4th Amendment Thread

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In the interests of having a single thread on 4th Amendment issues, I decided to start this . . . obviously not obligatory to post here, but since I do post on 4th Amendment developments from time to time, I'll be posting here. Thanks

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The Fourth Amendment and Government Interception of Unsecured Wireless Communications

Berkely Tech. L. J., Vol 28, Sept. 16, 2013
Shaina Hyder

From its inception, Google Street View fascinated users with detailed, “360-degree street-level imagery”1 of locations ranging from famous landmarks to small town neighborhoods.2 To capture these images, Google sent a fleet of cars equipped with cameras and GPS receivers around the world.3 In addition to taking photographs, Google utilized car-mounted antennas to take snapshots of the surrounding Wireless Fidelity (“Wi-Fi”) landscape, scanning the airwaves for traces of Wi-Fi beacons to identify Wi- Fi networks by their name, numeric hardware ID, and other details.4 Google then uploaded lists of Wi-Fi network identities and signal strengths in order to create a Wi-Fi network location database to broaden Google’s geolocation-based services.5 This database allowed Google to track a mobile device’s—and thus a user’s—approximate position based on Wi-Fi network signals and the degree to which those signals overlap with the signal of the mobile device.6

Today, most homeowners encrypt their home Wi-Fi networks. However, when Google first began deploying its Street View vehicles, far fewer households encrypted their Wi-Fi networks.7 Google’s Street View cars intercepted the data packets coming from and leaving homes with unencrypted Wi-Fi networks by employing a device called a packet sniffer.8 Though Google claimed it was interested only in the public names of the wireless networks, Google used the packet sniffer to collect and analyze all types of data broadcasted through unprotected Wi-Fi connections,9 including sensitive private information such as e-mails and passwords.10

The ease with which Google conducted large-scale interception of wireless communication for a period spanning multiple years gives rise to the possibility that governments might use similar technology to conduct large- scale surveillance of the wireless communications of individual citizens, without any perceptible legal checks in place. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,”11 but the extent to which the Fourth Amendment will provide individuals a right to privacy for the contents of their wireless communications remains an open question. This question falls at the intersection of the Federal Wiretap Act and the Fourth Amendment. The Federal Wiretap Act prohibits the intentional interception of “any wire, oral, or electronic communication” unless one or more statutory exceptions applies.12 Importantly, § 2511(2) of the Wiretap Act provides a statutory exception where the “electronic communications system [is] configured so that such electronic communication is readily accessible to the general public.”13 Under this exception, companies like Google have virtually free rein to intercept Wi-Fi communications if the Fourth Amendment does not protect those communications. If Congress or Courts do not limit this exception, the exception could set a dangerous precedent permitting law enforcement officials to freely intercept information exchanged through unsecured wireless networks.14

This Note examines the budding tension between the Fourth Amendment and the Federal Wiretap Act, concluding that although current cases read the Wiretap Act as permitting certain private instances of Wi-Fi sniffing, the Fourth Amendment should prohibit the government from intercepting unsecured Wi-Fi signals.

Full Article: http://btlj.org/data/articles/28_AR/093 ... 13_Web.pdf

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Jonesing for a Test: Fourth Amendment Privacy in the Wake of United States v. Jones
U.C. Berkeley Tech. L. J. 28:1003 (2013)

Lauren Elena Smith

Given the prevalence of location-tracking information today and lack of judicial guidance on the matter, many looked to the recent Supreme Court case United States v. Jones8 as a case that would breathe fresh life into the relevance of the constitutional standards for reasonable search and possibly stop the erosion of Fourth Amendment protections.9 The various opinions in Jones, however, answered few questions about how the Fourth Amendment should be applied in the face of new technology—such as remote GPS tracking—that can transmit information without a trespass. Yet, while the Jones majority did little to stop the erosion of Fourth Amendment protections because it focused exclusively on the government’s trespass on the defendant’s vehicle, the two concurrences suggest future judicial evaluation of changing expectations of privacy in the digital age.

This Note reviews prior standards for Fourth Amendment search, and explores the effects of the Jones opinions on the development of Fourth Amendment law. It analyzes the opinions in Jones, as well as the lower D.C. Circuit decision, in order to shed light on the implications of the case for pressing Fourth Amendment questions in the Information Age.

Part I frames the later discussion by examining the legal history of reasonable search, focusing on the shift from a trespass-based standard to one that turns on a person’s reasonable expectation of privacy. In particular, Section I.C highlights the role of technology in increasing the relevance of the reasonable-expectation-of-privacy test given the frequency with which citizens “voluntarily” share their data and actions in the Information Age.

Part II lays out the facts and judicial history of Jones and examines the majority and concurring opinions.

Part III explores the practical implications of Jones, reviewing the effects that the case has already had on judicial decisions and legislation. It examines the effects both of the binding aspects from the majority Jones decision related to trespass, as well as the dicta and potential second holding from the concurrences related to reasonable expectations of privacy in the Information Age.

