act that balanced a reduction of privacy rights with a promise of increased national security. Twelve years later, Edward Snowden released documents showing exactly how pervasive U.S. intelligence gathering had become. Now, in a post-Snowden world, Americans are struggling to balance privacy rights with national security and effective law enforcement. The recent appeal of the Microsoft Corporation, which involves a warrant for the extraterritorial information of a foreign subject, highlights this struggle and brings it into the spotlight. This Recent Development argues that such extraterritorial warrants are beyond the powers of the executive branch, and need to be tempered by judicial, if not congressional, review. Further, the United States bypassing established treaties and the privacy laws of those nations in order to obtain this information could be seen as aggression against foreign nations. This Article further explores and recommends legal reforms that better accommodate the international nature of the internet and the laws of sovereign nations.

http://ncjolt.org/wp-content/uploads/20 ... _Final.pdf

[de officiis]

Bait, Mask, and Ruse: Technology and Police Deception

Elizabeth E. Joh - 128 Harv. L. Rev. F. 246 (April 2015)

Deception and enticement have long been tools of the police, but new technologies have enabled investigative deceit to become more powerful and pervasive. Most of the attention given to today's advances in police technology tends to focus either on online government surveillance 1 or on the use of algorithms for predictive policing or threat assessment. 2 No less important but less well known, however, are the enhanced capacities of the police to bait, lure, and dissemble in order to investigate crime. What are these new deceptive capabilities, and what is their importance?

http://cdn.harvardlawreview.org/wp-cont ... 28_Joh.pdf

[de officiis]

Corporate Avatars and the Erosion of the Populist Fourth Amendment

100 Iowa L. Rev. 1441 - Avidan Y. Cover

Abstract:

The current state of Fourth Amendment jurisprudence leaves it to technology corporations to challenge court orders, subpoenas, and requests by the government for individual users’ information. The third-party doctrine denies people a reasonable expectation of privacy in data they transmit through telecommunications and Internet service providers. Third-party corporations become, by default, the people’s corporate avatars. Corporate avatars, however, do a poor job of representing individuals’ interests. Moreover, vesting the Fourth Amendment’s government-oversight functions in corporations fails to cohere with the Bill of Rights’ populist history and the Framers’ distrust of corporations.

This article examines how the third-party doctrine proves unsupportable in the big data surveillance era, in which communicating and sharing information through third parties’ technology is a necessary condition of existence, and non-content data, such as Internet subscriber information or cell site location information, provides an intimate portrait of a person’s activities and beliefs. Recognizing the potential for excessive government surveillance, scholars, courts, and Congress have endorsed corporations as one solution to executive branch overreach and privacy invasion.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2523647

[de officiis]

Armed Drones for Law Enforcement: Why It Might Be Time to Re-Examine the Current Use of Force Standard

Eric Brumfield - 46 McGeorge L. Rev. 543 (2014)

... This Comment argues that allowing domestic LEAs to operate armed drones in order to protect the public is constitutional, but will likely require agencies to create a separate armed drone UOF [use of force] policy to address material differences in how an officer uses armed force with a drone and to provide guidance for officers in the field.

Part II of this Comment examines the evolution of drone technology from its use in the military to current and potential uses in the United States, with a focus on LEAs [law enforcement agencies]. Part III considers the legal basis for a LEA's ability to use and operate drones in national airspace. Additionally, this section discusses pertinent parts of the FAA Act dealing with public agency drone use, current drone rules implemented as a result of the FAA Act, and federal and state responses to the FAA Act [FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 331-36, 126 Stat. 11, 72-77]. Part IV addresses public policy issues concerning the use of armed drones in the United States. Part V discusses the Fourth Amendment and the UOF, including an explanation of unreasonable seizures and the appropriate UOF standard, the application of that standard to armed drones, and a discussion of whether armed drones require a new UOF standard. Part VI offers a comparison of current state and federal UOF policies and provides a model armed drone UOF policy in order to allow an officer to use an armed drone and stay within established Fourth Amendment principles. Part VII concludes that domestic armed drone use by an officer is constitutional but requires either a separate armed drone UOF policy or modification of the U.S. Supreme Court's reasonableness test in order to protect the public from excessive force.

http://www.mcgeorge.edu/Documents/Publi ... Issue3.pdf

[de officiis]

4th Amendment is violated by law that says hotels must show guest registries to cops, says SCOTUS

Debra Weiss - ABA Journal - 6/22/15

The U.S. Supreme Court has struck down a Los Angeles law requiring hotel operators to make guest registries available to police.

