4th Amendment Thread

[de officiis]

The Drones Are Coming!

WILL THE FOURTH AMENDMENT STOP THEIR THREAT TO OUR PRIVACY?

78 Brooklyn L. Rev. 1279 (Summer 2013)

Robert Molko

INTRODUCTION

In recent years, the use of drones in military operations has become very public. But what is not as well known is that local law enforcement agencies are now using drones1 and plan to expand their use to conduct surveillance of communities for criminal activity.2 Today, in the twenty-first century, our privacy seems to have been eroded virtually to the point of nonexistence.3 We have already lost substantial privacy in our cars, our cell phones, our business records, our bodies, and even in our homes.4 And now, law enforcement’s adoption of drones threatens to further erode our right to privacy as they silently hover over our neighborhoods and monitor our every move. Will the U.S. Supreme Court and the Fourth Amendment stop this impending threat to our privacy?

Full Article: https://www.brooklaw.edu/~/media/PDF/La ... v78iv.ashx

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Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention

99 Cornell L. Rev. 327 (Jan. 2014)

by Jennifer C. Daskal

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples—terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked—subject to little more than bare rationality review and negligible procedural protections—and without any coherent theory as to their appropriate limits.

The Article examines this category of noncustodial pre crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect.

Full Article: http://cornelllawreview.org/articles/pr ... revention/

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Drones: The Power to Kill

Alberto R. Gonzales · December 2013

82 GEO. WASH. L. REV. 1 (2013)

After the terrorist attacks on September 11th, 2001, the Bush Administration began the use of unmanned armed aerial drones to pursue targets in Afghanistan and Pakistan. The Obama Administration has continued this policy, expanding it to pursue substantially more targets in Yemen and new ones in Pakistan. This Article analyzes the Obama Administration’s procedures for placing American citizens on the list of targets for drone strikes and proposes additional measures that Congress and the President can take to ensure that the procedures comply with constitutional guarantees of due process. This Article uses Supreme Court precedents on enemy combatant designations and trials as a source of due process standards. It argues for the following steps: (1) the establishment of an “enemy combatant” definition specific to drone targets; (2) a requirement that the President notify Congress of any potential U.S. citizen target and of any executed strike; (3) verification, immediately before the strike, that the American target continues to meet the definition of enemy combatant; and (4) the opportunity for an advocate of the target to challenge the classification before a neutral decisionmaker.

Full Article: http://www.gwlr.org/2014/02/03/gonzales/

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The Post-TSA Airport: A Constitution Free Zone?

Daniel S. Harawa

41 PEPP. L. REV. 1 (2013)

History reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an “emergency” or threat to the public. But the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike.

—Judge Walter R. Mansfield

The Transportation Security Administration (TSA) has come under increasing scrutiny since its creation in 2001. In the 112th Congress alone, TSA-related witnesses testified at thirty-eight congressional hearings and provided 425 briefings for members of Congress. As aptly summarized by Charlie Leocha, director of the Consumer Travel Alliance, “[t]o much of the flying public, the TSA is a boogeyman . . . . TSA has become the butt of countless jokes.” And by most accounts, Leocha is right. Criticisms of the TSA and airport security measures have been lobbed from almost every corner imaginable. The attacks have been full-throated, nonpartisan, and increasingly vitriolic. In fact, it has become commonplace to turn on the television or open the newspaper and see the TSA being lambasted in some way, shape, or form.

The stories concerning TSA misconduct have been as shocking as they have numerous. Many of the stories would be comical if they were not true. Here are some highlights. In 2008, in Lubbock, Texas, a woman was forced to remove her nipple piercings in the middle of the airport at the insistence of TSA agents. Again in 2008, a woman’s brassiere underwire set off airport metal detectors, and she was forced to remove her bra for closer inspection. New mother Elizabeth McGarry was forced to taste her own breast milk at JFK Airport to assure TSA agents that the bottles did not contain poisonous liquids. In Lansing, Michigan, TSA agents burst a bladder cancer patient’s urostomy bag during the course of a pat-down, such that the man had to board his flight covered in his own urine.

Full Article: http://pepperdinelawreview.com/post-tsa ... free-zone/

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Standing Up to Clapper: How to Increase Transparency and Oversight of FISA Surveillance

Alan Butler - Appellate Advocate Counsel, Electronic Privacy Information Center; J.D., UCLA School of Law; B.A., magna cum laude, Economics, Washington University in St. Louis.