Part IV explores the unresolved questions raised by the Jones concurrences as to whether, and how, judicial understandings of reasonable expectations of privacy should adapt to the Information Age. It analyzes opinions from the cases examined in Part I and from Jones to focus on third party doctrine and mosaic theory in reexamining the volition at the heart of “voluntary” communication of information today.

Finally, Part V notes the shortcomings of Jones in addressing pressing Fourth Amendment questions in the Information Age. It concludes that courts may need to reexamine what constitutes voluntary communication of information in order for the Fourth Amendment to remain relevant in the Information Age.

Full article: http://btlj.org/data/articles/28_AR/100 ... 13_Web.pdf

Resources:

United States v. Jones

U.S. v. Maynard (D.C. Circuit Opinion)

Smith's article at 1013:

The D.C. Circuit, in a case titled United States v. Maynard, sided with Jones on this claim and stated that the evidence obtained by the warrantless search in violation of the Fourth Amendment could not be used in court.60 The D.C. Circuit relied on a “mosaic theory” of exposure to hold that individuals have a greater expectation of privacy in the summation of their exposed movements than in each individual movement.61 Under this theory, the court distinguished between actual and constructive exposure and concluded that a person’s vehicular movements over the course of one month, while actually exposed to the public because they took place on public streets, were not constructively exposed because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”62 The court argued that the unlikeliness of such observation rendered Jones’ expectation that it would not occur reasonable under the Katz test.63 The court analogized the “intimate details” that would inevitably be collected during long-term surveillance of a car to the “intimate details” that were originally considered important enough to lead to the sanctity of the home under the Fourth Amendment.64

More on the "mosaic" theory and U.S. v. Jones: http://www.dancarlin.com/phpbb3/viewtop ... ic#p506154

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Here's a good one from this week to check out regarding GPS devices and warrants. Give it a read, and anyone who'd like to discuss, I'm all ears. The "good faith" part of this case, as well as the general application of the "automobile" warrant exception to GPS search cases (see also Jones referenced and de o's post of 30Sept13 just above) is just about sure to wind up on the desks of Fat Tony, et al, relatively soon.

(ALERT: RANDOM BREAKING BAD SPOILER ALERT--This paragraph only--This case and others like it always make me think about how odd it was that Hank and the DEA only had the old-school GPS that didn't give real-time data. Didn't fit the story-board, I'm sure.)

FYI: The U.S. Court of Appeals for the Third Circuit hears cases on appeal from, and its decisions govern, the federal trial level courts (U.S. District Courts) in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. Appeals from this Court are applied for with the U.S. Supreme Court.

Third Circuit Requires Warrant for GPS Monitoring and Limits Good-Faith Exception in United States v. Katzin

Today the Third Circuit handed down United States v. Katzin, an important cases on three related issues of Fourth Amendment law: first, whether the installation of a GPS device requires a warrant; second, the scope of the Davis good-faith exception to the exclusionary rule; and third, who has standing to suppress the evidence from the physical search of a car following a GPS search.

The divided court ruled in the defendants’ favor on all three issues. First, installation of a GPS device requires a warrant; second, the Davis good-faith exception applies only when there was directly on-point binding appellate precedent allowing the government’s acts; and third, every passenger in the car at the time it is stopped has standing to challenge the fruits of the subsequent physical search. There’s a lot in the Katzin case, so I thought I would blog on the three issues and offer my perspective on them.

I. The Facts

The police were tracking a string of burglaries at Rite-Aid pharmacies across several states, and they came to have very strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van. The police found the van one day, so they called the local U.S. Attorney’s Office. The prosecutors at the office advised them that they could put the GPS device on without a warrant. (This was December 2010, before the Supreme Court’s GPS decision in Jones.) The police attached the GPS device on the car when it was parked on a public road. The device allowed the police to monitor the location of the car in real-time remotely. The GPS device quickly paid off: Just several days after placing the GPS device on the car, the GPS showed the car parked for a few hours right next to a Rite-Aid pharmacy. The police waited for the car to move, and then stopped the car. All three brothers were inside, and a search of the car revealed lots of stolen property from the Rite-Aid pharmacy. All three defendants moved to suppress.

II. The Warrant Requirement

The Court first holds that a warrant is required to install and used a GPS device on a car. The Court rejects several arguments by DOJ that a warrant isn’t necessary. I think the most difficult and most interesting argument is the automobile exception. As I explained back when Jones was decided, there is at least a plausible doctrinal argument that the Fourth Amendment requires probable cause but not a warrant to install a GPS device under the automobile exception. The automobile exception creates a bright line rule that searches of cars don’t require a warrant, and that should be just as true when the search of a car occurs through the GPS device as through any other search of the car. The Third Circuit disagreed on the ground that a GPS search of a car happens over time:

[Past cases on the automobile exception were] limited to a discrete moment in time. For example, the exception permits the police to enter upon and search a vehicle to ascertain whether it indeed contains the evidence that they suspect is inside. . . . Attaching and monitoring a GPS tracker is different: It creates a continuous police presence for the purpose of discovering evidence that may come into existence and /or be placed within the vehicle at some point in the future.

