Category Archives: Fourth Amendment

PRIVACY experts are concerned the US government is overreaching by secretly issuing warrants for Google to turn over a person's search terms.

Federal investigators are pursuing so-called "keyword warrants" and getting Google to provide information based on anyone who searched a victim's name or their address during a particular year, according to a court document that was mistakenly unsealed in September.

1

The revelation came in a 2019 federal case in Wisconsin where investigators pursuing men they suspected were trafficking and sexually abusing a minor who had gone missing.

The investigators approached Google to supply information on anyone who used their search engine to type in the victims name, two spellings of her mothers name and her address over 16 days that year, according to Forbes.

Authorities being able to access peoples searches is concerning to privacy experts who fear they could breach of Fourth Amendment protections from unreasonable searches.

Trawling through Googles search history database enables police to identify people merely based on what they might have been thinking about, for whatever reason, at some point in the past, surveillance and cybersecurity counsel at the American Civil Liberties Union Jennifer Granick told Forbes.

Google didnt deny the searches and claimed they were fairly supportive of both law enforcement and protected individual rights.

Revealed

As with all law enforcement requests, we have a rigorous process that is designed to protect the privacy of our users while supporting the important work of law enforcement, a Google spokesperson said.

While the Silicon Valley tech giant responds to thousands of warrant orders every year, the governments keyboard warrants are a new and potentially controversial pursuit.

The document was also unredacted, meaning the accidental unsealing published the kidnapping victims name, her Facebook profile, her phone number and address - a potential breach of a minors privacy, according to Forbes.

Aside from the Wisconsin sex abuse case, which has since been sealed, Forbes was able to find at least one other instance where a keyword warrant was sought.

That case occurred in the Northern District of California in December 2020, but unlike the Wisconsin case, the document was sealed.

That order is listed in the docket as: Application by the United States for a Search Warrant for Google Accounts Associated with Six Search Terms and Four Search Dates, according to Forbes.

Following the publication of Googles keyboard warrants article, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), detailed three other Google keyword warrants.

She found they involved an investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Also, Google is not the only company serving up such information to law enforcment agencies.

Both Yahoo and Microsoft appear to have supplied the similar search data in two cases, Forbes reported.

Just last month, Google was under pressure to explain is method of providing location data to law enforcement in an attempt to catch criminals.

Authorities were able to seek a geofence warrant' that puts Google on the clock to hand over a persons data.

Google reported it fielded 11,554 geofence location warrants from law enforcement last year.

It said 8,396 had been requested in 2019.

Police in Gainesville, Florida turned to Google to Google supply intel about a man called Zachary McCoy after they determined his routine bike ride had him passing through a crime scene.

McCoy was received an alarming email from Google in January 2020 informing him that the police had requested his user data.

He had seven days to go to court if he wanted to block the release of his Google data.

He learned that the case involved a burglary that had happened at a home on his bike route that particular day in 2019.

Police had obtained McCoy's Google location data at the time through a geofence warrant.

The connection between his location and the site of the crime meant the police wanted to access more data about McCoy.

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US Government orders Google to TRACK users who search certain terms sparking fears innocent people will b... - The Sun

SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment"), dated as of September 30, 2021, is entered into by and among IT GLOBAL HOLDING LLC, a Delaware limited liability company ("IT Global"), 4TH SOURCE LLC a Delaware limited liability company ("4th Source"), AGILETHOUGHT, LLC, a Florida limited liability company ("AgileThought"), AN EXTEND, S.A. de C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico ("AN Extend"), AN EVOLUTION S. DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable incorporated under the laws of Mexico("AN Evolution," and together with IT Global, 4th Source, AgileThought, and AN Extend, each a "Borrower" and collectively, the "Borrowers"), AN GLOBAL LLC, a Delaware limited liability company ("Intermediate Holdings"), AGILETHOUGHT, INC. (f/k/a AN GLOBAL INC.), a Delawarecorporation ("Ultimate Holdings" and together with Intermediate Holdings, the "Holdings Companies"), the Guarantors (as defined in the Credit Agreement defined below) listed on the signature pages hereto, the financial institutions party hereto as lenders (together with their respective successors and assigns, the "Lenders"), and MONROE CAPITAL MANAGEMENT ADVISORS, LLC, a Delaware limited liability company ("Monroe Capital"), as Administrative Agent for the Lenders (the "Administrative Agent").

