Tag: Fourth Amendment

It’s “Declaration of Internet Freedom” Day!

… or at least I should have said so back on March 4th.

That was the anniversary of the day that Congress proposed to append a Bill of Rights to our Constitution. With a lovely preamble that went a little somethin’ like this:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Bill of Rights contains gems like “Congress shall make no law … abridging the freedom of speech, or of the press,” (Amendment 1) and, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (Amendment 4).

I think this original Declaration of Internet Freedom is the bee’s knees. Yes, it’s taking some work to apply its strictures to the modern communications environment, but that’s a much more contained problem than starting over.

Starting over. That’s what a collection of really lovely groups–some highly pro-regulation, others handmaidens of government growth–are doing. They’ve come up with a “Declaration of Internet Freedom” whose principal virtue is a pretty cool graphic. The actual “principles” in it are so weasel-y that I wouldn’t trust ‘em as far as I could throw ‘em.

When you’re done pondering how one could “throw” a principle, consider an alternative to the “mainstream” declaration put out by our friends at TechFreedom. Their Declaration of Internet Freedom has a bunch of principles like “Humility” and “Rule of Law.”

Their thing on “Free Expression” cites the First Amendment. Remember that one? That’s the “Congress shall make no law” one. So that’s pretty good.

But I’m really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We’ve got that. It’s a neato collection of negative rights, preventing the government from interfering with society’s development, whether that development occurs online or off.

So happy Declaration of Internet Freedom day! I’ll be celebrating the real one.

In case you’ve gotten confused in all the jostling around, the real one is the Bill of Rights.

Secret Cell Phone Tracking in the Sunshine State

The South Florida Sun-Sentinel provides us with one more data point showing the growing frequency with which police are using cell phones as tracking devices—a practice whose surprising prevalence the ACLU shone light on in April. In fiscal year 2011-2012, the first year Florida kept tabs on cell location tracking, state authorities made 171 location tracking requests—and apparently hope to expand the program.

The article alludes to a couple of specific cases in which location tracking was employed—to find a murder suspect and a girl who was thought to have been kidnapped—both of which are perfectly legitimate uses of the technology in principle. In general, if there’s enough evidence to issue an arrest warrant, the same evidence should support a warrant for tracking authority when the suspect’s location isn’t immediately known. In cases where police have a good faith belief that there’s a serious emergency—such as a suspected kidnapping—it’s even reasonable to allow police to seek location information without a court order, as is standard practice with most other kinds of electronic records requests. But the Sun-Sentinel report is also unsettlingly vague about the precise legal standard followed in non-emergency cases. According to a law enforcement official quoted in the story, the Florida Department of Law Enforcement’s Electronic Surveillance “always seeks judicial approval to trail someone with GPS,” while the written policy only “instructs agents to show probable cause for criminal activity to the department’s legal counsel to see if a court order is necessary,” implying that it sometimes is not necessary.

The term “court order,” however, is quite broad: the word that’s conspicuously absent from these definitions is “warrant”—an order meeting the Fourth Amendment’s standards. In the past, the Justice Department has argued that many kinds of location tracking may be conducted using other kinds of authority, such as so-called “pen register” and “2403(d)” orders. Unlike full-fledged search warrants, which require a showing of “probable cause” to believe the suspect has committed a crime, these lesser authorities require only “reasonable grounds” to believe the information sought would be “relevant” to some legitimate investigation. That is, needless to say, a far lower hurdle to meet.

Police refusal to discuss the program with reporters is also part of a larger pattern of secrecy surrounding location tracking. As Magistrate Judge Stephen Smith observes in a recent and important paper, such orders are often sealed indefinitely—which in practice means “forever.” Unlike the targets of ordinary wiretaps, who must eventually be informed about the surveillance after the fact, citizens who’ve been lojacked may never learn that the authorities were mapping their every move. Such secrecy may be useful to police—but it also means that improper use of an intrusive power is far less likely to ever come to light.

Location tracking can be a valuable tool for an array of legitimate law enforcement purposes—but especially in light of the Supreme Court’s unanimous decision in United States v. Jones, it has to be governed by clear, uniform standards that satisfy the demands of the Fourth Amendment.

David Davis Is Right

British Conservative Party member and former shadow home secretary David Davis says that data retention requirements being debated in the U.K. are “incredibly intrusive” and would only “catch the innocent and incompetent.” He’s right.

