Tag: 4th amendment

‘Geofence’ Warrants Threaten Every Phone User’s Privacy

The last time your phone asked you to allow this or that app access to your location data, you may have had some trepidation about how much Apple or Google know about you. You may have worried about what might come of that, or read about China’s use of the data to track anti-lockdown protesters. What you probably didn’t realize is Google has already searched your data on behalf of the federal government to see if you were involved with January 6th.

But last month, the federal district court in DC issued an opinion in the case of  one of the many defendants who stands accused of sacking the Capitol in the wake of the 2020 election.

And with it, Judge Rudolph Contreras became the first federal district judge to approve a “Geofence” warrant, endorsing a recent police innovation: searching the cell phone history of every American to check who happened to be in the area of some potential crime.

The “Geofence” in this context refers to cell phone location data collected by Google from users of its Android operating system, as well as iPhone users who use apps such as Google Maps. Location tracking can be turned off, but most users allow it for the convenience of getting directions, tracking their daily jog, or finding the nearest Chipotle. The Government’s warrant demanded location history for every Google account holder within a range of longitude and latitude roughly corresponding to the Capitol building on the afternoon of January 6, 2021, along with similar data from that morning and evening (to filter out Hill staff and security guards).

It’s not clear this information was even needed: This defendant was apprehended within the building that day, carrying knives and pepper spray, and features on various security cameras — his whereabouts are not in question. Many of his coreligionists were considerate enough to live stream their antics themselves. While tracking down every participant in what was dubbed the Beer Belly Putsch is impractical, prosecutors have not lacked for defendants, or for evidence against them. But the government nonetheless decided to resort to a level of mass surveillance without precedent in history or criminal law. This is only the second federal district judge to rule on such a warrant, and the first, in the Eastern District of Virginia, found it “invalid for lack of particularized probable cause” (though that judge declined to suppress the evidence on the basis of other Fourth Amendment loopholes created by the Supreme Court).

That particular requirement comes from the Fourth Amendment itself, which calls for every warrant to “particularly describ[e] the place to be searched, and the persons or things to be seized.” This means that, for instance, the warrant issued last year for former President Trump’s Florida residence did not simply say “search the house,” but detailed specific rooms to be searched for specific things (boxes of documents). The cops can’t — or at least are not supposed to — dump out your underwear drawer based on a tip that you’re hiding cocaine in your basement.

Keep reading

Ohio Woman Says Cops Broke Her Wrist for Recording During Traffic Stop

A new lawsuit alleges that an Ohio woman suffered a broken wrist and other injuries after being violently arrested during a traffic stop, in part due to filming the police who pulled her over.

In February 2020, Amanda Mills was pulled over for speeding in Walton Hills, a small town outside Cleveland, Ohio. According to the suit, a police officer, identified in the lawsuit only as “Officer Schmidt” exited his cruiser “irate” and “screaming.” Nervous, Mills began recording the encounter. Schmidt ordered Mills to get out of her vehicle. According to the suit, “Amanda asked ‘why?’ without making any other statement or any sudden movement. At this point, Officer Schmidt realized Amanda was filming him with her cellphone, and he became even more agitated.”

According to the complaint, Schmidt “opened Amanda’s driver-side door, grabbed her by the wrist and arm, and ripped her out of her vehicle.” Another officer helped Schmidt pin Mills to the side of her vehicle. The suit alleges that “Amanda screamed that she was not resisting arrest and continued to cry out in pain.” However, rather than releasing her, officers handcuffed Mills and put her in the back of their cruiser while they searched her vehicle. Eventually, Mills was released from custody after officers could not find illegal substances or outstanding warrants for her arrest. While Mills was initially charged with a first-degree misdemeanor for “failing to comply” with police orders, that charge was eventually dropped.

According to the suit, Mills was left with a broken wrist and other injuries to her arm and breasts. The complaint alleges that the officers’ excessive force violated Mills’ Fourth and 14th Amendment rights. The complaint also says that the Walton Hills Police Department’s practices are the “moving force behind the injuries suffered by Amanda,” and the department is guilty of “failing to adequately train, adequately supervise, as well as failing to investigate and discipline, its police officers when it comes to the excessive use of force.”

Keep reading

360-Degree Surveillance: How Police Use Public-Private Partnerships To Spy On Americans

“We live in a surveillance state founded on a partnership between government and the technology industry.”

– Law Professor Avidan Y. Cover

In this age of ubiquitous surveillance, there are no private lives: everything is public.

Surveillance cameras mounted on utility poles, traffic lights, businesses, and homes. License plate readers. Ring doorbells. GPS devices. Dash cameras. Drones. Store security cameras. Geofencing and geotracking. FitBits. Alexa. Internet-connected devices.  

There are roughly one billion surveillance cameras worldwide and that number continues to grow, thanks to their wholehearted adoption by governments (especially law enforcement and military agencies), businesses, and individual consumers.

With every new surveillance device we welcome into our lives, the government gains yet another toehold into our private worlds.