RECITALS

WHEREAS, Borrowers, Holdings Companies, the Lenders party thereto, and the Administrative Agent are parties to that certain Amended and Restated Credit Agreement, dated as of July 18, 2019, as amended by that certain Waiver and First Amendment, dated as of January 30, 2020, that certain Waiver and Second Amendment, dated as of May 14, 2020, that certain Waiver and Third Amendment, dated as of February 2, 2021, that certain Fourth Amendment, dated as of April 30, 2021, that certain Fifth Amendment, dated as of June 24, 2021 and that certain Sixth Amendment, dated as of July 26, 2021 (as further amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement");

WHEREAS, the Borrowers and Holdings Companies now desire that the Administrative Agent and the Lenders agree to make certain amendments to the Credit Agreement; and

WHEREAS, the Administrative Agent and the Lenders have agreed to do so, but only on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the matters set forth in the above Recitals and the covenants and provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

Section 1Amendments to Credit Agreement. Subject to the effectiveness of this Amendment, including, without limitation, the satisfaction of the conditions of effectiveness set forth in Section 3 below, on the Amendment No. 7 Effective Date (as defined below), the Credit Agreement is hereby amended as follows:

1.1Section 6.4.2 of the Credit Agreement is hereby amended and restated in its entirety as follows:

6.4.2 Term Loans. Borrowers shall repay the aggregate outstanding principal amount of the Term Loans (including, without limitation, the Existing Term Loans, the Closing Date Term Loans, and any Incremental Term Loans) (a) in consecutive quarterly installments equal to the Scheduled Term Loan Payment Amount on the last Business Day of each of March, June, September and December commencing on September 30, 2019 (other than for the four consecutive months ending April 30, 2021 through and including July 31, 2021 (the "Modified Amortization Period"), which shall amortize as set forth in clause (b)), (b) on October 15, 2021, an amortization payment (reflecting amortization payments that would otherwise have been due during the Modified Amortization Period) in the amount of $4,000,000 and (c) a final installment equal to the remaining outstanding principal balance of the Term Loans, payable on the Termination Date. Unless sooner paid in full, the outstanding principal balance of the Term Loans must be paid in full on the Termination Date.

Section 2Definitions. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in the Credit Agreement as amended hereby.

Section 3Conditions Precedent to Effectiveness of Amendment. This Amendment shall become effective upon the satisfaction of each of the following conditions (the date on which all such conditions precedent have been satisfied, the "Amendment No. 7 Effective Date"):

3.1Administrative Agent shall have received a copy of this Amendment signed by the Loan Parties, the Administrative Agent and the Required Lenders;

3.2Administrative Agent shall have received evidence of payment by the Borrowers of all accrued and unpaid fees, costs and expenses incurred prior to or on the Amendment No. 7 Effective Date, including all Attorney Costs of the Administrative Agent incurred prior to or on the Amendment No. 7 Effective Date; and

3.3All representations and warranties set forth in Section 4 hereof are true and correct.

Section 4Representations and Warranties. To induce the Administrative Agent and the Lenders to execute this Amendment, each Loan Party hereby represents and warrants to the Administrative Agent and the Lenders as follows:

4.1the execution, delivery and performance of this Amendment by the Loan Parties has been duly authorized, and this Amendment constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms, except as the enforceability may be limited by bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity;

4.2the execution, delivery and performance of this Amendment by each Loan Party does not require any consent or approval of any governmental agency or authority (other than (i) any consent or approval which has been obtained and is in full force and effect, or (ii) where the failure to obtain such consent would not reasonably be expected to result in a Material Adverse Effect);

4.3after giving effect to this Amendment and the transactions contemplated hereby, each of the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (unless any such representation or warranty is by its terms qualified by

concepts of materiality, in which case that representation or warranty is true and correct in all respects) with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case that representation or warranty is true and correct in all material respects or in all respects, as applicable, as of that earlier date); and

4.4after giving effect to this Amendment and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing or would result from the execution and effectiveness of this Amendment.

