Sometimes protecting our Fourth Amendment rights hurts a little bit, but the North Dakota Supreme Court did just that with a ruling this week.Not long ago the Ward County Narcotics Task Force had evidence that suggested a man had received a shipment of controlled substances and had been dealing drugs. An officer tracked him down, saw the man leaving a local bar with two women, and tailed his car. The man had been foolish enough to have three registration tabs in different places on his license plate, which is illegal, and he obliged the police further by making an illegal left turn, giving them a reason to pull him over for a traffic violation.
The officer brought in the drug-sniffing dog to circle his car and, when the dog alerted, the cops had probable cause to search the man's vehicle. The search turned up a plastic bag with marijuana residue. The man kept looking to his right and making "furtive movements," in the officer's judgement. The officer performed a pat-down, felt something soft in the man's pocket, and performed a more invasive search, which turned up four bundles of cocaine, and the man was arrested and charged.
Saturday, August 20, 2011
From the Minot Daily News:
Thursday, August 18, 2011
This article from Troy Media concerns our friends to the north:
A recent lawsuit against a Saskatchewan school division threatens to undermine even more the ability of schools to establish a safe and orderly learning environment. The case directly pits the privacy rights of students against the right of administrators to maintain order in schools.
The circumstances behind this lawsuit started out with a routine matter of discipline. A 12-year-old student was caught using his cell phone in a Prince Albert school where such devices are banned. The teacher confiscated the student’s phone and turned it into the office.
However, things soon became more complicated when the vice-principal discovered text messages on the phone about a recently stolen vehicle. Because of the illegal activity involved, the vice-principal contacted and handed the matter over to police. Upon meeting with the student, the police told him to send a text asking about the location of the vehicle. The police used the response to track down the stolen vehicle and then released the student.
The Washington Supreme Court issued a landmark decision Thursday concerning an individual’s right to privacy and the public's right to obtain government records through public records requests.
Specifically, the court ruled that two Washington cities, Puyallup and Mercer Island, must disclose two investigative reports — a criminal investigation and an internal investigation — of a police officer involved in alleged sexual misconduct.
The case was initiated after a woman, Kim Koeing, alleged that Bainbridge Island police officer Steven Cain sexually assaulted her during a traffic stop in September 2007.
From the Florida Independent:
A new bill intended to crack down on child pornography and co-sponsored by Reps. Debbie Wasserman Schultz, D-Pembroke Pines, and Ted Deutch, D-Boca Raton, is drawing criticism from Internet privacy advocates.
Wasserman Schultz, chairwoman of the Democratic National Committee, and Deutch co-sponsored the Protecting Children From Internet Pornographers Act of 2011, approved by the House Judiciary Committee on July 28.
The bill would amend U.S. code covering the obscene representation of children and financial transactions that involve child pornography, as well as penalties for child exploitation offenses. It also calls for Internet providers to ”retain for a period of at least 18 months the temporarily assigned network addresses the service assigns to each account.
From the SierraSun.com:
We have all been through airport security. With my knee replacement I get “wanded” every time with the full-on pat-down search. Getting to know the security guys up close and personal.
What if the Transportation Security Administration (TSA) agents, while looking for weapons or explosives, discover pot or child pornography or some other contraband? Can you be arrested? In other countries you would be arrested on the spot, but in the U.S. we have the Fourth Amendment. Simon McCarty knows.
Monday, August 15, 2011
A recent case provides some guidance about when schools can monitor email accounts they issue to students. In Reichert v. Elizabethtown College, 2011 WL 3438318 (E.D.Pa. August 5, 2011), a troubled student (Christopher Reichert) had a heated exchange with the chairman of the education department, Dr. Carroll Tyminski. Afterwards, Tyminski arranged for Reichert's email account to be monitored.
Thursday, August 11, 2011
Judge Actually Recognizes The 4th Amendment: Says Police Can't Get Location Info From Telcos To Arrest You
With all the reports of law enforcement collecting tons of location info from telcos without a warrant, as well as a bunch of court rulings that seem to chip away at what's left of the 4th Amendment, it's somewhat surprising to see a magistrate judge say that police cannot use a warrant to find out your location from a mobile operator, for the purpose of arresting you.
