4th Amendment Thread

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Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem

Adam M. Gershowitz

22 Wm. & Mary Bill Rts. J. 601 (2013)

When police conduct a lawful custodial arrest, can they search the cell phone in your pocket? Numerous courts have reached conflicting conclusions on this question. This Article argues that police should only be permitted to seize cell phones incident to arrest. If the police are concerned about data being remotely wiped from the phone while they wait for a search warrant, the officers should preserve the data by using either a data extraction device to copy the phone’s contents, an inexpensive bag called a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of aluminum foil to immobilize the phone.

Full Article: http://scholarship.law.wm.edu/wmborj/vol22/iss2/15

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Deadly Drones, Due Process, and the Fourth Amendment

William Funk

22 Wm. & Mary Bill Rts. J. 311 (2013)

On September 30, 2011, allegedly on the orders of President Barack Obama, an American drone fired a missile at a truck in the desert of Yemen, killing Anwar al-Awlaki and Samir Khan, two American citizens, as well as other al-Qaeda leaders, including Ibrahim al-Asiri, a top al-Qaeda bomb maker. Awlaki and Khan had been notorious propagandists on behalf of al-Qaeda, credited with drawing numerous recruits to jihad against the United States. Subsequently, the American Civil Liberties Union and The New York Times sought to obtain a copy of any legal opinion justifying that drone strike, but, not surprisingly, their request was denied and their Freedom of Information Act suits have not yet been successful.1 Nevertheless, on February 4, 2013, NBC News posted a leaked Department of Justice “White Paper”2 on the legality of drone targeting of U.S. citizens, and President Obama authorized members of the congressional intelligence committees to have access to the Office of Legal Counsel opinion justifying the use of drones to target and kill U.S. citizens who are senior operational leaders of al-Qaeda.3 That opinion remains classified at this time and unavailable to the public. On May 23, 2013, the President addressed an audience at the National Defense University4 where he described the administration’s counterterrorism policies, including its policies regarding the use of drones for targeted strikes against al-Qaeda leaders even if they are American citizens. Nevertheless, his speech did not address the legal justification for such strikes other than to say that the targeting of American citizens for death must comply with due process.5 Consequently, as of this writing, the White Paper is currently the best statement of the administration’s legal case for drone strikes against U.S. citizens.

The White Paper raises a number of legal issues. Among these are whether the President has the authority to order such killings; whether various criminal statutes or the Executive Order banning assassination would prohibit such operations; and whether the operations would violate international law. This Article, however, will only address the questions: whether, and if so how, the Fourth Amendment6 and the Due Process Clause of the Fifth Amendment7 would constrain these operations.

The Article will begin by describing the operations in question and the procedures the administration has put in place to authorize them and relate the arguments contained in the White Paper regarding the requirements of due process and the Fourth Amendment. The Article will then critically assess those arguments and raise some additional ones. Ultimately, the Article concludes that whether or not due process and the Fourth Amendment require any changes to the procedures, the constitutionality of any drone strikes targeted against U.S. citizens would be better assured if the administration instituted additional procedures designed to assure the reliability of the information upon which it acts. Moreover, the institution of such recommended procedures should not impede the effectiveness of the drone program, much less require its termination.

Full Article: http://scholarship.law.wm.edu/wmborj/vol22/iss2/5

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Administration White Paper: Bulk Collection of Telephony Metadata

127 Harv. L. Rev. 1871 (April 2014)

White Paper Argues Metadata Collection Is Legal Under the USA PATRIOT Act.

On June 5, 2013, the Guardian reported that the National Security Agency (NSA) has been collecting "the communication records of millions of US citizens ... indiscriminately and in bulk." 1 The NSA collects "unique identifiers, and the time and duration of all calls." 2 This revelation about the telephony metadata program was met with outrage by many. 3 Recently, the Obama Administration responded to this outrage by releasing a White Paper outlining the legal justifications for the program. 4 The White Paper argues that the program is legal under section 215 of the USA PATRIOT Act 5 (Patriot Act) because repositories of Americans' phone records are "relevant" to discrete authorized investigations under this provision. However, despite the Administration's claim that relevance is construed broadly in other civil and criminal contexts, the cases the White Paper cites are distinguishable because they involved much more narrowly focused data collection than the NSA's program does. Furthermore, the White Paper's argument that Congress intended to give section 215's relevance standard a broader meaning than similar standards in other contexts lacks textual support. Since Congress was not fully informed of the program when it renewed section 215, the White Paper's argument that Congress acquiesced to the program stretches implied ratification doctrine. While President Obama recently suggested that the government might start having third parties hold the data, 6 section 215's relevance standard could still be violated by the government's compelled collection of this data. As a result, the government should either alter the program to conform with section 215 or Congress should change section 215's language to authorize broader data collection.