48 New Eng. L. Rev. 55 (Fall 2013)

I. Introduction

The case was poised to challenge the extent of government surveillance of Americans' international communications under the Foreign Intelligence Surveillance Act ("FISA"). Brought by the American Civil Liberties Union on behalf of journalists, attorneys, and human rights organizations, the complaint argued that certain provisions of the FISA, authorizing programmatic surveillance of international communications, were unconstitutional. The United States didn't even bother to dispute the facts: plaintiffs' work required them to communicate confidentially with international clients, sources, and colleagues - some of whom the government believed to be associated with terrorist organizations - and their discussions, which included foreign intelligence information, were precisely the type likely to be intercepted under the FISA Amendments Act of 2008 ("FAA"). They had also incurred costs to avoid FAA surveillance.

Yet their claim would not be heard. On February 26, 2013, the U.S. Supreme Court ruled in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), that the plaintiffs lacked standing to bring their claims. The Court held that the plaintiffs did not satisfy the case-and-controversy requirement of Article III of the United States Constitution because their claims were "too speculative." 1 The opinion was a blow to those who seek increased transparency and public oversight of the U.S. Intelligence Community - transparency made ever-more necessary by the expansion of secret surveillance activities. If the Clapper plaintiffs lacked standing, it could be nearly impossible to find better-suited plaintiffs to challenge the constitutionality of National Security Agency ("NSA") surveillance activities and to pursue a litigation solution to intelligence surveillance reform. In retrospect, the Court would have done better to wait until the end of its term in June to issue the opinion.

A few months after the Court ruled in Clapper, documents published by The Guardian and The Washington Post shed new light on the scope of foreign intelligence surveillance conducted by the NSA. 2 Subsequently, the government acknowledged several programs, approved by the Foreign Intelligence Surveillance Court ("FISC") and implemented by the NSA, to collect international communications data and both domestic and international call detail records. 3 The FISC authorizations that the Court had written off as "speculative" were made public for the first time. Public attention shifted and momentum quickly grew for new FISA reforms.

In the wake of the Clapper opinion and the NSA leaks, a number of legislative proposals are being considered to reform the FISA and to improve government accountability. While a litigation solution remains possible and should be pursued, legislative reform may more fully address the need for additional oversight and transparency. Ultimately, reforms adopted should include three key components: increased public reporting, mandatory disclosure of FISC opinions, and more adversarial briefing at the FISC.

This article considers the recent proposals to increase transparency and oversight of foreign intelligence surveillance conducted by the U.S. Intelligence Community. First, the article will provide a brief overview of the FISA programs at issue. The article will then consider the Court's standing analysis in Clapper in light of recent disclosures, and discuss its impact on future judicial oversight of surveillance activities. Further, it will describe recent legislative proposals to amend the FISA, improve oversight mechanisms, and require public reporting regarding the privacy impact of FISA surveillance. Finally, the article will outline three key elements necessary to reform the current FISA system and propose additional transparency and oversight procedures necessary to bring surveillance in line with constitutional and legal principles.

Full Article: http://newenglrev.com/current-issue/but ... o-clapper/

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Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?

John D. Castiglione

59 UCLA L. Rev. Disc. 230

Introduction

In March, the Fifth Circuit Court of Appeals issued its decision in Bishop v. Arcuri,1 a case brought pursuant to 28 U.S.C. § 1983 against the City of San Antonio and certain of its police officers. What happened to the plaintiffs in Bishop is altogether familiar. One night in April 2009, the plaintiffs—two women living outside San Antonio proper—were in their home, getting ready for bed. Suddenly, without warning, a team of San Antonio police officers used a battering ram to break down the women’s front door. One of the women was in a state of undress; the other was in the backyard. Earlier that day, the officers had purportedly received a tip that methamphetamine was being sold from the prem­ises. Following a search of the home, including a search by a drug-sniffing dog, the police determined that there were no drugs in the home, or indeed any other evidence of criminality. The police made no arrests.2

The women brought claims against the officers alleging violations of the U.S. Constitution including, inter alia, violation of the Fourth Amendment, by virtue of the officers’ failure to knock and announce their presence before entering the premises.3 The two women also brought claims against the City of San Antonio, alleging that the no-knock search of their home resulted from the uncon­stitutional custom and practice of no-knock entries in connection with the execution of drug warrants.4 As alleged, the City had an unconstitutional practice of effecting forced entries without reasonable suspicion of exigent circum­stances, which is necessary for such entries under the law.5 Predictably, the defendants argued that the allegedly heightened risk of evidence destruction justified their no-knock entry of the women’s home. The defendants claimed that the officers suspected small (that is, easily destroyable) amounts of drugs were being distributed from the premises and that a heightened risk of violence existed based on the purportedly unknown character of the occupants and the layout of the house.6 While the Magistrate Judge recommended denial of summary judgment for the officers and the City, the District Court granted the defendants’ motions on all counts and dismissed the case.7