From The Atlantic:
If you're walking down the street and a police officer wants to swab your cheek for a DNA sample, you can refuse. But if you're convicted of a felony, you can't. At what point in the criminal process do you lose that right?
In California, until last week, the answer was the moment you were arrested for a felony. But a California state court has struck down the state statute that allowed such DNA collection, saying the measure 'unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.'
The decision comes at a crucial time in the legal battle over DNA evidence: Last summer, a three-judge panel on the federal Ninth Circuit heard arguments about California's law and has yet to issue its opinion. This fall, the circuit will sit en banc -- that means all of the judges not just three of them -- to decide whether a very similar federal law is constitutional. Another circuit court has already decided that it is. If the two circuits disagree (or even if they don't), the issue could come before the Supreme Court soon.
From the WSJ.com:
Laws allowing DNA samples to be taken from people who are arrested—even those who haven't been charged—are sparking a passionate debate in the courts, pitting privacy concerns against crime fighting, and setting the stage for what could be a high-profile battle in the U.S. Supreme Court.
Cheek swabs or blood samples from those arrested for felonies offer law enforcement officials unique identifying tags, much like fingerprints or bar codes on products. These tags are recorded in state and national databases and can be used later to match samples from the scenes of crimes that haven't been solved.
The practice of taking fingerprints of suspects upon arrest and storing them has been used for decades and has yet to face a serious constitutional challenge, according to David Kaye, a law professor at Penn State University and an expert on DNA evidence. And nearly every state in the union allows for DNA samples to be taken from at least some convicted felons.
From the Richmond Times-Dispatch:
Authorities involved in the arrest of a protester who removed his shirt and pants at a security checkpoint at Richmond International Airport were doing their jobs and acted appropriately, a government attorney argued Wednesday in Richmond federal court.
Carlotta P. Wells, an attorney for the U.S. Department of Justice, argued in favor of a motion to dismiss Aaron B. Tobey's lawsuit, which claims his constitutional rights were violated. Wells said Tobey had made his point by removing his shirt to display words from the Fourth Amendment written on his torso but went too far when he disobeyed a command to pass through a security scanner.
But Anand Agneshwar, an attorney representing Tobey in his lawsuit against airport and federal officials, said the 21-year-old Charlottesville man obeyed the commands of authorities. Agneshwar said it was the authorities who went too far by detaining Tobey for 90 minutes or longer with his hands cuffed behind his back.
Wednesday, August 10, 2011
From the Huffington Post:
The NYPD has formed a new social media unit, The New York Daily News reports, to catch criminals who use Facebook and Twitter to announce law-breaking plans or to brag about their latest crime.
In June, an overcrowded house party in East New York, Brooklyn that was advertised on Facebook as 'Freaky Friday' ended in a shooting that left one man dead and seven injured.
After that incident Police Commissioner Ray Kelly told reporters 'We look at social networking. We’re very much focused on weekend parties, the type of parties that happened last weekend, and we visit them ahead of time. But not every one of these parties happen at a place we can readily identify... Our gang division, our borough personnel look at party advertisements. A lot of these things are at peoples’ apartments.'
From The Chronicle of Higher Education:
When the government gathers or analyzes personal information, many people say they're not worried. 'I've got nothing to hide,' they declare. 'Only if you're doing something wrong should you worry, and then you don't deserve to keep it private.'The nothing-to-hide argument pervades discussions about privacy. The data-security expert Bruce Schneier calls it the "most common retort against privacy advocates." The legal scholar Geoffrey Stone refers to it as an "all-too-common refrain." In its most compelling form, it is an argument that the privacy interest is generally minimal, thus making the contest with security concerns a foreordained victory for security.The nothing-to-hide argument is everywhere. In Britain, for example, the government has installed millions of public-surveillance cameras in cities and towns, which are watched by officials via closed-circuit television. In a campaign slogan for the program, the government declares: "If you've got nothing to hide, you've got nothing to fear." Variations of nothing-to-hide arguments frequently appear in blogs, letters to the editor, television news interviews, and other forums. One blogger in the United States, in reference to profiling people for national-security purposes, declares: "I don't mind people wanting to find out things about me, I've got nothing to hide! Which is why I support [the government's] efforts to find terrorists by monitoring our phone calls!"