It is no argument, then, to say that a GPS search presents the type of circumstances that usually trigger the automobile exception. It does not. While the police are still physically intruding into a target vehicle for evidence-gathering purposes, a GPS search extends the police intrusion well past the time it would normally take officers to enter a target vehicle and locate, extract, or examine the then-existing evidence. . . .

Ultimately, in executing a GPS search, the police were not attempting to recover or ascertain the presence of evidence already present in Harry Katzin's vehicle. If they were, the automobile exception would have sanctioned their search in so far as it allowed them to enter Harry Katzin's van and retrieve and/or verify the presence or absence of the sought-after evidence. It would not (and, indeed, did not) permit them to leave behind an ever-watchful electronic sentinel in order to collect future evidence. Were we to hold otherwise, we would unduly expand the scope of the automobile exception well past its “specifically established and well delineated” contours, Ross, 456 U.S. at 824, permitting the police to intrude indefinitely upon a target vehicle based solely on the prospect that it will, in the future, contain some contraband or be used during the commission of a crime.

I don’t yet have fixed views on whether the warrant requirement should apply to Jones GPS searches, although the Court’s answer here strikes me as plausible. In my view, though, the best argument for introducing a warrant requirement is the practical implication of the time-bound aspect of the search, not its mere existence. In a traditional one-time automobile search, the search is allowed based on probable cause to believe that there is evidence in the car at that moment. With a GPS search, however, the government doesn’t want to search the car now: It wants to know where the car goes over time. As a result, the concept of probable cause has a necessary implied time window. That is, probable cause would mean a reasonable likelihood that the location of the car will yield evidence of the car not at this instant, but rather over some period of time into the future. If there’s a warrant requirement, courts can allow searches that are particular to that probable cause, in effect establishing a particularity in time instead of the usual particularity in physical space. Without a warrant, there’s no obvious way to regulate the time window; the police won’t know how long they can use the GPS device once it is installed. As I see it, this is why the one-time search versus search-over-time makes a difference. The scope of the search is defined by time instead of space, and a warrant can impose a time restriction that otherwise is hard to imagine. Cf. Berger v. New York (1967). Given that, it’s plausible to say that the automobile exception applies only when there is probable cause to believe there is contraband or evidence to search the car at that moment, not over some unspecified future period of time. So consider that a friendly amendment to the Third Circuit’s reasoning.

III. The Good-Faith Exception

The court next rules that the good-faith exception doesn’t apply because there was no binding appellate precedent allowing the installation of the GPS device. If you’re unfamiliar with this subject, you might want to read this recent post on lower court interpretations of Davis v. United States to get up to speed on the issue. (Seriously, I’ll wait.)

The court’s holding on the good faith exception has several moving parts. First, the court adopts the narrow view of Davis that it only applies when there is binding appellate precedent. Caselaw from other circuits is irrelevant: Unless the Supreme Court or the Third Circuit has approved the search, Davis cannot apply. As far as I know, this is the first federal circuit court to squarely address the issue of whether Davis extends beyond binding circuit precedent; as I note in Part 4 of my earlier post, this is an issue that is being litigated across the country with very broad divisions in the district court.

Second, the court holds that Davis only applies when the binding appellate precedent “clearly sanctions” the search in the subsequent case. Here the court takes a somewhat different view than other circuits, specifically on the issue of whether cases involving beepers clearly sanction cases involving GPS devices. Other courts have indicated that cases from the 1970s and 1980s involving beepers can “clearly sanction” the installation of a GPS device. See, e.g., United States v. Sparks, 711 F.3d 58 (1st. Cir. 2013) (concluding that an officer relied reasonably on radio beeper cases from 1970s and 1980s to install a GPS device because “nothing inheres in the technology to take it out of” those cases, and those cases “gave scant reason to think that the duration of the tracking in that case was material to the Court’s reasoning”) The Third Circuit disagrees, concluding that officers should know that GPS devices are so different from beepers that the beeper cases can’t apply to GPS surveillance:

As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way, courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill-fitting) analogy.

Third, the court holds that the good-faith exception shouldn’t apply under the broader Herring/Davis culpability standard:

[T]he police did not act in a total vacuum, but their chosen course of action when presented with such a novel constitutional situation is nonetheless troubling: In lieu of a binding proclamation from either this Circuit or the Supreme Court — and instead of seeking approval from a neutral magistrate — law enforcement personnel looked to other (non-binding or distinguishable) authorities like our sister circuits’ decisions. Essentially, they extrapolated their own constitutional rule and applied it to this case. We fail to see how this absolves their behavior. The assumption by law enforcement personnel that their own self-derived rule sanctioned their conduct — to say nothing of their unstated belief that this Circuit would automatically side with a majority of the minority of our sister circuits — was constitutionally culpable.

