4th Amendment Thread

[heydaralon]

In ten years you will need a FISA court warrant just to watch xHamster videos.

[de officiis]

We can hope. Meanwhile, they just solved a murder case with Fitbit data, so don't expect this rollback to last.

Napolitano's take on this: it wasn't done in good faith...

https://www.creators.com/read/judge-nap ... more-lying

[de officiis]

Hoosiers planning to commit a crime probably should leave their mobile phones at home — unless they want to make it easier for police to nab them.

The Indiana Supreme Court ruled Thursday that individuals have no privacy expectation under the Fourth Amendment in historical location data collected by their telephone company when their wireless phone is in use.

That means police do not need a warrant to request records showing which cellphone towers were used to connect a call or transmit a text message, in effect pinpointing where a person was at a specific moment in time.

Chief Justice Loretta Rush said the "third-party doctrine" adopted by most federal courts, and now Indiana, holds that individuals cannot keep secret any information they voluntarily convey to a third party.

That includes the location data tied to a specific device that's necessary for a telephone company to connect a call, transmit a message, bill appropriately or monitor its network, Rush said.

At the same time, she noted that Hoosiers enjoy a heightened expectation of privacy under the Indiana Constitution, so police cannot simply gather past location data on everyone in the state and use it to solve crimes.

Rather, police must have strong suspicion that a specific person committed a crime, the privacy intrusion must be minimal and the needs of law enforcement have to justify the data request, Rush said.

http://www.nwitimes.com/news/local/govt ... 962e7.html

[SuburbanFarmer]

Oh that's a relief then. They need a "strong suspicion".

What a circus.

[de officiis]

The Effect of Legislation on Fourth Amendment Interpretation

Orin S. Kerr 115 Mich. L. Rev. 1117 (2017)

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a co-equal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.

https://papers.ssrn.com/sol3/Papers.cfm ... id=2819878

[de officiis]

EFF, Sen. Anderson Sponsor California License Plate Privacy Legislation

Sacramento—The Electronic Frontier Foundation (EFF) and Sen. Joel Anderson (R-Alpine) have introduced a California bill to protect drivers’ privacy by allowing them to cover their license plates while parked to avoid being photographed by automated license plate readers (ALPRs).

The legislation will be considered by the California Senate Transportation and Housing Committee on Tuesday, May 9, 2017. EFF Investigative Researcher Dave Maass will testify as a witness in support of the bill.

Under current law, Californians can cover their entire vehicles—including the plates—when lawfully parked. The proposed bill, S.B. 712, would clarify that California drivers can cover just the plate under the same circumstances. Law enforcement officers would still have the authority to lift the cover to inspect a license plate.

ALPRs are high-speed cameras that photograph the license plates of any vehicles that pass within view and convert the plate scans into machine-readable information. GPS coordinates and time stamps are attached to the data, which is uploaded to a searchable central database. Depending on the database, this information may be accessed by a variety of sectors, including law enforcement, the insurance industry, and debt collectors. In aggregate, this data can reveal sensitive, private location information about innocent people, such as their travel patterns, where they sleep at night, where they worship, when they attend political protests or gun shows, and what medical facilities they visit.

The bill would allow vehicle owners to shield their license plates from ALPRs mounted on police cars or vehicles operated by private surveillance companies that cruise down streets and in parking lots photographing licenses of parked cars. These companies often offer services such as the ability to predict a driver’s movements or to identify a driver’s associates based on vehicles regularly found parked near each other.

Small steps...

[de officiis]

Note, If These Walls Could Talk: The Smart Home and the Fourth Amendment Limits of the Third Party Doctrine, 130 Harv. L. Rev. 1924 (May 2017)

The emergence of home automation — otherwise known as the “smart home” — is a natural step in the proliferation of everyday products that connect to the internet. Smart home technologies necessitate the sharing of personal information across a multitude of third-party service providers, which is disconcerting to privacy advocates. ... what looms largest is the threat of government collection and aggregation of this information from said third parties. The detrimental effects of such unconstrained information gathering are well documented. ... More generally, the collection of such information represents ever-growing intrusions into personal privacy. Our daily activities increasingly involve turning over information to third parties in order to undertake basic transactions, such as online banking, email, internet browsing, and cell phone use. Further, such advances in technology make it such that “those records are linked and shared more widely and stored far longer than ever before, often without the individual consumer’s knowledge or consent.”
...
This Note argues that the current third party doctrine cannot adequately protect individuals’ privacy rights that are implicated in the smart home context. Thus, the Supreme Court ought ... to update the doctrine. Further, the Court can do so in a way that is consistent with its own Fourth Amendment jurisprudence — by applying the context-based “reasonable expectation of privacy” test. ... the Court should consider the voluntariness of the disclosure, the nature of the information shared, and the identity of the recipients, as it did when deciding the cases leading up to what is now the third party doctrine. The context of smart homes puts the modern absurdity of the third party doctrine into especially stark relief. ...The home is the bedrock of the Supreme Court’s Fourth Amendment jurisprudence, where individuals’ privacy interests are at their peak. It is difficult to imagine that the Court would countenance the third-party exception’s working to provide the government warrantless entry into any home it wishes.

[SuburbanFarmer]

I'd be surprised if they even hesitate to give carte-Blanche in the name of Security.

[de officiis]

I'd be surprised if they even hesitate to give carte-Blanche in the name of Security.

Well you're probably right, but at some point our lives become so intertwined with all of this technology controlled by private companies that they really will need to reassess the wisdom of the third-party doctrine, because it will essentially nullify the right to privacy, and it's no answer to say, "well you can just choose not to use all of that tech." I think the SCOTUS opinion on cell phones was a step in the right direction favoring the recognition that people still have reasonable expectations of privacy despite all of these technology advancements.

[SuburbanFarmer]

I'd be surprised if they even hesitate to give carte-Blanche in the name of Security.

Well you're probably right, but at some point our lives become so intertwined with all of this technology controlled by private companies that they really will need to reassess the wisdom of the third-party doctrine, because it will essentially nullify the right to privacy, and it's no answer to say, "well you can just choose not to use all of that tech." I think the SCOTUS opinion on cell phones was a step in the right direction favoring the recognition that people still have reasonable expectations of privacy despite all of these technology advancements.

They've already made that choice. Private interests trump citizens. Every time, in every court, in every way that matters.

Maybe things will look better in 2 years, but for now, I'm extremely pessimistic on this. There is no limit to hard they're willing to fuck us for a buck.