Full Article: http://harvardlawreview.org/2014/04/adm ... -metadata/

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Give Me Your Password Because Congress Can Say So: An Analysis of Fifth Amendment Protection Afforded Individuals Regarding Compelled Production of Encrypted Data and Possible Solutions to the Problem of Getting Data from Someone's Mind

Michael Wachtel

14 PGH. J. Tech. L. & Pol'y 44 (Fall 2013)

INTRODUCTION

In the summer of 2009, Federal Bureau of Investigation (FBI) agents compelled Google Inc. to disclose a wealth of incriminating documents from a suspect's Google Docs account. 1 The suspects, "Levi Beers and Chris de Diego, [were] the alleged operators of a firm called Pulse Marketing." 2 They were suspected of launching a deceptive email marketing campaign, "spamming" millions of users with information regarding a diet supplement. 3 The suspects were shocked to find out that their documents were not secured or protected, because they thought Google, the company providing electronic document storage services, had a duty to maintain its customers' privacy. 4 The FBI was not only able to compel Google to release information; it did so without having to show probable cause. 5 Instead the FBI needed to establish the lower "reasonable ground" standard to obtain the information. 6 The government is able to obtain documents from a third-party storage, or email provider, under the 1986 Stored Communications Act (SCA). 7 The SCA enables the government to access a customer's data whenever there are "reasonable grounds" to believe that the information would be relevant in a criminal investigation. 8 In addition to Google, other third-party storage providers have admitted that government compulsion of a customer's data would be possible even if the data is encrypted by the third-party provider. 9 A spokesperson for Dropbox Inc., a corporation that provides the extremely popular online storage system, explained that "like most online services, we have a small number of employees who must be able to access user data for the reasons stated in our privacy policy (e.g., when legally required to do so)." 10 Thus, companies like Google and Dropbox Inc. will not protect their customers' files against government intrusion. 11 However, what about individuals who encrypt and store their files in personal storage systems, such as a computer?

Today, personal computers are in many respects akin to a safe: they are used to protect documents and files that the owner wishes to remain private. Why else would a person utilize password based encryption tools on their computer if they were not trying to keep it private? Although the Fourth Amendment ensures that citizens are protected against unlawful searches and seizures, it also permits the government to seize a person's computer if they have "probable cause" to do so. 12 In light of this, an interesting issue arises when the hard drive of a lawfully seized computer is protected by software or an operating system, which cannot be cracked by the respective law enforcement's forensic unit. This issue was addressed in In re Grand Jury Subpoena Tecum Dated March 25, 2011 (United States v. Doe) (Doe IV), where the forensic detective was unable to decrypt a suspect's seized laptop. 13 The Court of Appeals for the Eleventh Circuit declared that compelling the defendant to relinquish his password in order for the state to decrypt his files was unconstitutional, and violated his Fifth Amendment right against selfincrimination. 14

This Note addresses how courts currently view the government's attempted compulsion of a defendant's password and encryption keys, and whether the government's use of this information to decrypt the defendant's device triggers the defendant's Fifth Amendment right against self-incrimination. Additionally, this Note analyzes the suggested solutions for how to deal with password-encrypted data in a trial setting, and recommends a legislative solution. Part I provides background information regarding encryption technology, and how the technology creates an evidence collection problem for the state's case in chief. Part II addresses whether password compulsion is violative of the Fifth Amendment under stare decisis, and how the forgone conclusion doctrine relates to evidence that might be protected by a defendant's Fifth Amendment privilege. Part III analyzes the pros and cons of current and suggested ways of overcoming Fifth Amendment protection that were granted based on the privilege clause against self-incrimination. Finally, this Note addresses the following issue: whether legislation dealing with the encryption problem would pass constitutional muster and, if so, whether it could offer a viable solution to the Fifth Amendment privilege against self-incrimination that passwords create.

Full Article:http://tlp.law.pitt.edu/ojs/index.php/t ... e/view/132

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Court: release legal memo on drone killing

Josh Gerstein - Politico - 4/21/14

A federal appeals court has ordered the U.S. government to release a redacted copy of a Justice Department memo discussing the legal basis for using deadly drone strikes to kill an American citizen overseas.