I’m no fan of the Davis good-faith exception — as regular readers know, I think it was wrongly decided — so on one hand, I appreciate the fact that the court construed the case narrowly. Limiting the case to “binding” appellate precedent seems correct, as the Supreme Court clearly relied on that limitation to justify its holding. With that said, as much as I oppose the introduction of a free-floating culpability requirement on the exclusionary rule, if courts are to recognize such a requirement, it probably should mean something: The court here seems to add the requirement (which it didn’t have to do) but then construes to mean almost nothing. The police here didn’t apply a “self-derived” rule, as the court says; they applied the rule that was reflected in the caselaw and found in the treatises. If there’s a culpability requirement to be applied, then it seems like a relatively tough fit with the facts here. Anyway, much of good-faith exception material is likely to lead to relatively deep splits in the next two to three years, so all of this is probably just percolation that will end up leading to future Supreme Court decisions.

IV. Standing

Finally, the court also decides that all three brothers have standing to object to physical search of the van even though only one of them, Harry Katzin, owned the van. All three brothers have standing, the court rules, because Third Circuit precedent dictates that an unlawful seizure of a car leads to the suppression of evidence of all evidence found in a search or the car. That’s what happened here, the court reasons: The illegal warrantless GPS search led to the illegal stop of the car, and all the passengers therefore had standing. Accepting that Third Circuit precedent as fixed, that result seems correct, although it’s important to note that the standing here is as to the physical search of the car, not the GPS search: As far as I can tell, the court doesn’t reach the issue of who has standing to challenge the admissibility of the GPS evidence directly.

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The Fourth Amendment's National Security Exception: Its History and Limits
66 Vand. L. Rev. 1343 (Oct. 2013)

L. Rush Atkinson
U.S. Department of Justice, National Security Division. A.B., University of Chicago; M.Phil., University of Cambridge; J.D., New York University

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes. 1 And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. 2 Between 2004 and 2011, the Federal Bureau of Investigations ("FBI") issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations. 3

Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects to receive Miranda warnings, 4 confront accusers, 5 and obtain civilian trials are unclear. 6 Similar constitutional questions surround the Fourth Amendment and its application to national security matters. The balance between the Fourth Amendment's protections and the President's inherent power to defend the nation [*1346] has become a focus of litigation in recent years yet still remains murky. 7

To clarify the constitutional parameters of national security investigations, this Article examines the Fourth Amendment's historical influence in security affairs. 8 Claims about historical practice pervade debates over modern surveillance programs, including those about the Bush Administration's warrantless wiretapping program and recent amendments to the Foreign Intelligence Surveillance Act ("FISA"). These historical treatments remain cursory, however, 9 and have failed to detail how the Fourth Amendment regulated national security operations in the pre-September 11 era.

Archived materials reveal that the federal government has long embraced the notion that national security constitutes an exception to the traditional rules of the Fourth Amendment. Starting at the end of World War II, federal agents investigating security cases began to conduct warrantless electronic surveillance and physical searches on the theory that a national security exception permitted this otherwise unconstitutional conduct. 10 During the Cold War, leaders in the White House and Justice Department relied on this same exception to authorize aggressive surveillance of suspected foreign threats. 11 Tentative support from the judiciary in the late 1960s and 1970s encouraged greater national security surveillance, in many cases beyond the ordinary constitutional bounds imposed on law enforcement. 12

The national security exception, however, by no means gave federal agents carte blanche investigatory power. Well into the 1970s, the executive branch assumed that the national security exception permitted only, in the words of FBI Director J. Edgar Hoover, "purely intelligence" focused investigations. 13 This "pure intelligence" rule meant that evidence gleaned from warrantless searches and surveillance was constitutionally inadmissible in subsequent prosecutions - a limitation with important ramifications. On various occasions, prosecutors concluded that the Fourth Amendment barred the admission of evidence gleaned or derived from security investigations at trial. Prosecutors elected not to present such information; as a result, spies and foreign agents escaped conviction, despite clear evidence of wrongdoing. 14

Commentators who fail to identify the limits of these early investigations overemphasize the government's power to investigate foreign threats at the expense of liberty interests or, instead, dismiss this period as lawless and irrelevant for purposes of legal precedent. In reality, a clear legal framework regulated the scope of national security investigations, and records reveal a palpable opinio juris - a sense of legal obligation - that governed the constitutional boundaries of security operations. This Article, contrary to some contemporary assertions, shows that the Fourth Amendment played a pronounced, restrictive role in early national security investigations, even in the face of grave security risks. 15

The history described in this Article also bears directly on lawsuits challenging the government's newest national security surveillance programs, including the Supreme Court's recent case of Clapper v. Amnesty International USA. 16 As explained below, civil litigation has been stalled by the apparent fact that the government has not used data collected from these surveillance programs in subsequent criminal prosecutions. 17 While this issue has only been discussed in the context of procedural matters - particularly standing - this Article notes that it has substantive significance as well. Limiting the use of collected information to nonprosecutorial purposes strengthens the government's claim that its conduct to date has complied with the Fourth Amendment by establishing a practice parallel to the restraints imposed upon the early security investigations. Even if the government never formally acknowledges this limitation, the empirical evidence indicating restraint (i.e., the vast amount of intelligence collected versus the marginal amount used at trial) should assure courts that these new programs have not eroded historical protections.

