4th Amendment Thread

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WATCH OUT: YOU'RE BEING WATCHED (IF YOU'RE MUSLIM)

Aimee Blenner - 16 Rutgers J. Law & Relig. 618 (Summer 2015)

This article will discuss the implications of [a 2012 suit filed by a cross section of New Jersey's Muslim community, claiming they suffered a variety of injuries and violation of their constitutional rights from surveillance by the NYPD] on the surveillance of potential terrorists and how basic constitutional rights - specifically the right to religious freedom granted by the First Amendment - should not be compromised to prevent acts of terrorism. Further, this article will discuss why the public's interest in preventing terrorism should not be used as a justification for massive surveillance of communities across state lines, especially when the individuals targeted are victimized on the basis of their religious beliefs. Lastly, this article will suggest a workable solution for future surveillance programs to avoid unwarranted intrusions into the lives of individual members of religious communities.

http://lawandreligion.com/sites/lawandr ... lenner.pdf

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Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California

Alan Butler - 10 Duke J. Const. Law & Pub. Pol'y 83 (Jan. 2014)

In Riley v. California the Court answered — in a unanimous, nine- to-zero decision — the question of whether the police must obtain a warrant prior to searching an individual’s cell phone incident to a lawful arrest. The Court said, simply and unequivocally, yes, “get a warrant.” Moreover, the Court directly addressed the impact of ever- expanding digital storage, the proliferation of smartphones, and the implications of encryption and access to cloud-based services. The opinion reflected the Court’s newfound understanding of modern communications technologies and their impact on civil rights. It stands as one of the strongest and clearest proclamations of Fourth Amendment rights in the Court’s history.

This article will explore the implications of the Riley decision on future Fourth Amendment cases, including cases challenging the bulk collection of telephone metadata. The article will review the background of Riley and the search-incident-to-arrest doctrine, and describe the new categorical rule adopted by the Court. The article will then consider how the Riley decision will affect lower court rulings on important Fourth Amendment issues: the scope of the search-incident-to-arrest and border-search exceptions, whether the collection of metadata and location information is a search, and the rules governing seizure of electronic records.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2615088

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PROTECTING THE PRIVACIES OF DIGITAL LIFE: RILEY V. CALIFORNIA, THE FOURTH AMENDMENT'S PARTICULARITY REQUIREMENT, AND SEARCH PROTOCOLS FOR CELL PHONE SEARCH WARRANTS

William Clark - 56 B.C. L. Rev 1981 (2015)

Abstract:

In 2014, in Riley v. California, the U.S. Supreme Court held that the police must obtain a warrant before searching a cell phone. Since then, lower courts have struggled to determine what scope limitations judges should place on cell phone warrants in order to ensure that these warrants do not devolve into unconstitutional general searches. This Note argues that the Fourth Amendment's particularity requirement mandates that the government submit search protocols, technical documents that explain the search methods the government will use on the seized device, for cell phone search warrants. This argument is based on the Riley decision, as well as a series of decisions from two magistrate judges that have required search protocols for cell phone search warrants. Detailed search protocols will ensure that cell phone search warrants have a particularized scope and thereby protect the privacies of life modern cell phones contain.

http://lawdigitalcommons.bc.edu/cgi/vie ... ntext=bclr

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Trespass and Deception

Laurent Sacharoff - 15 B.Y.U.L. Rev. 359 (2015)

Police routinely use deception to get into people’s homes without warrant or probable cause. They may pose as UPS delivery persons or homebuyers, or they may say they are looking for a kidnapping victim or a pedophile, when really they are looking for drugs or guns. Recent years have brought hundreds of reported decisions concerning such police ruses.

When the police lie about their identity or their purpose to enter a home, as when they pose as a homebuyer, the courts surprisingly, but routinely, approve these deceptions under the Fourth Amendment. Such intrusions, the courts reason, do not violate a person’s reasonable expectation of privacy and therefore do not even trigger Fourth Amendment protection.

But the Supreme Court has announced a new Fourth Amendment test based on the civil law of trespass, and this new test promises to provide more Fourth Amendment protection against police deception. Now, under United States v. Jones and Florida v. Jardines, any time the police trespass to gain information, they trigger Fourth Amendment protections.

Although Jones and Jardines did not involve police deception, this Article applies, for the first time, the police trespass rule stated in these cases to police deception cases. It makes the claim that the new trespass test should change the outcomes in the leading police deception cases. After all, these deceptive intrusions would otherwise count as trespasses absent consent, and under ordinary trespass principles deception vitiates consent. Without consent, the intrusion counts as a civil trespass and triggers Fourth Amendment protection.

http://digitalcommons.law.byu.edu/cgi/v ... =lawreview

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The Self, the Stasi, the NSA: Privacy, Knowledge, and Complicity in the Surveillance State

Robert H. Sloan and Richard Warner - 17 Minn. J.L. Sci. & Tech. 347 (Winter 2016)

Abstract:

We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?

The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that govern the collection, use, and distribution of information. Adherence to such norms is constitutive of a variety of relationships in which parties coordinate their use of information. Examples include student/teacher and journalist/confidential source. Current surveillance undermines privacy in public by undermining norm-enabled coordination. The 1950 to 1990 East German Stasi illustrates the threat to self-realization. The "hidden, but for every citizen tangible omni-presence of the Stasi, damaged the very basic conditions for individual and societal creativity and development: Sense of one's self, Trust, Spontaneity." 1 The United States is not East Germany, but it is on the road that leads there. And that raises the question of how far down that road it has traveled.