The United States was formed after a Revolutionary War against Britain so that we could live under a government more protective of liberty. The Fourth Amendment’s requirement of particularity with respect to warrants prevents our government from issuing blanket requirements that information about all of our communications be retained in case it’s needed for law enforcement.

At least we must hope so. Because some in our Congress seem to have little qualm about reversing the Revolutionary War’s results.

A ‘Privacy Bill of Rights’: Second Verse, Same as the First

The White House announces a “privacy bill of rights” today. We went over this a year ago, when Senators Kerry (D-MA) and McCain (R-AZ) introduced their “privacy bill of rights.”

The post is called “The ‘Privacy Bill of Rights’ Is in the Bill of Rights,” and its admonitions apply equally well today:

It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.

Senators Kerry and McCain [and now the White House] should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?

The Second-Day Story on U.S. v. Jones

Does a more careful reading of the Supreme Court’s decision in U.S. v. Jones turn up a lurking victory for the government?

Modern media moves so fast that the second-day story happens in the afternoon of the first. The Supreme Court ruled unanimously Monday morning that government agents conduct a Fourth Amendment search when they place a GPS device on a private vehicle and use it to monitor a suspect’s whereabouts for weeks at a time. Monday afternoon, a couple of commentators suggested that the case is less a win than many thought because it didn’t explicitly rule that a warrant is required to attach a GPS device to a vehicle.

Writing on the Volokh Conspiracy blog, George Washington University law professor Orin Kerr noted “What Jones Does Not Hold.”

The Court declined to reach when the installation of the device is reasonable or unreasonable. … So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

And over on Scotusblog, Tom Goldstein found that “The Government Fared Much Better Than Everyone Realizes”:

[D]oes the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

So there is a constitutional search when the government attaches a GPS device to a vehicle, but the Court conspicuously declined to say that such a search requires a warrant. Do we have an “a-ha” moment?

When the Supreme Court granted certiorari in the case, it took the unusual step of adding to the questions it wanted addressed. In addition to “[w]hether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment,” the Court wanted to know “whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.” These are both compound questions, but the dimension added by the second is the Fourth Amendment meaning of attaching a device to a vehicle. The case was about attaching a device to a vehicle, and if the Court didn’t walk through every clause in each of the questions presented, that’s why.

On that central question in the case, the government argued the following: “Attaching the GPS tracking device to respondent’s vehicle was not a search or seizure under the Fourth Amendment.” The government lost, full stop.

Now, it’s true that the Court’s majority opinion didn’t explictly find that the “search” that occurs when attaching and using a GPS device requires a warrant, but look at its characterization of the opinion it affirmed: “The United States Court of Appeals for the District of Columbia Circuit reversed [Jones’s] conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment.”

The Court did decline to consider the argument that the government might be able to attach a device based on reasonable suspicion or probable cause—that argument was “forfeited” by the government’s failure to raise it in the lower courts—but if the Supreme Court were limiting its holding to the attachment-as-search issue, it would have remanded the case back to the lower courts for further proceedings consistent with the opinion. It did not, and the sensible inference to draw from that is that the general rule applies: a warrant is required in the absence of one of the customary exceptions. Failing to make that explicit was not “opening a door” to a latent government victory. U.S. v. Jones was a unanimous decision rejecting the government’s warrantless use of outré technology to defeat the natural privacy protections provided by law and physics.

At least one serious lawyer I know has raised the point that I address here, and it is a real one, but some in the commentariat are a little too showy with their analysis and far too willing to go looking for a government victory in what is nothing other than a government defeat.

U.S. v. Jones: A Big Privacy Win

The Supreme Court has delivered a big win for privacy in U.S. v. Jones. That’s the case in which government agents placed a GPS device on a car and used it to track a person round-the-clock for four weeks. The question before the Court was whether the government may do this in the absence of a valid warrant. All nine justices say No.

That’s big, important news. The Supreme Court will not allow developments in technology to outstrip constitutional protections the way it did in Olmstead.

Olmstead v. United States was a 1928 decision in which the Court held that there was no Fourth Amendment search or seizure involved in wiretapping because law enforcement made “no entry of the houses or offices of the defendants.” It took 39 years for the Court to revisit that restrictive, property-based ruling and find that Fourth Amendment interests exist outside of buildings. “[T]he Fourth Amendment protects people, not places” went the famous line from Katz v. United States (1967), which has been the lodestar ever since.