This Article proceeds as follows. Part II summarizes national security investigations, pending Fourth Amendment issues, and the legal relevance of the executive's historical practices. Part III explores the legal framework for earlier national security investigations, focusing on the period between the end of World War II and the passage of FISA in 1978. Specifically, Part III explains the origins of the national security exception, the limits placed on this exception (particularly the pure intelligence rule) and the consequences of those limits (most notably, failed prosecutions). Part IV evaluates the legal and policy merits of the pure intelligence paradigm and juxtaposes early practice with that of modern surveillance programs.

Full article: http://www.vanderbiltlawreview.org/cont ... v_1343.pdf

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Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

Columbia Law Rev. November 2013 Sidebar

Jason A. Cade

A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina, in cases arising from systemic unlawful policing.

Part I briefly describes how ICE lawyers (also called “Trial Attorneys” or “ICE prosecutors”) in the Charlotte Immigration Court have closed deportation cases against noncitizens arrested through unlawful policing by local officers in North Carolina, following a Department of Justice (DOJ) report on the discriminatory targeting of Latinos in Alamance County, North Carolina. The Essay then explores two potential bases for an ICE prosecutor’s decision to take remedial action when arresting officers violate the constitution. First, Part II examines ICE prosecutors’ constitutional responsibilities as executive branch attorneys in light of the Supreme Court’s decision to underenforce the Fourth Amendment in the context of immigration arrests. Part III then considers whether ICE’s remedial actions in North Carolina comport with internal agency guidelines for exercising prosecutorial discretion in deportation cases.

Full Article: http://www.columbialawreview.org/polici ... lice_cade/

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Protecting Security & Privacy: An Analytical Framework for Airborne Domestic Imagery

Colonel Dawn M.K. Zoldi, 70 Air Force Law Rev. 1 (2013)

I. INTRODUCTION

More than ten years of war in the combat zones of Iraq and Afghanistan have taught a generation of Total Force Airmen valuable lessons about the use of Remotely Piloted Aircraft (RPA) 1 and other Intelligence, Surveillance and Reconnaissance (ISR) assets. The lesson yet to be learned, however, is that this battle space experience is not directly applicable to operations in the United States (U.S.). 2 As the nation winds down these wars, and United States Air Force (USAF) RPA and ISR assets become available to support other combatant commands or U.S. agencies, the appetite to use them in the domestic environment to collect airborne imagery continues to grow, as does Congressional 3 and media interest 4 in their employment. Commanders, operators, intelligence and legal professionals must understand the limited circumstances in which USAF RPAs and ISR assets may be used to collect, process, view, analyze, retain and distribute domestic imagery (DI) consistent with Intelligence Oversight (IO) rules, 5 the Posse Comitatus Act (PCA) and other laws and policies. 6 Although numerous directives, instructions, regulations and policies exist relevant to the most common airborne DI requests in the U.S., determining which guidance actually applies and who can approve a particular mission remains a challenge in some cases. The purpose of this article is to review existing rules and present a comprehensive analytical framework to guide practitioners in obtaining the appropriate level of approval for typical airborne DI requests. 7

II. THE LEGAL LANDSCAPE

As a general proposition, the Department of Defense (DoD) cannot domestically collect information on non-DoD affiliated individually identifiable U.S. persons (USPER) or organizations using airborne DI or otherwise unless some very specific conditions are met. Yet, at the same time, the DoD has a wide range of national security responsibilities which may require DI collection. The DoD needs to train using DI for combat proficiency, including for combat search and rescue operations. At any given time, and without warning, the DoD may be called upon to give support to civil authorities with DI during crisis situations ranging from hurricanes, to lost hikers, to acts of domestic terrorism. Commanders at local units may need to use DI to protect the people, facilities and equipment under their charge. These examples of potential DI needs are but a few. Given this broad spectrum of operational requirements, the DoD has issued a host of policies and rules that govern this sensitive area. The challenge is to determine which rules apply and when. This is an important determination because the rules designate whether DoD can participate in the mission, whether DoD participation requires a request from an outside agency, which agencies can make the request (and at what level), what DoD capabilities, if any, can be utilized, who can approve DoD participation in the mission and under what constraints. Capability does not equal authority.

The rules applicable to DoD collection of airborne DI are codified in terms of the capability to be used, the mission to be accomplished, or as a combination of both. Below is an overview of the current legal landscape to provide the baseline understanding necessary to analyze a DI request.
. . .

