4th Amendment

Kavanaugh, Klayman, and the Fourth Amendment

In the few days since President Trump nominated him to be an Associate Justice on the Supreme Court, Judge Brett Kavanaugh has seen his life put under the microscope. It turns out that the U.S Court of Appeals for the D.C Circuit judge really likes baseball, volunteers to help the homeless, and has strong connections to the Republican Party – especially the George W. Bush administration. More consequentially, Kavanaugh is an influential judge with solid conservative credentials. For libertarians, Kavanaugh’s record includes much to applaud, especially when it comes to reining in the power of regulatory authorities. However, at least one of Kavanaugh’s concurrences reveals arguments that should concern those who value civil liberties. Members of the Senate Committee on the Judiciary should press Kavanaugh on these arguments at his upcoming confirmation hearing.

In 2015, Kavanaugh wrote a solo concurrence in the denial of rehearing en banc in Klayman v. Obama (full opinion below), in which the plaintiffs challenged the constitutionality of the National Security Agency’s (NSA) bulk telephony metadata program. According to Kavanaugh, this program was “entirely consistent” with the Fourth Amendment, which protects against unreasonable searches and seizures.

The opening of the concurrence is ordinary enough, with Kavanaugh mentioning that the NSA’s program is consistent with the Third Party Doctrine. According to this doctrine, people don’t have a reasonable expectation of privacy in information they volunteer to third parties, such as phone companies and banks. This allows law enforcement to access details about your communications and your credit card purchases without search warrants. My colleagues have been critical of the Third Party doctrine, filing an amicus brief taking aim at the doctrine in the recently decided Fourth Amendment case Carpenter v. United States

Because the Third Party Doctrine remains binding precedent, Kavanaugh argues, the government’s collection of telephony metadata is not a Fourth Amendment search. Regardless of one’s opinion of the Third Party Doctrine, this is a reasonable interpretation of Supreme Court precedent from an appellate judge.

Yet in the next paragraph the concurrence takes an odd turn. Kavanaugh argues that even if the government’s collection of millions of Americans’ telephony metadata did constitute a search it would nonetheless not run afoul of the Fourth Amendment:

Even if the bulk collection of telephony metadata constitutes a search,[…] the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports. […] The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

This paragraph includes a few points worth unpacking: 1) That the collection of telephony metadata is permitted under the “Special Needs” Doctrine, and 2) The 9/11 Commission Report buttresses the claim that “The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States.”

Constitutional Defects Big Enough to Drive a (Food) Truck Through

Imagine that it’s your first day at a new job. As you endure the tedious onboarding process, an interesting tidbit catches your attention; among the perks of your new position, you will be issued a company car and cell phone. “Sweet!” you exclaim, now more confident than ever of having made the right career move. But your enthusiasm drops precipitously as you learn that GPS devices have been installed on both the car and phone, allowing the company to continuously track your location. And your shock turns to horror when you are informed that the (mandatory) use of these items requires that you consent to the police having unfettered access to the resulting information, thus waiving your Fourth Amendment rights. While commenting on what a huge mistake accepting the position was on your way out the door, HR drops perhaps the biggest bombshell of all: “Sorry you feel that way, but it’s the city’s rule, not ours, and every other company in the field has the exact same rules… so good luck finding another job!”

Incredibly, such a dystopian scenario could become commonplace if the City of Chicago has its way.

Stingray: A New Frontier in Police Surveillance

I’ve written previously on this blog regarding stingray devices: powerful surveillance tools which allow law enforcement agents to spy on the cell phones of unsuspecting Americans, often without judicial or legislative oversight.

For a deeper dive into the subject, I’ve put together a policy analysis detailing the past history, present issues, and future prospects of stingray devices and police surveillance more generally.

From the executive summary:

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.

The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

Baltimore Police Admit Thousands of Stingray Uses

It’s been a bad week for Stingray secrecy.  Following a court-ordered document dump in New York earlier this week, a Baltimore detective yesterday testified in court that he had personally used a Stingray between 600 and 800 times during two years as a member of the Baltimore Police Department’s Advanced Technical Team.  He also testified that the unit has used such devices 4,300 times since 2007.

Stingrays are handheld or vehicle-mounted surveillance devices that operate by mimicking cell towers.  They have the capability to force cell phones within their range to connect with the Stingray and transmit ID information from the phone.  Some models - the technology is constantly being upgraded to keep pace with advancing telecommunications infrastructure - are suspected of being able to intercept content, but the true extent of the capability is a closely-guarded secret. What is increasingly not a secret is that dozens of law enforcement agencies around the country have been using these devices for years to sweep up swaths of cell phone data, much of it from innocent people, with little to no transparency or oversight.

The Baltimore detective refused to produce the device in court, citing an FBI non-disclosure agreement. The FCC, which regulates radio-emitting devices like Stingrays, has delegated to the FBI the authority to set conditions on local use of cell site simulators.  The FBI, in turn, produced an agreement so restrictive that police and prosecutors can be obligated to withdraw evidence or even drop charges rather than disclose the use of the devices to the court.