Section 5Ratification and Reaffirmation. Each Loan Party hereby ratifies and confirms the Credit Agreement and each other Loan Document to which it is a party, in each case, as amended prior to the date hereof and as amended hereby, each of which shall remain in full force and effect according to their respective terms. In connection with the execution and delivery of this Amendment and the other Loan Documents delivered herewith, each Loan Party, as borrower, debtor, grantor, mortgagor, pledgor, guarantor, assignor, obligor or in other similar capacities in which such Loan Party grants liens or security interests in its properties or otherwise acts as an accommodation party, guarantor, obligor or indemnitor or in such other similar capacities, as the case may be, in any case under any Loan Documents, hereby (a) ratifies, reaffirms, confirms and continues all of its payment and performance and other obligations, including obligations to indemnify, guarantee, act as surety, or as principal obligor, in each case contingent or otherwise, under each of such Loan Documents to which it is a party, (b) ratifies, reaffirms, confirms and continues its grant of liens on, or security interests in, and assignments of its properties pursuant to such Loan Documents to which it is a party as security for the Obligations, and (c) confirms and agrees that such liens and security interests secure all of the Obligations. Each Loan Party hereby consents to the terms and conditions of the Credit Agreement, as amended prior to the date hereof and as amended hereby. Each Loan Party acknowledges (i) that each of the Loan Documents to which it is a party remains in full force and effect, (ii) that each of the Loan Documents to which it is a party, as amended prior to the date hereof and as amended hereby, is hereby ratified, continued and confirmed, (iii) that any and all obligations of such Loan Party under any one or more such documents to which it is a party is hereby ratified, continued and reaffirmed, and (iv) that, to such Loan Party's knowledge, there exists no offset, counterclaim, deduction or defense to any obligations described in this Section 5. This Amendment shall not constitute a course of dealing with the Administrative Agent or the Lenders at variance with the Credit Agreement or the other Loan Documents such as to require further notice by the Administrative Agent or the Lenders to require strict compliance with the terms of the Credit Agreement and the other Loan Documents in the future.

Section 6Acknowledgement of Outstanding Amendment Fees. The Borrowers hereby acknowledge and agree that the Borrowers have previously agreed to pay on a joint and several basis to the Administrative Agent, for the account of the Lenders, amendment fees in connection with prior amendments to the Credit Agreement in an aggregate outstanding amount equal to $5,625,000 (including, without limitation, $1,000,000 in fees resulting from the Borrowers' deferral of amortization payments, the "Outstanding Amendment Fees"). The Outstanding Amendment Fees, in the amount of $5,625,000 have been fully earned prior to the Amendment No. 7 Effective Date and are non-refundable, and shall be due and payable on the Termination Date.

Section 7Miscellaneous.

7.1Signatures; Effect of Amendment. By executing this Amendment, each of the Loan Parties is deemed to have executed the Credit Agreement, as amended hereby, as a Borrower and a Loan Party (or, in the case of the Holdings Companies and the Guarantors, solely as a Loan Party). All

such Loan Parties, the Administrative Agent, and the Lenders acknowledge and agree that (a) nothing contained in this Amendment in any manner or respect limits or terminates any of the provisions of the Credit Agreement or any of the other Loan Documents other than as expressly set forth herein and further agree and acknowledge that the Credit Agreement (as amended hereby) and each of the other Loan Documents remain and continue in full force and effect and are hereby ratified and confirmed, and (b) other than as expressly set forth herein, the obligations under the Credit Agreement and the guarantees, pledges and grants of security interests created under or pursuant to the Credit Agreement and the other Loan Documents continue in full force and effect in accordance with their respective terms and the Collateral secures and shall continue to secure the Loan Parties' obligations under the Credit Agreement (as amended hereby) and any other obligations and liabilities provided for under the Loan Documents. Except to the extent expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any rights, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement or any other Loan Document, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Document, nor constitute a novation of any of the Obligations under the Credit Agreement or obligations under the Loan Documents. This Amendment does not extinguish the indebtedness or liabilities outstanding in connection with the Credit Agreement or any of the other Loan Documents. No delay on the part of the Administrative Agent or any Lender in exercising any of their respective rights, remedies, powers and privileges under the Credit Agreement or any of the Loan Documents or partial or single exercise thereof, shall constitute a waiver thereof. None of the terms and conditions of this Amendment may be changed, waived, modified or varied in any manner, whatsoever, except in accordance with Section 15.1 of the Credit Agreement.

7.2Counterparts. This Amendment may be executed electronically and in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of the executed counterpart of this Amendment by telecopy or electronic mail shall be as effective as delivery of a manually executed counterpart to this Amendment.