3. Remotely Piloted Aircraft (RPAs)

In September 2006, the DepSecDef issued a Memorandum, Interim Guidance for the Domestic Use of Unmanned Aircraft Systems, which still remains in effect. 28 According to this memo, DoD RPA operations "shall not conduct surveillance on specifically identified U.S. persons, unless expressly approved by the Secretary of Defense, consistent with U.S. law and regulations." AFI 14-104, reiterates this requirement verbatim. 29

SecDef approval for RPA use is also required for specific missions, including Defense Support to Civil Authorities (DSCA), Military Support of Civilian Law Enforcement Agencies (LEA), Counter-Drug (CD) Operations and National Guard use of DoD RPAs for governor-requested state missions. For training purposes, use of RPAs "outside of DoD-controlled airspace," requires notification to the Chairman of the Joint Chiefs of Staff (CJCS). 30 These missions, including training, will be further discussed below in the Mission Focused Guidance section.

B. Mission Focused Guidance

The mission sometimes lends itself to using airborne assets, whether IC/ICC, Non-IC/ICC or RPA, to acquire DI for a particular purpose. The DoD and the USAF have mission focused regulations that commanders, operators, intelligence professionals, judge advocates and paralegals must consult, in conjunction with the capability focused rules addressed above, to determine applicable approval authorities, procedures, and other guidance. A brief discussion of the relevant directives, instructions, regulations and policies for the most common airborne DI missions in the U.S. follows.

1. Defense Support to Civil Authorities (DSCA)

A request from civil authorities for DoD assistance, or independent authorization from SecDef or the President of the United States (POTUS), triggers DSCA. 31 DoDD 3025.18, Defense Support to Civil Authorities (DSCA), governs DoD's provision of temporary support to U.S. civilian agencies for "domestic emergencies, law enforcement support, and other domestic activities, or from qualifying entities for special events." 32 The USAF has further implemented DoDD 3025.18 through AFI 10-801, Defense Support to Civil Authorities. 33

The typical approval process for DCSA involves a Request for Forces or Assets from a civilian agency to the DoD Executive Secretary. This request goes up to SecDef, then down to the Joint Staff's Joint Director of Military Support (JDOMS), who sends it to the appropriate Combatant Command as well as to the Services, who then provide the people, equipment or other capabilities needed. For USAF assets or forces, JDOMs will send this request to the Headquarters Air Force, who will likely send it to Air Combat Command (ACC) 34 for the sourcing solution. 35 However, the SecDef has delegated seven specific authorities to the Commanders U.S. Northern Command (CDRUSNORTHCOM) and U.S. Pacific Command (CDRUSPACOM) in the Chairman of the Joint Chiefs of Staff (CJCS) Standing DSCA Execute Order (EXORD). 36 Once SecDef validates the mission from the primary agency in charge of the incident (e.g., Federal Emergency Management Agency or FEMA), USNORTHCOM and USPACOM can provide Incident Awareness and Assessment 37 for:
. situational awareness
. damage assessment
. evacuation monitoring
. Search and Rescue
. Chemical, Biological, Radiological, Nuclear and Enhanced Conventional Weapons (CBRNE) assessment
. hydrographic survey
. dynamic ground coordination.


Of note, the DSCA EXORD permits USNORTHCOM and USPACOM to request traditional IC/ICC resources to conduct DSCA missions. SecDef approval authorizes the use of IC/ICC capabilities for non-intelligence purposes. However, these missions must be conducted in accordance with IO requirements, including DoDD 5240.01-R. 38

SecDef has also delegated approval authority for several DSCA events to the Assistant Secretary of Defense for Homeland Defense and America's Security Affairs (ASD(HD&ASA), with the following exceptions: assistance to respond to CBRNE events and civil disturbances, assistance to law enforcement, responding with assets "with the potential for lethality," and any time USAF equipment will be operated under the command and control of civilian authorities. 39

DSCA normally requires high levels of approval, but when time does not permit the type of coordination discussed above, under "imminently serious conditions," and upon civilian authority request, local commanders may exercise Immediate Response Authority "to save lives, prevent human suffering or mitigate great property damage." 40 Absent higher headquarter direction, the local commander should reassess his or her position at least every 72 hours and terminate the response when the necessity giving rise to it no longer exists. 41 Commanders also have "Emergency Authority" to quell civil disturbances, which will be discussed further below in the section on Military Assistance to Civil Disturbances. 42

The DoD Directive on DSCA does not address particular assets or capabilities, with the exception of RPAs. Thus, in this limited manner, the DSCA regulation is both capability and mission focused. It states:
No DoD unmanned aircraft system (UAS) will be used for DSCA operations, including support to Federal, State, local, and tribal government organizations, unless expressly approved by the Secretary of Defense. Use of armed UAS for DSCA operations is not authorized. 43

Defense support to civilian law enforcement agencies (LEA) and civil search and rescue (SAR) are forms of DSCA. 44 Discussion follows on the additional regulations and policies that apply to each.