Ruling on Freedom of Information Act lawsuits brought by The New York Times and the American Civil Liberties Union, the U.S. Court of Appeals for the 2nd Circuit held that [the] legal analysis in the memo could no longer be withheld in light of public statements senior Obama Administration officials made about the legal basis for such strikes and the official release of a Justice Department "white paper" after it was leaked to a reporter.

"After senior Government officials have assured the public that targeted killings are 'lawful' and that [Office of Legal Counsel] advice 'establishes the legal boundaries within which we can operate,' and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred," Judge Jon Newman wrote in a 52-page opinion posted here and joined by Judges Jose Cabranes and Rosemary Pooler.

"Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper," Newman wrote.

The appeals court discounted the government's suggestion that releasing the memo would make agencies reluctant to consult the Justice Department to seek legal advice.

"Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients," he wrote. He also pointed to a 2005 case in which the 2nd Circuit ruled that the government could lose the right to keep legal advice secret when officials publicly invoke that advice to bless agency actions.

In Monday's ruling, the judges also specifically rejected government arguments for continued refusal to disclose the name of the U.S. government agency that worked with the Defense Department to target alleged Al Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki in 2011, as well as the fact that he was killed in Yemen.

The Justice Department could ask the full bench of the 2nd Circuit to rehear the case or file a petition with the Supreme Court. A DOJ spokesman did not respond immediately to a request for comment Monday.

However, officials have known for some time the contents of the appeals court's ruling. A footnote at the end of the opinion says it was shown to the government privately to make sure no classified information was contained in the decision. Some portions of the opinion were deleted. In addition, the court said that portions of the DOJ memo discussing operational details of the planned strikes could be withheld.

The 2nd Circuit ruling overturns the ruling a district court judge in New York issued last year and is at odds with a decision another district court judge issued earlier this month in a separate case in California. Newman said the latter decision did not take account of the fact that the DOJ "white paper" was officially disclosed after the leak to Michael Isikoff, then of NBC News.

Article Link: http://www.politico.com/blogs/under-the ... html?hp=l4

Opinion Link: http://images.politico.com/global/2014/ ... a2opn.html

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Low-level federal judges balking at law enforcement requests for electronic evidence

Ann E. Marimow and Craig Timberg - April 24 - Washington Post

Excerpt of article:

Judges at the lowest levels of the federal judiciary are balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights.

This rising assertiveness by magistrate judges — the worker bees of the federal court system — has produced rulings that elate civil libertarians and frustrate investigators, forcing them to meet or challenge tighter rules for collecting electronic evidence.

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

The Justice Department declined to comment for this article, although it said in an appeal to a Facciola ruling this week that his position was “unreasonable,” out of step with other judges and would slow searches of the e-mails of criminal suspects “to a snail’s pace.”

Facciola, 68, a former state and federal prosecutor known as “Fatch” around the limestone E. Barrett Prettyman Federal Courthouse a block from the Mall, remains an outlier among the 500-plus federal magistrates nationwide, say legal experts.

Yet he is part of a small but growing faction, including judges in Texas, Kansas, New York and Pennsylvania, who have penned decisions seeking to check the reach of federal law enforcement power in the digital world. Although some rulings were overturned, they have shaped when and how investigators can seize information detailing the locations, communications and online histories of Americans.

“There’s a newfound liberation to scrutinize more carefully,” said Albert Gidari Jr., a partner at Perkins Coie who represents technology and telecommunications companies. “They also don’t want to be the ones who approve an order that later becomes public and embarrassing. . . . Nobody likes to be characterized as a rubber stamp.”

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The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program

Casey J. McGowan

82 Fordham L. Rev. 2399 (April 2014)

In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program.

The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity. Critics of the program, however, assert that billions of records cannot possibly be relevant when a negligible portion of those records are actually linked to terrorist activity. This Note examines the conflicting interpretations of “relevant,” and concludes that while the current state of the law permits bulk data collection, the power of the NSA to collect records on such a large scale must be reined in.

Full Article: http://fordhamlawreview.org/assets/pdfs ... _April.pdf

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The Forgotten Right to Be Secure

Luke M. Milligan

65 Hastings L.J. 713 (2014)

Surveillance methods in the United States operate under the general principle that “use precedes regulation. ” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be fully realized. In the period between “initial use” and “regulation, ” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor and municipality) and the exclusionary rule’s good faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigation). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective.