Indeed, empowered by advances in surveillance technology and emboldened by rapidly expanding public-private partnerships between law enforcement, the Intelligence Community, and the private sector, police have become particularly adept at sidestepping the Fourth Amendment.

Keep reading

Police Need Warrants to Search Homes. Child Welfare Agents Almost Never Get One.

The banging on Ronisha Ferguson’s apartment door in the Bronx started on a Thursday afternoon as she waited for her two sons to get home from school.

Ferguson, a nurse working 16-hour double shifts, knew instantly who she’d find in her hallway that day in February 2019.

For years, caseworkers from the Administration for Children’s Services, New York City’s child protective services bureau, had been showing up unannounced like this and inspecting her kitchen, her bathroom and her bedroom — and her children’s bodies — without a warrant.

A domestic violence survivor who previously lived in a shelter, Ferguson had never been accused of child abuse, ACS case records show. But she had faced repeated allegations of parenting problems largely stemming from her long hours at work, including that she’d provided inadequate supervision by having her 14-year-old daughter babysit the boys when they were 5 and 2, and had also allowed the kids to miss dozens of days of school.

Keep reading

Government Agency Admits That They’ve Copied Phone Data at Massive Scale – 4th Amendment Violations?

A massive database has been growing at Customs and Border Protection as CBP officers extract data from electronic devices.

A report in The Washington Post last week said that during a summer briefing, CBP leaders told congressional staff that information from about 10,000 people a year is added to the database.

CBP officials said the data is kept on file for 15 years.

CBP agents routinely inspect phones, laptops, tablets, and other electronic devices when travelers enter the country — including those of American citizens, the Post reported.

In a letter to CBP Commissioner Chris Magnus, Democratic Sen. Ron Wyden of Oregon said CBP is wrong for “allowing indiscriminate rifling through Americans’ private records.”

“Innocent Americans should not be tricked into unlocking their phones and laptops,” Wyden wrote.

“CBP should not dump data obtained through thousands of warrantless phone searches into a central database, retain the data for fifteen years, and allow thousands of DHS employees to search through Americans’ personal data whenever they want,” he wrote.

Wyden noted in the letter that CBP personnel searching the stored records don’t have to provide any reason for the search.

In a statement to the Post, CBP spokesman Lawrence Payne said CBP conducts “border searches of electronic devices in accordance with statutory and regulatory authorities” and has imposed rules to ensure the searches are “exercised judiciously, responsibly, and consistent with the public trust.”

Keep reading

What Is the FBI Trying To Hide About Its Raid on Innocent Americans’ Safe Deposit Boxes?

First, the FBI raided a private business to seize safe deposit boxes and assets belonging to hundreds of people who were not suspected of having committed any crimes.

Now, prosecutors are trying to keep the public in the dark about why the brazen forfeiture effort was undertaken in the first place—and are offering little justification for why such secrecy is necessary.

Four depositions that could be crucial to understanding the motivations and intentions behind the FBI’s March 2021 raid of U.S. Private Vaults, a Beverly Hills–based safe deposit box storage business, are being kept confidential at the request of federal prosecutors. Attorneys representing some victims of the raid say the depositions could contain important information about how and why the FBI decided to seize and catalog the private belongings of U.S. Private Vault’s customers. They have asked the federal judge handling the case to allow the transcripts of those depositions—including one interview with Lynn Zellhart, the FBI’s lead agent in the case—to be filed in their entirety.

Unless Judge R. Gary Klausner allows the depositions to be made public, attorneys for the plaintiffs will have to continue heavily redacting their filings in the case. That might be sufficient to address the acute legal issues in the lawsuit, but it obviously harms the general public’s right to be informed about the bigger issues at stake.

(Reason, which has been covering this case since the beginning, plans to file a brief requesting that the depositions be unsealed.)

“If the government is successful, it means that the public will have only an incomplete window on what happened here,” Robert Johnson, an attorney at the Institute for Justice who is representing some of U.S. Private Vault’s customers, tells Reason. “That flips the public’s right of access on its head.”

Keep reading

Digital Authoritarianism: AI Surveillance Signals the Death of Privacy

“There are no private lives. This a most important aspect of modern life. One of the biggest transformations we have seen in our society is the diminution of the sphere of the private. We must reasonably now all regard the fact that there are no secrets and nothing is private. Everything is public.” ― Philip K. Dick

Nothing is private.

We teeter on the cusp of a cultural, technological and societal revolution the likes of which have never been seen before.

While the political Left and Right continue to make abortion the face of the debate over the right to privacy in America, the government and its corporate partners, aided by rapidly advancing technology, are reshaping the world into one in which there is no privacy at all.

Nothing that was once private is protected.

We have not even begun to register the fallout from the tsunami bearing down upon us in the form of AI (artificial intelligence) surveillance, and yet it is already re-orienting our world into one in which freedom is almost unrecognizable.