I represented the plaintiffs as pro bono counsel on appeal, and argued the matter before the Fifth Circuit.8 At oral argument, a discussion was had whether any circumstances in fact existed that night suggesting a heightened risk of injury to the officers if they had knocked and announced their presence.9 Judge Stephen A. Higginson stumped me when he asked whether any dogs were present in the home at the time. As Judge Higginson explained, the presence of a dog could, in theory, create the reasonable suspicion of a heightened risk of violence needed to justify a no-knock entry. Admittedly, it had never occurred to me that this was even potentially an issue; neither party raised the issue of pets in briefing and the opinions below did not discuss it. I told Judge Higginson that I did not know whether a dog was in the house. Judge Higginson himself noted that he was “stretching the facts” with the question; he admitted that he was trying to suss out any possible basis for the presence of exigent circumstances. On rebuttal, after my co-counsel helpfully pointed me to the right place in the record, I noted to Judge Higginson that there were indeed dogs of unknown breed in the women’s home. Satisfied, the judges and I quickly moved on.10

After the argument and a well-deserved ribbing from my colleagues, the issue stuck in my mind. Could the presence of a dog—a perfectly legal thing to keep in one’s home—really form the basis of the heightened risk of violence needed to justify a no-knock entry? If so, wouldn’t almost any circumstance that presents some scintilla of risk to an officer’s physical safety justify a no-knock entry? Perfectly legal kitchen cutlery, firecrackers, or pet snakes come to mind. And if that really is the case, hasn’t knock-and-announce jurisprudence become a mockery?

These are interesting—and only partially flip—questions. But there is a more serious issue lurking. The suspected presence of a firearm in a subject premises often forms the basis for upholding no-knock entries.11 In such circumstances, officers apply ex ante for a no-knock warrant or decide at the scene to effect a no-knock entry. Later invalidation of the forced entry (either via suppression of evidence or in a later civil suit under § 1983 or Bivens 12) is rare when officers can point to the reasonable suspicion of the presence of firearm(s) in the subject premises. Often, those firearms are known to be illegally possessed by the individual(s) believed to be in the home. Often, the officers have no idea how whether they are legally possessed.

This has become a serious and unanalyzed issue in knock-and-announce juris­pru­dence in the wake of District of Columbia v. Heller13 and McDonald v. City of Chicago.14 Those cases held that a person generally has a constitutional right to possess some kind of firearm in his or her home.15 Nevertheless, under current Fourth Amendment jurisprudence, the presence of a firearm can be a factor (poten­tially determinative) in permitting government officials to enter the premises without knocking and announcing their presence, as they are otherwise obligated to do under the Fourth Amendment.16 This Article considers this seeming conundrum, and offers initial suggestions about how courts should approach the issue.

Full Article: http://www.uclalawreview.org/?p=3716

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A LOT MORE THAN A PEN REGISTER, AND LESS THAN A WIRETAP

Stephanie Pell, Christopher Soghoian

16 Yale J.L. & Tech. 134

In June 2013, through an unauthorized disclosure to the media by ex-NSA contractor Edward Snowden, the public learned that the NSA, since 2006, had been collecting nearly all domestic phone call detail records and other telephony metadata pursuant to a controversial, classified interpretation of Section 215 of the USA PATRIOT Act. Prior to the Snowden disclosure, the existence of this intelligence program had been kept secret from the general public, though some members of Congress knew both of its existence and of the statutory interpretation the government was using to justify the bulk collection. Unfortunately, the classified nature of the Section 215 metadata program prevented them from alerting the public directly, so they were left to convey their criticisms of the program directly to certain federal agencies as part of a non-public oversight process. The efficacy of an oversight regime burdened by such strict secrecy is now the subject of justifiably intense debate. In the context of that debate, this Article examines a very different surveillance technology—one that has been used by federal, state and local law enforcement agencies for more than two decades without invoking even the muted scrutiny Congress applied to the Section 215 metadata program. During that time, this technology has steadily and significantly expanded the government’s surveillance capabilities in a manner and to a degree to date largely unnoticed and unregulated. Indeed, it has never been explicitly authorized by Congress for law enforcement use. This technology, commonly called the StingRay, the most well-known brand name of a family of surveillance devices, enables the government, directly and in real-time, to intercept communications data and detailed location information of cellular phones—data that it would otherwise be unable to obtain without the assistance of a wireless carrier. Drawing from the lessons of the StingRay, this Article argues that if statutory authorities regulating law enforcement surveillance technologies and methods are to have any hope of keeping pace with technology, some formalized mechanism must be established through which complete, reliable and timely information about new government surveillance methods and technologies can be brought to the attention of Congress.