This Article introduces an alternative method to control the costs of regulatory delay: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure, ” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government “adoption” of an investigative method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation, which, in turn, helps curb the rising costs of regulatory delay.

Full Article: http://www.hastingslawjournal.org/wp-co ... n-65.3.pdf

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Law Matters, Even to the Executive

Julian Davis Mortenson

112 Mich. L. Rev. 1015 (April 2014)

Power and Constraint: The Accountable Presidency After 9/11. By Jack Goldsmith. New York: W.W. Norton & Co. 2012. Pp. xvi, 252. $26.95.

The Executive Unbound: After the Madisonian Republic. By Eric A. Posner and Adrian Vermeule. New York: Oxford University Press. 2011. Pp. 210. $29.95.

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the executive at their broadest, and contempt for idealism at its most self-satisfied.

Two recent books on executive power prompt this return to such well-trodden ground. In The Executive Unbound: After the Madisonian Republic, Eric Posner 1 and Adrian Vermeule 2 claim that the constitutional rule-of-law apparatus is basically worthless. In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith 3 says just about the opposite. This Review argues that Goldsmith is right and supplements his account by identifying a key mechanism in the political economy he describes. The Review begins by separating the various threads of argument advanced by Posner and Vermeule to expose how implausible their conceptual claims will seem to most lawyers. It then explores how their (largely unsupported) descriptive claims are contradicted by Goldsmith's empirical account as well as by other evidence adduced here. The Review closes by suggesting that one of the most plausible causal mechanisms for the efficacy of law--the deep vein of respect for legality that characterizes our culture--is itself a primary target of Posner and Vermeule's project.

Full Article: http://www.michiganlawreview.org/assets ... tenson.pdf

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District of Columbia Jones and the Mosaic Theory – In Search of a Public Right of Privacy: The Equilibrium Effect of the Mosaic Theory

Jace C. Gatewood

92 Neb. L. Rev. 504 (2014)

Abstract

The "mosaic theory" refers to a concept borrowed from a series of cases involving challenges by the government to requests under the Freedom of Information Act (FOIA), and adapted by the Maynard court for Fourth Amendment use. The theory is based on the concept that the whole is greater than the sum of its individual parts and that the aggregation of information takes on greater significance when combined with other items of information. Applying this theory in Maynard, the court found that isolated and discrete actions of the government that are not deemed searches individually, may become searches when aggregated together en masse, thus violating a person’s reasonable expectation of privacy. In this regard, the Maynard court found that the government’s warrantless use of a GPS tracking device for four weeks violated the defendant’s reasonable expectation of privacy and constituted a search under the Fourth Amendment. The Maynard decision marked a dramatic shift in Fourth Amendment jurisprudence, and, at the time of its decision in 2010, was contrary to holdings of several other circuit courts. In the aftermath of Maynard, many articles were written on the mosaic theory and its viability for Fourth Amendment use. Some of the articles argued against the wisdom of the mosaic theory and its use in Fourth Amendment jurisprudence because of its impracticability. However, notwithstanding the perceived difficulty of applying the mosaic theory to Fourth Amendment violations, it is precisely the impracticality of the use of the mosaic theory that will save Fourth Amendment privacy rights and restore a balance between the government’s interest in investigating crime and society’s interest in maintaining privacy in and out of the public eye. Prior to the advent of modern technology, "the greatest protections of privacy were neither constitutional nor statutory, but practical." Today, amid new technologies capable of constant twenty-four hour, seven day-a-week, monitoring, the boundary between privacy and pragmatic considerations is non-existent, and privacy protection has been eroded in favor of law enforcement. No longer is the government constrained by investigatory methods that require massive amounts of manpower or resources. New technology has enabled law enforcement officials to become more cost-effective and more efficient, without concern to the pragmatic considerations that existed prior to wiretaps, pen registries, thermal scans, beepers and GPS technology. The mosaic theory will help establish equilibrium between privacy expectations and effective law enforcement. This Article discusses the mosaic theory and the issues raised regarding its viability in resolving Fourth Amendment privacy concerns in the wake of advanced technology, and how its application, despite its flaws, will provide a balancing effect between the protections afforded by the Fourth Amendment and technological advances that continually exert pressure on the scope and meaning of the Fourth Amendment.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2282019