As more and more information about these devices and their uses by law enforcement trickles out, it’s worth questioning what value exists in these secrecy agreements.  Despite repeated references to “terrorists” and “national security” as a means for maintaining secrecy about Stingray use, the data that has been released detailing the purposes of actual Stingray investigations - such as this breakdown from the Tallahassee Police Department that contains not a single terrorism reference - suggests that Stingrays are used virtually entirely for routine law enforcement investigations.  Meanwhile, the sacrifices being made in the name of defeating terror impose a real cost.

Erie County Forced to Hand Over Stingray Documents

A few weeks ago, a New York judge ruled that the Erie County Sheriff’s Office had inappropriately denied a freedom of information request from the NYCLU regarding the office’s use of Stingray cell phone trackers.  The judge ordered the sheriff to release the documents that had been inappropriately withheld.

Supreme Court Reinforces Jones Conception of 4th Amendment

In a per curiam opinion this week, Grady v. North Carolina, the U.S. Supreme Court reinforced recent 4th Amendment decisions in holding that when the government physically occupies private property for the purpose of obtaining information, it engages in a search under the 4th Amendment.

The State of North Carolina subjects certain repeat offenders to a lifetime of satellite-based monitoring (SBM) after they complete their sentences.  The plaintiff, Torrey Dale Grady, argued that such a program represents a violation of his 4th Amendment rights under recent U.S. Supreme Court opinions, including a 2012 case called United States v. Jones (installing a GPS tracker on a suspect’s car represents a search) and a 2013 case called Florida v. Jardines (using a drug-sniffing dog on a suspect’s porch represents a search).

The Supreme Court agreed with Grady that such monitoring constitutes a search. In light of these decisions, it follows that a state also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.

In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the State’s monitoring program is civil in nature. See Jones, ___ N. C. App., at ___, 750 S. E. 2d, at 886 (“the instant case … involves a civil SBM proceeding”). “It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. 

The court also rejected North Carolina’s somewhat strange argument that its monitoring program is not meant to collect information:

The 4th Amendment Is Another Victim of the Drug War

Over at the Washington Post, Radley Balko details a recent Fourth Circuit ruling overturning an award for a father whose son was shot and killed in a military-style SWAT raid after marijuana residue was found in an outside garbage bag. A jury awarded the father $250,000 after it was shown that the police failed to comply with their obligation to knock and announce their presence before barging in and that they lied about several aspects of the raid.

Without repeating the entirety of Balko’s excellent analysis, a particularly troubling aspect of the ruling is the nonchalant way in which the Fourth Circuit judges, even in dissent, treat the militarized raid over marijuana residue and dispense with any suggestion that such escalated violence is constitutionally questionable:

Let’s first start by noting one very important issue that is not in dispute—whether the massive amount of force the police brought to bear in this case was reasonable under the Fourth Amendment. As far as the federal courts are concerned, it was. As Judge Pamela Harris points out in her dissent, “The point here, to be clear, is not to take issue with the Officers’ decision to execute a search warrant based on marijuana traces by way of a military-style nighttime raid.”

Harris is correct. The courts long ago decided that dangerous, punishing SWAT-style raids to search for pot—even when there is no evidence of distribution—are reasonable under the Fourth Amendment. A lawsuit arguing otherwise will be promptly tossed.

Balko then points out that such behavior is precisely what the Fourth Amendment was designed to prevent:

Stingrays and Police Secrecy

The New York Times this week published a troubling article detailing the secrecy surrounding police use of Stingray cellular site simulators.  Essentially, these devices (which can be mounted on vehicles or carried by hand) mimic the signals of a cell phone tower in order to force cell phones in a given area to connect to the device.  Both data on the phone (including numbers, texts, emails, and any other data stored on the phone) and the phone’s physical location can then be accessed and recorded by police.

Additionally concerning is the extensive use of non-disclosure agreements by the Harris Corporation, which sells the devices, to prevent the public (and in some cases even judges, defense attorneys, and prosecutors) from finding out how these devices are being used or even whether a given department owns any.   The preference for secrecy is so powerful that prosecutors have dropped serious criminal charges simply to avoid having the police use of Stingrays subjected to examination by defense attorneys or judges.

According to the Times,

The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.

The stated reason for the secrecy is the common refrain that terrorists will circumvent the technology if they know what law enforcement is up to.  However, a recent ACLU report was unable to uncover a single instance of these devices being used to bring domestic terrorists to justice in any jurisdiction surveyed. 

The ACLU report estimates that Stingrays are in wide and rapidly increasing use in law enforcement agencies across America.  However, there appears to be very little oversight structure for police departments, legislatures, or courts governing the use of these devices. In some instances, it seems that courts have even unwittingly been authorizing their use without the judge’s full understanding.  For instance, a sampling of applications for court orders from Florida law enforcement agencies informs the judge that the order is for cell phone records, but doesn’t mention anything about how they’re to be obtained.  Police claim such vague orders authorize Stingray deployment, but some judges have been less than enthused upon finding out.

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