Television journalist Sharyl Attkisson and her family sued former deputy attorney general Rod Rosenstein for illegally spying on them in violation of the Fourth Amendment and federal law during the Obama administration. A federal court dismissed the lawsuit earlier this week by finding that Rosenstein is entitled to qualified immunity.
The controversy has taken numerous paths through the legal system since the Attkissons claimed they discovered that the government had hacked into their computers and cellphones in 2014—first filing a lawsuit against former U.S. Attorney General Eric Holder, former U.S. Postmaster General Patrick Donahoe, and numerous “John Doe” agents with the U.S. Department of Justice (DOJ) based on alleged violations of the First and Fourth Amendments.
When the Supreme Court ruled in 2018 that law enforcement agencies need warrants before they can request geolocation data from cell phone companies, civil liberties advocates touted the judgment as a major win for privacy.
But since then, government agencies have devised a new surveillance method: instead of getting warrants to force companies to provide data, they simply purchase the information from brokers. Call it entrepreneurial innovation in the market for tyranny.
The scope of this activity has been slowly revealed over the last year, beginning with a February 2020 Wall Street Journal article, which reported that the Department of Homeland Security (DHS) has “bought access to a commercial database that maps the movements of millions of cellphones in American and is using it for immigration and border enforcement.” Later reports revealed that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) purchase similar data.
Had the world not essentially collapsed about a month later, this might have been big news. Alas, government’s data purchases have gone largely unpublicized in the midst of pandemics, riots, elections, and so on.
WITHIN HOURS OF the storming of the Capitol on January 6, the FBI began securing thousands of phone and electronic records connected to people at the scene of the rioting — including some related to members of Congress, raising potentially thorny legal questions.
Using special emergency powers and other measures, the FBI has collected reams of private cellphone data and communications that go beyond the videos that rioters shared widely on social media, according to two sources with knowledge of the collection effort.
In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene. Investigators have also relied on data “dumps” from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.
Last week, the Free Thought Project reported on HR 127, the most tyrannical gun bill ever proposed. The bill would target the poor by forcing citizens to pay $800 per year to possess firearms that they are required to register. It also bans multiple legal guns and ammo types, turning tens of millions of Americans into felons over night. While this bill is, without a doubt, the worst gun bill in history, it didn’t lay out any guidelines for violating a citizen’s Fourth Amendment right. Next month, however, the Supreme Court will be considering exactly that — can cops enter a home to seize guns without a warrant?
That escalated quickly.
In March, the Supreme Court will hear the case of Caniglia v. Strom, which asks the question of whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.
It’s an uncontroversial position that EFF has long fought for: Internet users expect their private online activities to stay that way. That’s why law enforcement should have to get a search warrant before getting records of people’s Internet activities.
But in a disappointing decision earlier this month, the Arizona Supreme Court rejected a warrant requirement for services to disclose Internet users’ activities and other information to law enforcement, a setback for people’s privacy online.
In a 4-3 opinion, the Arizona high court ruled in State v. Mixton that people do not have a reasonable expectation of privacy in information held by online services that record their online activities, such as IP address logs. According to the Court, that information is not protected by either the federal Constitution’s Fourth Amendment or the state’s constitution, because people disclose that information to third-party online services whenever they use them, a legal principle known as the third-party doctrine.
As the following case illustrates, this doctrine is used to excuse the most heinous of behavior, even when if violates completely innocent women in utterly rapacious ways.
Angela Calloway has never been suspected of a crime, never arrested, and has never been to jail. She is, according to a lawsuit filed on her behalf, “completely innocent.” She does, however, know someone behind bars.
When Calloway went to visit this person behind bars, she was subject to an utterly horrifying experience at the hands of prison guards. She was forced to strip down and remove her tampon from her vagina which was then inspected by officers before being thrown away.
Naturally, Calloway felt that her rights were violated — namely her 4th Amendment rights to be free from unreasonable search and seizure — so she filed a lawsuit against the federal prison in Virginia where her violation took place.
This week, however, the U.S. Court of Appeals for the Fourth Circuit justified the search, ruling that forcing a completely innocent woman to strip down and pull out her tampon in front of police to inspect it — is A-Okay — even forcing her to squat, cough, and spread her butt cheeks.
The Rutherford Institute has issued a precautionary “opt out” letter as a means by which families whose children are taking part in remote learning / virtual classes might assert their Fourth Amendment privacy rights and guard against intrusive government surveillance posed by remote learning technologies.
The Institute released its model “Parental Reservation of Rights – Remote Learning Surveillance” letter in the wake of a growing number of incidents in which students have been suspended and reported to police by school officials for having toy guns nearby while taking part in virtual schooling.
“Remote learning should not justify the expansion of draconian zero tolerance policies to encompass so-called ‘violations’ that take place in students’ homes and home environments. Nor should remote learning be used as a backdoor means of allowing government officials to conduct warrantless surveillance into students’ homes and home environments,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.
“While COVID-19 has undoubtedly introduced significant challenges for the schools, the protocols adopted for navigating these circumstances demand a heightened degree of caution lest government officials heedlessly, needlessly and unlawfully violate key constitutional safeguards established to protect the citizenry against invasive and warrantless intrusion into the home.”
In issuing the model Reservation of Rights letter for use by parents with children enrolled in virtual classes, Rutherford Institute attorneys warned government officials against leveraging the current public health situation to further erode the privacy of American citizens: “At a minimum, schools must not use virtual learning platforms to conduct unwarranted surveillance of students’ homes nor use observations made from within the home as a basis for alleging a crime has been or is being committed.”
The issue arose after Isaiah Elliott, a seventh grader at Grand Mountain School in Colorado Springs, Colo., was reported to police by school officials for playing with a toy gun in the privacy of his own home during a virtual class on the morning of August 27, 2020.
Not only was the 12-year-old suspended for five days for “bringing” a “facsimile of a firearm to school,” but he was also traumatized when a police officer showed up at his home to interrogate him. School officials reported the incident to the El Paso County Sheriff’s office, and a deputy was dispatched to the school.
The deputy reviewed a video of the art class that was recorded without the knowledge or consent of students or their parents and saw the boys playing with the toy gun. A police officer was then dispatched to the Elliott home, where he confronted Isaiah, warning him that he could face criminal charges in the future.