For its good outcome, though, Katz has not served the Fourth Amendment and privacy very well. The Cato Institute’s brief argued to the Court that the doctrine arising from Katz “is weak as a rule for deciding cases.” As developed since 1967, “the ‘reasonable expectation of privacy’ test reverses the inquiry required by the Fourth Amendment and biases Fourth Amendment doctrine against privacy.”

Without rejecting Katz and reasonable expectations, the Jones majority returned to property rights as a basis for Fourth Amendment protection. “The Government physically occupied private property for the purpose of obtaining information” when it attached a GPS device to a private vehicle and used it to gather information. This was a search that the government could not conduct without a valid warrant.

The property rationale for deciding the case had the support of five justices, led by Justice Scalia. The other four justices would have used “reasonable expectations” to decide the same way, so they concurred in the judgement but not the decision. They found many flaws in the use of property and “18th-century tort law” to decide the case.

Justice Sotomayor was explicit in supporting both rationales for protecting privacy. With Justice Scalia, she argued, “When the Government physically invades personal property to gather information, a search occurs.” This language—more clear, and using the legal term of art “personal property,” which Justica Scalia did not—would seem to encompass objects like cell phones, the crucial tool we use today to collect, maintain, and transport our digital effects. Justice Sotomayor emphasized in her separate concurrence that the majority did not reject Katz and “reasonable expectations” in using property as the grounds for this decision.

Justice Sotomayor also deserves special notice for mentioning the pernicious third-party doctrine. “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” The third-party doctrine cuts against our Fourth Amendment interests in information we share with ISPs, email service providers, financial services providers, and so on. Reconsidering it is very necessary.

Justice Alito’s concurrence is no ringing endorsement of the “reasonable expectation of privacy” test. But he and the justices joining him see many problems with applying Justice Scalia’s property rationale as they interpreted it.

Along with the Scalia-authored Kyllo decision of 2001, Jones is a break from precedent. It may seem like a return to the past, but it is also a return to a foundation on which privacy can be more secure.

More commentary here in the coming days and weeks will explore the case’s meaning more fully. Hopefully, more Supreme Court cases in coming years and decades will clarify and improve Fourth Amendment doctrine.

“You could use it at a specific event. You could use it at a shooting-prone location…”

That’s NYPD Commissioner Ray Kelly touting a new technology called “terahertz imaging detection” to a local news outlet.

Terahertz radiation is electromagnetic waves at the high end of the infrared band, just below the microwave band. The waves can penetrate a wide variety of non-conducting materials, such as clothing, paper, cardboard, wood, masonry, plastic, and ceramics, but they can’t penetrate metal or water. Thus, directing terahertz radiation at a person and capturing the waves that bounce off them can reveal what is under their clothes without the discomfort and danger of going “hands-on” in a search for weapons. Many materials have unique spectral “fingerprints” in the terahertz range, so terahertz imaging can be tuned to reveal only certain materials. (In case you’re wondering, I got this information off the top of my head…)

Will the machines be tuned to display only particular materials? Or will they display images of breasts, buttocks, and crotches? The TSA’s “strip-search machines” got the moniker they have because they did the latter—until the agency tardily re-configured them.

Then there’s the flip-side of not going “hands-on.” Terahertz imaging detection doesn’t natively reveal to the person being searched that law enforcement has picked him or her out for scrutiny. A pat-down certainly lets the individual know he or she is being searched, positioning one to observe and challenge one’s treatment as a suspect. Terahertz imaging lacks this natural—if insufficient—check on abuse.

So terahertz imaging is not just a “hi-tech pat-down.” Its potential takes what would be a pat-down and makes it into a secret, but intimate, visual examination—a surreptitious strip-search. Pat-downs and secret strip-searches are very different things, and it is not necessarily reasonable, where a pat-down might be called for, to use terahertz imaging.

And that brings us to the fundamental problem with Commissioner Kelly’s proffer to use this technology at a “specific event” or at a “shooting-prone location.” These contexts do not create the individualized suspicion that Fourth Amendment law demands when government agents are going to examine intimate details of a person’s body and concealed possessions.

It is certainly possible to devise a terahertz imaging device and a set of use protocols that are constitutional and appropriate for routine, domestic law enforcement, but Commissioner Kelly hasn’t thought of one, and I can’t either.

Consider the dollar costs and potential health effects of terahertz imaging detection, it might just be that the pat-downs pass muster far better than the high-tech gadgetry.