2. Support to Law Enforcement Activities (LEA)

DoD support to Law Enforcement Activities (LEA) is limited by law, including the Posse Comitatus Act, and policy, for fear of military encroachment on civil authority and domestic governance. DoDI 3025.21, Defense Support of Civilian Law Enforcement Agencies, provides guidance on the sharing of information collected during military operations, the use of military equipment and facilities, training with LEA, funding and reporting mechanisms for such support. 45 Among other activities, Search and Rescue (SAR), Explosive Ordinance Disposal (EOD), domestic terrorist incident support and Civil Disturbance Operations (CDO) are specifically authorized. 46 The directive also addresses training with LEA in great detail. 47

Restrictions on DoD support to LEA include many prohibitions including interdicting vehicles, searches and seizures, arrest and similar activities (apprehension, stop and frisk), as well as engaging in questioning of potential witnesses, using force or threats to do so except in self-defense of defense of others, collecting evidence, forensic testing and surveillance or pursuit of individuals or vehicles. 48

The LEA directive, like the DSCA directive, addresses not only the support to LEA mission, but also use of specific capabilities for that purpose. While the directive generally applies to all DoD assets and capabilities (non-ICs/ICCs), it specifically requires that LEA requests for DoD IC/ICC assistance be processed pursuant to DoDD 5240.1 and DoD 5240.1-R and subject to SecDef approval. 49 While the LEA directive does not directly address use of RPAs, the DSCA directive does and requires SecDef approval. 50

Full Article: http://www.afjag.af.mil/shared/media/do ... 31-073.pdf

[de officiis]

The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space

By Marc Jonathan Blitz, 63 Am. U. L. Rev. 21 (2013)

Public video surveillance is changing the way police fight crime and terrorism. This was especially clear in the aftermath of the Boston Marathon bombing when law enforcement found images of the two suspects by analyzing surveillance images gathered by numerous public and private cameras. Such after-the-fact video surveillance was equally crucial to identifying the culpritsbehind the 2005 London subway bombing. But the rise of camera surveillance, as well as the emergence of drone-based video monitoring and
GPS-tracking methods, not only provides an important boon for law enforcement, but also raises a challenge for constitutional law: As police gain the ability to technologically monitor individuals’ public movements and activities, does the Fourth Amendment’s protection against “unreasonable searches” place any hurdles in their way?

In the 2012 case, United States v. Jones, five justices, in two separate concurrences, signaled that it does—at least when the monitoring becomes too intense or prolonged. Their suggestion, however, raises two significant problems. First, it provides no principled basis for marking the point at which public surveillance morphs from a means by which police monitor public space into a Fourth Amendment “search.” Under the “mosaic theory” embraced by the D.C. Circuit, such surveillance becomes a search only when it captures enough data points from an individual’s public life to construct a detailed picture (or “mosaic”) of her movements and associations. But how detailed may such a picture be before it is too detailed? Do police engage in a search simply by watching someone continuously, even if they do so without drones, GPS units, or other advanced technology? Second, the concurring opinions do not explain why the Fourth Amendment, if it does cover public surveillance of this kind, does not also cover the information-collecting police do when they simply watch a pedestrian or a driver. As Justice Scalia wrote in Jones, “Th[e] Court has to date not deviated from the understanding that mere visual observation does not constitute a search.” But if police collect the same information from watching a driver as they do from tracking him with GPS technology, why would their watching not also be a search?

This Article proposes a solution to each of these challenges by offering a two-part definition of a Fourth Amendment “search” in a public space. Police engage in a search when they (1) not only observe, but also record, images or sounds of people or events outside police presence; or (2) magnify details on a person or documents or other items the person is carrying and thereby reveal information that would not otherwise be apparent without a pat-down or a stop-and-search of a person’s papers or effects.

This technology-based or design-based definition of what constitutes a “search” avoids the problems that arise when the Fourth Amendment analysis regarding what constitutes a “search” is based on an investigation’s duration or intensity. Under the technology-based or designed-based definition, police engage in a search as soon as they begin recording remote events or magnifying otherwise invisible details, whether they have done so for two minutes or two weeks. Additionally, under this approach, Fourth Amendment constraints only apply to surveillance that goes beyond unadorned visual surveillance. This test is more workable and more in accord with Fourth Amendment logic. Recording is a search because, more than any other element of public surveillance, it allows police to engage in dragnet-style investigation of all activities in a public space. By transforming ephemeral occurrences into permanent records, recording allows government officials to search public lives frame by frame, much like they might search documents file by file. Certain types of magnification could also constitute a search because, just as a telescope focused on a home may be functionally equivalent to a home entry and search, certain types of magnification may be functionally equivalent to a physical search of persons, papers, or effects.