Tuesday, August 9, 2011
Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant
From The Volokh Conspiracy:
Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.
Political activist Charlie Klein hands out copies of the United States Constitution everyday.
'We've brought 1,500 and given out 1,000,' he says.
He's concerned the State of Florida is violating the rights of its citizens, specifically the Fourth Amendment to the United States Constitution, when selling information collected through driver's license applications. 'We shall be secure in our papers and in our houses,' he adds.
The Fourth Amendment pertains to searches and seizures and reads, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
A Department of Highway Safety and Motor Vehicles spokesperson says the state is selling public records, not private information. Those records include one's name, date of birth and vehicle registration information.
When is a search not a search?
Or, more pointedly: When are electronic or other forms of surveillance of an individual considered a search under the Fourth Amendment -- thus requiring a valid warrant to conduct such surveillance in a manner that protects the individual from 'unlawful search and seizure'?
How the U.S. Supreme Court answers that question, in a case on its docket for the term starting in October, will have far-reaching implications for the power of government and for the privacy of individuals, according to lawyers and privacy rights advocates.
If the Court holds that warrants are not required for this type of surveillance, it could mean 'the technological death of the Fourth Amendment,” warns Arkansas-based attorney John Wesley Hall, a leading Fourth Amendment expert who also writes a blog and runs a website.
Monday, August 8, 2011
From CBS Denver:
The Transportation Security Administration has apologized to an Aurora woman after taking her insulin before she boarded a flight.
The incident happened at Denver International Airport on Thursday. The woman, who is six months pregnant, was getting ready to board a flight to Phoenix. She said she had traveled with her insulin before and never had a problem.
“Why is it that she was treated with such disrespect? Why is it that she was treated as if she did something wrong?” said the woman’s husband, Aaron Nieman.
Sunday, August 7, 2011
From the Law of Data Security & Investigations blog:
Social media like Yfrog, Flickr, Twitter, Instapaper, Foursquare and innumerable others broadcast an astonishing trove of publicly-accessible geolocation data about users.
This data can be aggregated so an observer can track people who are, for example, using mobile devices to tweet, “check-in” and publish photo albums of their minute-to-minute lives. Some mobile apps broadcast geolocation data constantly, automatically. A program aptly named “Creepy” demonstrates how to aggregate geolocation data from multiple public sources. It can plot a social media enthusiast’s up-to-the minute movement on a Google map!
Friday, August 5, 2011
This summer, one of the hottest issues in technology is online anonymity. Specifically, do users have a right to hide their identity behind pseudonyms, or should they be required to use a real name? The answer is especially important to free and open source software supporters – the Linux community – for whom the rights of users are central issues.
The issues that surround anonymity are as old as the Internet. In fact, in the early 1990s, nicknames were part of the fun of being online -- an attitude that persists today in IRC and Instant Messaging, as well as on some sites and mailing lists.
However, at least two recent events have revived the old issues. To start with, after lengthy debate, the House Judiciary Committee recently approved bill H.R. 1981, which requires Internet service providers to keep a record of their customer's activities for twelve months.
From United Liberty:
The book 1984 is probably the most pan-partisan book ever. Regardless of your political ideology, the book scares the pants off of you, at least to some extent. If you’re like 99.9% of the population, you blame the another side for taking us closer to the point that Big Brother is reality. Laws that extent surveillance powers are usually the most vehemently debated because of that fear of 1984′s world. Only now, it seems the government’s skipping the new laws and just trying to change the interpretation of current law for the same effect. At least, that’s according to a couple of senators who would, at least in theory, have a clue about what’s going on.
A California law that mandates DNA samples be taken from felony arrestees is unconstitutional, a state appeal court ruled Thursday.
'The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to diminish the privacy guaranteed by the Fourth Amendment,' wrote First District Justice J. Anthony Kline.
California voters amended the state's DNA Act in 2004. Among other things, the change required law enforcement officials — starting in January 2009 — to take DNA samples from any adult arrested for or charged with any felony.
Thursday, August 4, 2011
From Al Jazeera English:
We're fast approaching a time when law enforcement will no longer need to ask you for your identification - your physical self, and the biometric data therein, are all that will be required to identify you.
