4th Amendment Thread

[de officiis]

In first, U.S. judge throws out cell phone 'stingray' evidence

Nate Raymond - 7/13/16

(Reuters) - For the first time, a federal judge has suppressed evidence obtained without a warrant by U.S. law enforcement using a stingray, a surveillance device that can trick suspects' cell phones into revealing their locations.

U.S. District Judge William Pauley in Manhattan on Tuesday ruled that defendant Raymond Lambis' rights were violated when the U.S. Drug Enforcement Administration used such a device without a warrant to find his Washington Heights apartment

The DEA had used a stingray to identify Lambis' apartment as the most likely location of a cell phone identified during a drug-trafficking probe. Pauley said doing so constituted an unreasonable search.

"Absent a search warrant, the government may not turn a citizen's cell phone into a tracking device," Pauley wrote.

The ruling marked the first time a federal judge had suppressed evidence obtained using a stingray, according to the American Civil Liberties Union, which like other privacy advocacy groups has criticized law enforcement's use of such devices.

[de officiis]

Does Privacy Require Secrecy? Societal Expectations of Privacy in the Digital Age

Christine S. Scott-Hayward - Henry F. Fradella - Ryan G. Fischer - 43 Am. J. Crim. L. 19 (Fall 2015)

Abstract:

This paper presents the results of empirical research assessing societal expectations of privacy in digital information. In recent years, with advancements in technology and an increase in the amount of personal information that individuals disclose online, courts have struggled to determine the application of the Fourth Amendment, specifically the Katz reasonable expectation of privacy test, to that information. Although courts frequently make assertions about individual expectations of privacy in the context of the Fourth Amendment, they rarely base these assertions on empirical data. The goal of the study on which this article is based was to collect data that would assist courts in understanding individual’s subjective expectations of privacy. In 2014, we conducted a survey of over 1200 individuals asking them about privacy expectations in a variety of information. Overall, we found that individuals consistently have significantly high expectations in virtually all of their digital information, even information in which courts have held that they have no expectation of privacy.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2748935

[de officiis]

FOURTH AMENDMENT REMEDIES AS RIGHTS: THE WARRANT REQUIREMENT

David Gray - 96 B.U.L. Rev. 425 (March 2016)

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment supports a warrant requirement. Critics also question the warrant requirement's ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Supreme Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. ... the Court has been wary about imposing a warrant requirement. . . . part of that reserve reflects doubts among the justices about the warrant requirement's status and constitutional pedigree.

This article takes a novel approach, using a conventional Fifth Amendment story to tell an unconventional Fourth Amendment story. In its landmark Miranda decision, the Court held that prospective remedial measures were necessary to resolve pervasive threats to Fifth Amendment rights posed by the "inherently coercive atmosphere" of custodial interrogations. . . . In the intervening years, the Court has maintained the constitutional status of Miranda warnings even though they are not dictated by the text of the Fifth Amendment.

The Fourth Amendment warrant requirement is a prospective constitutional remedy akin to the Miranda prophylaxis. According to its text, and as it would have been understood in 1791, the Fourth Amendment establishes a collective right to remedies sufficient to guarantee the security of the people in their persons, houses, papers, and effects against threats posed by unconstrained governmental searches and seizures. The warrant requirement is just such a remedy, guaranteeing the security of the people against unreasonable search and seizure by interposing courts between citizens and law enforcement officers engaged in the "competitive enterprise of ferreting out crime."

http://www.bu.edu/bulawreview/files/2016/06/GRAY.pdf

[de officiis]

The Internet of Things and the Fourth Amendment of Effects

Andrew Ferguson - 104 Calif. L. Rev. 805 (8/16)

ABSTRACT

"Smart objects" connected to the "Internet of Things" present new possibilities for technological surveillance. This network of smart devices also poses a new challenge for a Fourth Amendment built around "effects." The constitutional language protecting "persons, houses, papers, and effects" from unreasonable searches and seizures must confront this change. This Article addresses how a Fourth Amendment built on old-fashioned "effects" can address a new world where things are no longer just inactive, static objects, but objects that create and communicate data with other things.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2577944

http://www.californialawreview.org/1the ... f-effects/

[de officiis]

DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit

Lauren Kirschner - Pro Publica

Police in Florida and other states are building up private DNA databases, in part by collecting voluntary samples from people not charged with — or even suspected of — any particular crime.