Full Article: http://www.aulawreview.org/pdfs/63/63.1/Blitz.pdf

[de officiis]

The Stored Communications Act: An Old Statute for Modern Times

By Melissa Medina, 63 Am. U. L. Rev. 267 (2013)

Google recently asserted that email “users have no ‘reasonable expectation’ of privacy.” Headlines like this fueled outrage when the advocacy group Consumer Watchdog posted Google’s motion to dismiss a class action lawsuit online. This statement has been called “a stunning admission,” but how surprising is it? In reality, Google’s statement reflects well-established law, which only fairly recently started to receive judicial criticism. Law enforcement agencies can often gain access to email information with little more than a subpoena. This ease of access may surprise many Americans who use email as their primary means of communication. The rapid and exponential growth of the Internet and technology over the past decade has made it easy to communicate with others around the world. However, these advantages have revealed a host of privacy issues.

In the 1980s, manufacturers such as IBM and Apple began marketing more affordable computer systems, which allowed greater access to computer technology. This increased access spurred the creation of novel and now widely used methods of communication. Concerns that the law did not adequately protect the privacy of those communications prompted Congress to enact the Stored Communications Act (SCA) as part of the broader Electronic Communications Privacy Act of 1986 (EPCA). The SCA protects communications in three important ways: (1) it provides a private cause of action against anyone who intentionally “obtains, alters, or prevents authorized access” to certain stored communications; (2) it regulates when network service providers may voluntarily disclose customer communications and records; and (3) it outlines specific rules that govern when state actors may compel disclosure of stored communications from network service providers.

Diverging judicial interpretations regarding the SCA’s applicability to modern technologies, such as Webmail, have created serious concerns as to the statute’s continued viability. Some courts interpret the SCA broadly by applying modern conceptions of new technologies, while others strictly follow the statutory language and history of the Act and assess new innovations within the confines of 1986 technologies. These differing interpretations have created uncertainty regarding the scope of the SCA. In Jennings v. Jennings, for example, the Supreme Court of South Carolina unanimously held that unauthorized access by any person to emails stored on Yahoo!’s server did not create a cause of action under the SCA. The Supreme Court of South Carolina’s issuance of three opinions in Jennings is indicative of the “headaches” courts encounter when applying the SCA to new technologies.

This Note argues that Congress needs to update the SCA to ensure adequate protection of electronic communications. Moreover, it advances that the ultimate outcome of Jennings was correct, but that the case’s different opinions have increased the uncertainty of the SCA’s application. To that extent, this Note proposes crucial legislative reforms and a simple and consistent approach for courts to follow and effectuate Congress’s intent.

Full Article: http://www.aulawreview.org/pdfs/63/63.1/Medina.pdf

[de officiis]

Crossing the Line: Border Searches at Florida’s International Airports

November, 2013, 87 Fla. Bar J. 8

by Jerrold R. Dennis

Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.1

Our country has maintained a traditional policy of balancing legitimate international commerce with the right of the government to protect its citizens from acts of terrorism, illegal immigration, and rampant contraband importation. The chaos that followed the tragedy of September 11 heightened the awareness for more thorough security and inspections at U.S. borders. These more stringent safety measures often result in complex search and seizure issues for the courts to decide.

The Fourth Amendment provides that a search or seizure conducted through state action must be reasonable and that any warrant issued by a magistrate be supported by probable cause. The Supreme Court has defined the Fourth Amendment as creating a presumed warrant requirement on all governmentally conducted searches and seizures, but courts have judicially created certain exceptions to these requirements. Probably the most notable exception to the Fourth Amendment requirements is found in searches and seizures occurring at our international borders. By virtue of the sovereign’s right to protect its citizens by searching persons and property crossing its borders, routine searches have been found to be reasonable simply due to the fact that they occur at the border. While at first blush one does not consider Florida to be a border state, it nonetheless is treated as such by virtue of the fact that it has no less than 14 international airports,2 which are deemed the functional equivalent of the border.
. . .
An Overview of the Fourth Amendment
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The Principles of Border Searches
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Searches Conducted at the Extended Border
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What Constitutes a Search?
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What Constitutes a Seizure?
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Routine Searches
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Nonroutine Searches with Reasonable Suspicion
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The Search of Personal Property
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Prolonged Detentions
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Strip Searches
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Body Cavity Searches
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The Use of X-ray Searches
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Border Searches of Laptops and other Electronic Storage Devices
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Conclusion
Following the catastrophic events of 9/11, the monitoring of our nation’s borders has been stepped up considerably. Border patrol agents are faced with a growing concern for the safety and well-being of international travelers, thousands of whom cross our borders daily. While Florida is not a traditional border state, by virtue of it being the functional equivalent of a border regarding incoming nonstop flights from foreign destinations, search and seizure issues have become the topic of choice in the law enforcement arena. Each traveler and each factual scenario present challenging legal issues for the courts to consider. Even by availing themselves of all of the basic Fourth Amendment rules and a wealth of case law, the courts face challenging decisions in light of the fact that the dynamics of domestic and foreign travel continues to change in the face of international terror.

Full Article: http://www.floridabar.org/DIVCOM/JN/JNJ ... enDocument