The court ruled 5-4 that the law violates the Fourth Amendment’s ban on unreasonable searches and seizures. Justice Sonia Sotomayor wrote the majority opinion (PDF), joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan.

...

... the majority found the law violates the Fourth Amendment because it doesn’t give hotel operators the opportunity for precompliance review before they are penalized. “We hold only that a hotel owner must be afforded an opportunity to have a neutral decision-maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply,” Sotomayor wrote.

http://www.abajournal.com/news/article/ ... =most_read

Opinion: http://www.supremecourt.gov/opinions/14 ... 5_2qe4.pdf

[de officiis]

DOJ says using Stingrays to intercept cellphone calls requires warrant, unless exception applies

9/4/15 - ABA Journal

New U.S. Department of Justice guidelines announced Thursday say warants are needed to use Stingrays and other cell-site simulators to intercept cellphone data and place limits on the information that can be collected.

However, the guidelines also say that the warrant requirement doesn’t apply under “exigent circumstances” and “exceptional circumstances,” CNN reports.

The American Civil Liberties Union estimates that the technology, which obtains cellphone location information by imitating a cellphone tower, is being used in at least 21 states and the District of Columbia.

The new policy, which is the first of its kind, applies to federal law enforcement agencies, the Associated Press reports. It will not apply to state and local law enforcement, unless they are working in conjunction with federal agencies.

http://www.abajournal.com/news/article/ ... alls_unles

High time they started reigning in some of this stuff...

[de officiis]

American Surveillance of Non-U.S. Persons: Why New Privacy Protections Offer Only Cosmetic Change

Daniel Severson - 56 Harv. Int'l L.J. 465 (Summer 2015)

This Note explores why, as a matter of law and policy, the U.S. government has not extended more privacy protections to foreigners subject to signals intelligence activities conducted outside the United States. Edward Snowden's unauthorized disclosures generated significant international pressure on the United States to reform its surveillance practices, including extending more privacy protections to foreigners. The U.S. government responded by increasing transparency and offering policy reforms. However, most of the changes relating to non-U.S. persons are cosmetic; they largely formalize current practices and incentives, making real changes only at the margins. Several possible reasons explain the U.S. government's approach: the cost of surveillance on the U.S. economy may be exaggerated; the diplomatic costs have already declined; the argument that U.S. government surveillance violates international human rights law is tenuous; and alternative policies are not clearly superior to the status quo. Therefore, while affording non-U.S. persons fewer protections may entail some costs, those costs are uncertain or declining, and national security interests as well as political and pragmatic considerations create powerful incentives to maintain the status quo. Signals collection for foreign intelligence purposes provides not just information to detect and thwart international terrorism and espionage, but also information valuable for the conduct of foreign affairs. It appears that in order to facilitate these goals, the U.S. government decided to maintain the distinction between U.S. persons and non-U.S. persons and their different levels of privacy protection.

http://www.harvardilj.org/wp-content/up ... verson.pdf

[de officiis]

Third Circuit to the City of New York: Being Muslim is not Reasonable Suspicion for Surveillance

10/15/15 - Nadia Kayyali - eff.org

Being Muslim can’t be the basis for law enforcement surveillance. That was the message from the Third Circuit on Tuesday when it told the plaintiffs in Hassan v. The City of New York that their lawsuit could go forward. The plaintiffs are suing over the New York Police Department’s suspicionless mass surveillance operation revealed by the Associated Press in 2011.

The NYPD targeted the plaintiffs, who include student groups, imams, business owners, and individuals, based solely on religion. The court’s decision affirms what should be an obvious principle: being Muslim (or from a country with a lot of Muslims) is not reasonable suspicion. But it did more than that. It gave the City a history lesson that bears repeating:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind.

https://www.eff.org/deeplinks/2015/10/t ... rveillance