To support the "on the road" claim and answer the "how far" question, we turn to game-theoretic studies of the Assurance Game (more popularly known as the Stag Hunt). We combine our analysis of that game with a characterization of current governmental surveillance in terms of five concepts: knowledge, use, merely knowing, complicity, and uncertainty. All five combine to undermine norm-enabled coordination. The Assurance Game shows how use--both legitimate and not legitimate--leads to discoordination. Enough discoordination would lead to a Stasi-like world. But will that happen? A comparison with the Stasi shows cause for concern. The United States possesses a degree of knowledge about its citizens that the Stasi could only dream of. Moreover--perhaps--it arguably surpasses the Stasi in complicity, even though Stasi informants "spied on friends, workmates, neighbours and family members. Husbands spied on wives." 2 The Stasi only clearly exceeded the United States in repressive use. While it is difficult to predict the future of surveillance, we conclude with three probable scenarios. In only one is there an adequate degree of privacy in public.

http://scholarship.kentlaw.iit.edu/cgi/ ... =fac_schol

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A rough day for the mosaic theory: Ten weeks of public camera surveillance not a search, 6th Circuit rules

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When Targeting Becomes Secondary: A Framework for Regulating Predictive Surveillance in Antiterrorism Investigations

Shaun B. Spencer - 92 Denv. U.L. Rev. 493 (Fall 2015)

The National Security Agency's bulk data collection programs disclosed in 2013 suggest a new model of surveillance. This "predictive surveillance" model will apply the emerging field of predictive analytics to the vast datasets in the hands of third parties. Unlike traditional surveillance, predictive surveillance will not begin by targeting individuals based on particularized suspicion. Instead, predictive surveillance will first collect and analyze all available data to find patterns that could predict future events. In light of the NSA's emphasis on data analysis and its existing stores of telephone and Internet communications metadata, it seems inevitable that the government will eventually advocate for predictive surveillance in antiterrorism investigations. This Article contends that the existing framework of surveillance regulation cannot adapt to predictive surveillance because the existing framework presumes that surveillance begins with targeting. The Article next assesses whether predictive surveillance could comply with the Fourth Amendment. After rejecting arguments that the Fourth Amendment should not apply to information gathered from third parties or in public spaces, the Article proposes a narrow basis for authorizing predictive surveillance. The initial data collection would be reasonable under the Supreme Court's balancing approach in domestic security investigations and under the Court's approval of suspicionless searches in its special needs cases. This approach, however, would only uphold surveillance used for antiterrorism investigations, rather than ordinary law enforcement purposes. Finally, the Article proposes a new regulatory framework that postpones the assessment of particularized suspicion, requires prior judicial approval of the initial data collection and analysis, limits use of the database to antiterrorism investigations, and imposes substantial oversight and transparency.

http://static1.1.sqspcdn.com/static/f/2 ... %2FPYDw%3D

If half of what this guy says is correct, we are moving into an entirely new area of 4th Amendment jurisprudence that ultimately involves predicting "pre-crime." But don't worry, it'll only be used to fight terrorism.

[de officiis]

Taking the Sting Out of the Stingray: The Dangers of Cell-Site Simulator Use and the Role of the Federal Communications Commission in Protecting Privacy & Security

Jason Norman - 68 Fed. Comm. L.J. 139 (Feb. 2016)

Data-driven law enforcement has increased at an alarming rate in post-9/11 America. … The electronic surveillance culture that emerged in the wake of the 9/11 terrorist attacks has given credence to privacy invasion at all levels of law enforcement.

One pervasive surveillance tool is the Stingray. The Stingray can intercept all cellular communications, voice and data, within its broadcast range. This interception can include conversations, locations, email, contacts, and any other private data that the phone has stored in its local memory, all without the user's knowledge or consent. …

This note will provide background on how Stingrays work, discuss the impact they have on privacy and security, explain why their use undermines our justice system, and review the statutory authority that the FCC has to regulate them. Finally, this note will argue that the FCC should enact rules that mandate stronger wireless encryption standards and allow consumers to have access to existing security features to protect themselves against insecure transmissions.

http://www.fclj.org/wp-content/uploads/ ... Norman.pdf

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The upshot is that the government needs a national security or foreign intelligence purpose only for the initial collection and analysis of information. Once it has communications in its custody, those limitations no longer apply and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant.

https://www.eff.org/deeplinks/2016/04/s ... -amendment

Truly frightening to anyone who cares about the Fourth Amendment.

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A Domestic Consequence of the Government Spying on Its Citizens: The Guilty Go Free

Mystica M. Alexander William P. Wiggins - 81 Brooklyn L. Rev. 627 (Winter 2016)

This article argues that Congress should amend the [Posse Comitatus Act] to ensure improved enforcement of the restrictions on the ability of the military to engage in civilian surveillance. Part I explores the history of U.S. government surveillance of its citizens and the permissible limits of such actions in the post-9/11 environment. Part II outlines the legal parameters of permissible military involvement in local law enforcement and discusses the distinction between direct and indirect military involvement. Part III highlights the government's position in United States v. Dreyer as evidence of the government's firm belief in the broad reach of its surveillance powers. Part IV illustrates how the exclusionary rule has historically been applied in response to Fourth Amendment violations in general and to PCA violations specifically. Part V examines the interests that must be balanced in deciding whether to apply the exclusionary rule and considers what actions can be taken, apart from the suppression of evidence, to address concerns of military overstep. The article concludes with a recommendation that Congress update and expand the PCA. This can be accomplished by legislative changes that clarify that the PCA and its sanctions apply to all branches of the military. In addition, Congress should mandate that the Department of Defense (DoD) promulgate regulations that ensure enforcement of the Act's sanctions so that those who violate the proscription against military involvement in civilian law enforcement will be held accountable.

http://brooklynworks.brooklaw.edu/cgi/v ... ontext=blr