Full Article: http://yjolt.org/sites/default/files/Mo ... iretap.pdf

[de officiis]

Stop and Frisk City

Kathy Fallon

79 Brooklyn L. Rev. 321 (Fall 2013)

INTRODUCTION

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”1 The “stop and frisk”2 policy employed by the New York City Police Department (“NYPD”)3 challenges our understanding of those constitutional rights.

. . .

This note details the history of stop and frisk and argues that the NYPD should internally amend its stop and frisk policy to better limit the discretion given to individual officers. Part I outlines a brief history of stop and frisk. Part II examines the inadequacy of the current remedies available to those who feel their Fourth Amendment rights have been violated by stop and frisk. Part III contends that the NYPD needs to update its stop and frisk policy. Finally, Part IV outlines administrative solutions the NYPD should implement in order to reduce constitutional violations of individual rights. These updates are incredibly important both for the NYPD and the citizens of New York City, who have increasingly pressured the City to change its procedures.34 Given the uproar in New York City and around the country over stop and frisk, as well as the recent decision declaring the NYPD’s stop and frisk tactics unconstitutional, the NYPD should be receptive to updating its policy.35

Full Article: http://www.brooklaw.edu/~/media/PDF/Law ... _v79i.ashx

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Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment

Hillary B. Farber

64 Syracuse Law Review 1 (2013)

Abstract:

By the end of this decade it is estimated that 30,000 drones will occupy national airspace. President Obama has set a deadline of September 2015 for the Federal Aviation Administration to promulgate new regulations for safely integrating drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. On June 19, 2013, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use.

The very essence of drone surveillance is that it is less expensive and more efficient than conventional aircraft at tracking the movements of large numbers of people without their knowledge. The capabilities of onboard instruments like high-resolution cameras, infrared devices, facial recognition systems, and other sensory enhancing technologies will make it virtually impossible to shield oneself from government watch. Fourth Amendment privacy jurisprudence has yet to grapple with drones and their unprecedented surveillance capabilities. In the short term, legislative action will likely provide more substantive protection for individual privacy interests. Although there is bipartisan concern in Congress for how unmanned aerial surveillance may erode expectations of privacy, legislators are yet to reach consensus on a regulatory approach. States have responded more quickly to privacy concerns raised by drone use. More than eighty bills and resolutions have been introduced in forty-two states. Since January 2013, eight states have enacted drone surveillance legislation.

This article is concerned with government use of unmanned aerial surveillance and the limits the Fourth Amendment and legislative action can place on this new technology. How will courts evaluate whether unmanned aerial surveillance in navigable airspace constitutes a search under the Fourth Amendment? Supreme Court jurisprudence on aerial surveillance is limited to cases dealing with manned aircraft flying at low altitudes. Is there a permissible length of time that surveillance may be used without triggering Fourth Amendment protections? Justice Alito, along with three other justices in United States v. Jones cautioned that some government surveillance does not implicate the Fourth Amendment. Who will be allowed to access the information the drones collect and how long can it be stored? In a digital age where such large quantities of data are transmitted to third parties, lawmakers are concerned about the dissemination and retention of information collected from drone surveillance. This article explores these challenging, largely unexplored questions and offers constitutional and legislative prescriptions for regulating drones.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2350421

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Case Note, Maryland District Court Finds Government’s Acquisition of Historical Cell Site Data Immune from Fourth Amendment—United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012)

Jeremy Derman

46 Suffolk U. L. Rev. 297 (2/24/13)

A criminal defendant’s motion to suppress often implicates the Fourth Amendment’s protections against “unreasonable searches and seizures.” Nevertheless, the extent to which government surveillance activities associated with wireless communication and location tracking technology fall within the ambit of the Fourth Amendment is unclear. In United States v. Graham, the United States District Court for the District of Maryland considered whether defendants’ Fourth Amendment rights were violated when the government acquired historical cell site location information (CSLI) without a search warrant. The court found that the defendants’ Fourth Amendment rights were not violated because they did not have a legitimate expectation of privacy—a requisite condition precedent to an unconstitutional search determination—in the CSLI at issue.

Full Article: http://suffolklawreview.org/wp-content/ ... DF_Web.pdf