...

Over the last decade, collecting DNA from people who are not charged with — or even suspected of — any particular crime has become an increasingly routine practice for police in smaller cities not only in Florida, but in Connecticut, Pennsylvania and North Carolina as well.

While the largest cities typically operate public labs and feed DNA samples into the FBI’s national database, cities like Melbourne have assembled databases of their own, often in partnership with private labs that offer such fast, cheap testing that police can afford to amass DNA even to investigate minor crimes, from burglary to vandalism.

And to compile samples for comparison, some jurisdictions also have quietly begun asking people to turn over DNA voluntarily during traffic stops, or even during what amount to chance encounters with police. In Melbourne, riding a bike at night without two functioning lights can lead to DNA swab — even if the rider is a minor.

[de officiis]

A SECOND BITE AT THE APPLE: FEDERAL COURTS' AUTHORITY TO COMPEL TECHNICAL ASSISTANCE TO GOVERNMENT AGENTS IN ACCESSING ENCRYPTED SMARTPHONE DATA UNDER THE ALL WRITS ACT

John L. Potapchuk - 57 B.C. L. Rev. 1403 (2016)

Abstract:

. . .

This Note provides a detailed discussion of the underlying legal implications surrounding the so-called public standoff between Apple and the FBI, with particular attention to the propriety of the decryption assistance orders sought by the government under the All Writs Act. It further provides a detailed discussion of In re Order Requiring Apple, Inc. Assist in Execution of Search Warrant, an ongoing matter in the U.S. District Court for the Eastern District of New York, where Apple mounted its first opposition to a decryption assistance order under the All Writs Act. It further argues that the federal courts are authorized to compel third party assistance under the statute in certain situations, however, the statutes authority will eventually become obsolete as advancing technology will soon render such orders overly burdensome. It finally offers an expansion of the Communication Assistance to Law Enforcement Act (“CALEA”) as one potential solution to the threat that impenetrable device encryption poses to the functioning of the American criminal justice system.

https://papers.ssrn.com/sol3/papers.cfm ... id=2768374

[de officiis]

AT&T Is Spying on Americans for Profit, New Documents Reveal

Kenneth Lipp - The Daily Beast

Hemisphere is a secretive program run by AT&T that searches trillions of call records and analyzes cellular data to determine where a target is located, with whom he speaks, and potentially why.

...

In 2013, Hemisphere was revealed by The New York Times and described only within a Powerpoint presentation made by the Drug Enforcement Administration. The Times described it as a “partnership” between AT&T and the U.S. government; the Justice Department said it was an essential, and prudently deployed, counter-narcotics tool.
However, AT&T’s own documentation—reported here by The Daily Beast for the first time—shows Hemisphere was used far beyond the war on drugs to include everything from investigations of homicide to Medicaid fraud.

Hemisphere isn’t a “partnership” but rather a product AT&T developed, marketed, and sold at a cost of millions of dollars per year to taxpayers. No warrant is required to make use of the company’s massive trove of data, according to AT&T documents, only a promise from law enforcement to not disclose Hemisphere if an investigation using it becomes public.

http://www.thedailybeast.com/articles/2 ... rofit.html

[Haumana]

Thanks, DeO. You never lose sight of the ball.

[de officiis]

Thanks, DeO. You never lose sight of the ball.

Thanks. There was a fair amount of copying & pasting involved

[Ex-California]

(shit source, I'm sorry)

http://www.cracked.com/personal-experie ... iracy.html

The police is spying on and blocking Internet access to North Dakota pipeline protesters through cell site simulators without a warrant

So maybe it's not surprising that someone is trying to kick Standing Rock off the internet. (And yes, we've got evidence to back us up. None of this is loopy conspiracy talk.) We first encountered the idea through hearsay, via a man we met at the big camp, in a large tent filled with U.S. military veterans. He'd been a 25 Bravo in the Army -- an information technology specialist. He was the first to allege that the planes flying over were equipped with what he called "scramblers," which "fed white noise into the cell signals" to interfere with internet access at Standing Rock and "keep information from getting out."