A gadget attached to a mobile phone can photograph and plot key points and features on your face (breaking the numbers down into biometric data), scan your iris and take your fingerprints on the spot.
This gizmo doesn't exist in a futuristic world - it's already been prototyped and tested. By autumn, the Mobile Offender Recognition and Information System (MORIS), which will allow 40 law enforcement agencies across the US to carry out such biometric diagnostics, will be rolled out. So far, the 1,000 units on order - at $3,000 and 12.5 oz per device - will be going to sheriff and police departments.
From Censorship in America:
The forced collection of DNA samples from arrestees without search warrants violates their Fourth Amendment right to privacy, the Electronic Frontier Foundation (EFF) told a federal appeals court in an amicus brief filed Monday.
A federal law mandates DNA collection as a condition for bail for people who have been arrested for felonies. The FBI receives the DNA samples, conducts an analysis, and places a profile into CODIS, a national database. Those who are not eventually convicted of a crime must make a request if they want their information removed from the FBI’s system, while the data collected without cause from other individuals remains permanently. In its amicus brief filed with the 9th U.S. Circuit Court of Appeals, EFF argues that this collection and storage is unconstitutional, violating the Fourth Amendment prohibition on baseless search and seizure of private information.
“DNA reveals an extraordinary amount of private information about you—your family background, your current health, your future propensity for disease, and possibly even your behavioral tendencies,” said EFF Staff Attorney Hanni Fakhoury. “This data is bound to get even more sensitive as technology advances and we learn more about DNA.”
From the Bangor Daily News:
The Maine Supreme Judicial Court on Tuesday unanimously ruled that a police officer may not charge a driver with a crime if the person initially was stopped solely because the officer was seeking information.
The court vacated the drunken driving conviction in Hancock County Superior Court of Ronald A. LaPlante, 53, of Bangor. He was arrested after a Maine State Police trooper stopped him to ask whether he had been passed by a suspected speeder.
Justices heard oral arguments in the case in June when the Maine Supreme Judicial Court convened at the Penobscot Judicial Center in Bangor.
Forty law enforcement agencies in the United States will, by this fall, employ the use of biometric diagnostic equipment to better identify people they come in contact with.
One thousand units of the $3,000 device, officially called the “Mobile Offender Recognition and Information System,” or MORIS, are already on order. But a new report by Al-Jazeera English raises questions about the legality of such a system.
First, the facts: inky fingerprinting and polaroid photos are policing techniques of the past. The future involves the use of biometric indicators — unique physical aspects, such as fingerprints, eye scans and other can’t-easily-be-replicated traits — to properly identify suspects.
Back in the 1990s, in order to track a cell phone you would have to triangulate the signal to its source -- an imprecise science that would merely put you 'in the ballpark' of the caller. That all changed when GPS chips were added to today's smartphones.
The American Civil Liberties Union on Thursday announced [press release] a 'massive coordinated information-seeking campaign', probing police use of location data in their investigations. In total 379 requests for information were filed under state freedom of information laws by 34 local chapters across the country.
Police tracking is something most Americans never think might happen.
GPS devices are typically a highly appreciated addition to cell phones, as they allow precise location-aware maps, turn-by-turn driving directions, and other 'location aware' services. However, they are also used by companies like Google Inc. (GOOG) and Apple, Inc. (AAPL) to target advertisements at users.
Monday, August 1, 2011
From the NYPOST.com:
If Congress had to name laws honestly, it would be called the 'Forcing Your Internet Provider to Spy On You Just In Case You're a Criminal Act of 2011' -- a costly, invasive mandate that even the co-author of the Patriot Act, Rep. James Sensenbrenner (R-Wisc.), says 'runs roughshod over the rights of people who use the Internet.'
But because it's disguised as the 'Protecting Children from Internet Pornographers Act,' the House Judiciary Committee approved it last week by a wide margin -- even though it's got little to do with child porn and won't do much to protect kids.The centerpiece of this ill-conceived law is a sweeping requirement that commercial Internet providers retain a one-year log of all the temporary Internet Protocol addresses they assign to their users, along with customer-identification information. The Justice Department says this will help track down child-porn peddlers by linking online activity and real-world identities. But the government would be able to access that sensitive data for all kinds of investigations, most of which would have nothing to do with child porn.