AI surveillance harnesses the power of artificial intelligence and widespread surveillance technology to do what the police state lacks the manpower and resources to do efficiently or effectively: be everywhere, watch everyone and everything, monitor, identify, catalogue, cross-check, cross-reference, and collude.

Everything that was once private is now up for grabs to the right buyer.

Governments and corporations alike have heedlessly adopted AI surveillance technologies without any care or concern for their long-term impact on the rights of the citizenry.

As a special report by the Carnegie Endowment for International Peace warns, “A growing number of states are deploying advanced AI surveillance tools to monitor, track, and surveil citizens to accomplish a range of policy objectives—some lawful, others that violate human rights, and many of which fall into a murky middle ground.”

Indeed, with every new AI surveillance technology that is adopted and deployed without any regard for privacy, Fourth Amendment rights and due process, the rights of the citizenry are being marginalized, undermined and eviscerated.

Cue the rise of digital authoritarianism.

Digital authoritarianism, as the Center for Strategic and International Studies cautions, involves the use of information technology to surveil, repress, and manipulate the populace, endangering human rights and civil liberties, and co-opting and corrupting the foundational principles of democratic and open societies, “including freedom of movement, the right to speak freely and express political dissent, and the right to personal privacy, online and off.”

The seeds of digital authoritarianism were planted in the wake of the 9/11 attacks, with the passage of the USA Patriot Act. A massive 342-page wish list of expanded powers for the FBI and CIA, the Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens.

It sounded the death knell for the freedoms enshrined in the Bill of Rights, especially the Fourth Amendment, and normalized the government’s mass surveillance powers.

Keep reading

Americans warned: Police now authorized to track you via cell phone

Police across America now can track citizens through their cell phones – without a warrant – despite the Fourth Amendment’s ban on warrantless searches, according to a team of civil-rights lawyers at the Rutherford Institute.

That’s the result of the U.S. Supreme Court deciding not to intervene in a lower court decision that authorized exactly that.

The institute had filed a friend-of-the-court brief in the case Hammond v. U.S. that challenged the tracking of people through their cell phones as unconstitutional.

That tracking can tell police a person’s location with great precision, “whether that person is at home, at the library, a political event, a doctor’s office, etc.,” the organization reported.

“Americans are being swept up into a massive digital data dragnet that does not distinguish between those who are innocent of wrongdoing, suspects, or criminals. Cell phones have become de facto snitches, offering up a steady stream of digital location data on users’ movements and travels,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute.

“Added to that, police are tracking people’s movements by way of license plate toll readers; scouring social media posts; triangulating data from cellphone towers and WiFi signals; layering facial recognition software on top of that; and then cross-referencing footage with public social media posts, all in an effort to identify, track and eventually round us up. This is what it means to live in a suspect society,” he said.

Keep reading

Scooping private data doesn’t violate Fourth Amendment if the owner can still access it, court rules

The US Ninth Circuit Court of Appeals appears to have given the government permission to order anyone’s internet account data copied and held without any cause, whenever they want, without providing any justification, according to University of California, Berkeley School of Law professor Orin Kerr’s analysis of a recent Ninth Circuit briefing that affirmed Carsten Igor Rosenow’s conviction and sentencing for sexually exploiting children in the Philippines.

In his appeal to the Ninth Circuit, Rosenow argued that he had a right to privacy in his digital data and that law enforcement requests to preserve his Yahoo! account data, which were submitted without a warrant after a tip from Yahoo!, violated the Fourth Amendment’s protection against unreasonable search and seizure.

But the Ninth Circuit rejected his argument and affirmed his conviction, saying that Yahoo!’s preservation of Rosenow’s records didn’t amount to an unreasonable seizure because the preservation requests didn’t prevent him from accessing his account and Yahoo! didn’t provide the government with access to his data without further legal process:

“A ‘seizure’ of property requires ‘some meaningful interference [by the government,] with an individual’s possessory interests in [his] property.’ Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow’s possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow’s digital information without further legal process.”

The court also claimed that Rosenow had already consented to these preservation requests when he accepted Yahoo!’s terms of service:

“It also is worth noting that Rosenow consented to the ESPs [electronic service providers] honoring preservation requests from law enforcement under the ESPs’ terms of use.”

We obtained a copy of the Ninth Circuit’s briefing for you here.

Keep reading

Supreme Court gives victims of malicious prosecutors new weapon

People who are victimized by malicious prosecutions in America’s court systems have been given a new weapon – confirmation that they no longer have to “prove” their innocence by using the court system’s own documentation.

The Supreme Court in a 6-3 ruling in Thompson v. Clark has found that individuals have a Fourth Amendment right to hold police accountable for maliciously arresting and charging them without probable cause.

“At a time when the courts routinely shield police from accountability for misconduct, this ruling is at least an encouraging glimmer in the gloom,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute, which joined a friend-of-the-court brief in the case.

“For too long, Americans have been treated as if they have no rights at all when it comes to encounters with police. This is an overdue reminder that freedom is not secondary to security, and the rights of the citizenry are no less important than the authority of the government,” he said.

Keep reading