7.3Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.

7.4Captions. Section captions used in this Amendment are for convenience only, and shall not affect the construction of this Amendment.

7.5Entire Agreement. This Amendment embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof.

7.6References. Any reference to the Credit Agreement contained in any notice, request, certificate, or other document executed concurrently with or after the execution and delivery of this Amendment shall be deemed to include this Amendment unless the context shall otherwise require. Reference in any of this Amendment, the Credit Agreement, or any other Loan Document to the Credit Agreement shall be a reference to the Credit Agreement as amended hereby and as may be further amended, modified, restated, supplemented or extended from time to time.

7.7Governing Law. THIS AMENDMENT IS A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO

CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE, WITHOUT REGARD TO CONFLICT-OF-LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

7.8Payment of Costs and Expenses. Each Loan Party, jointly and severally, agree pursuant to the terms of Section 15.5 of the Credit Agreement, to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent incurred in connection with the transactions contemplated hereby (including Attorney Costs and Taxes) in connection with the preparation, execution and delivery of this Amendment and the other Loan Documents.

[Signatures Immediately Follow]

IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written above.

By: /s/ Manuel Senderos

4TH SOURCE LLC, a Delaware limited liability company, as a Borrower and a Guarantor

By: /s/ Manuel Senderos

AGILETHOUGHT LLC, a Florida limited liability company, as a Borrower

By: /s/ Manuel Senderos

AN EVOLUTION, S. DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable incorporated under the laws of Mexico, as a Borrower

By: /s/ Manuel Senderos

By: /s/ Mauricio Garduo

Signature page to Seventh Amendment

AN EXTEND, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Borrower

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

4TH SOURCE MEXICO, LLC, a Delaware limited liability company, as a Guarantor

By: /s/ Manuel Senderos

AGS ALPAMA GLOBAL SERVICES USA LLC, a Delaware limited liability company, as a Guarantor

By: /s/ Jorge Pliego

AN USA, a California corporation, as a Guarantor

By: /s/ Manuel Senderos

QMX INVESTMENT HOLDINGS USA, INC., a Delaware corporation, as a Guarantor

By: /s/ Jorge Pliego

Signature page to Seventh Amendment

ENTREPIDS TECHNOLOGY INC., a Delaware corporation, as a Guarantor

By: /s/ Manuel Senderos

AGS ALPAMA GLOBAL SERVICES MEXICO, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AGILETHOUGHT DIGITAL SOLUTIONS S.A.P.I. de C.V. (f/k/a North American Software, S.A.P.I. de C.V.), a sociedad annima promotora de inversiones de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AgileThought Mexico, S.A. de C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

AN DATA INTELLIGENCE, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

ANZEN SOLUCIONES, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

AN UX, S.A. DE C.V., a sociedad anonima de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

FAKTOS INC., S.A.P.I. DE C.V., a sociedad annima promotora de inversiones de capital variable incorporated under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

By: /s/ Manuel Senderos

By: /s/ Mauricio Garduo

By: /s/ Manuel Senderos

By: /s/ Manuel Senderos

By: /s/ Mauricio Garduo

CUARTO ORIGEN, S DE R.L. DE C.V., a sociedad de responsabilidad limitada de capital variable organized under the laws of Mexico, as a Guarantor

By: /s/ Manuel Senderos

Signature page to Seventh Amendment

By: /s/ Manuel Senderos

By: /s/ Mauricio Garduo

Signature page to Seventh Amendment

ADMINISTRATIVE AGENT:

MONROE CAPITAL MANAGEMENT ADVISORS, LLC, as Administrative Agent

By: /s/ Jeffrey Cupples

Signature page to Seventh Amendment

MC FINANCING SPV I, LLC,

in its capacity as a Lender

By: /s/ Jeffrey Cupples

Signature page to Seventh Amendment

MONROE CAPITAL CORPORATION,

in its capacity as a Lender

Read more here:
AgileThought : SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (Form 8-K) - Marketscreener.com

A jury has awarded more than $2.5 million to a man who sued a Denver police sergeant and the city in 2015 when he was shot in the back and hand while he lay facedown with his hands above his head, after getting caught in the crosshairs of a shootout as an unarmed bystander when an acquaintance he had taken a ride from led police on a chase.

Michael Valdez claimed in a federal lawsuit the city failed to adequately train the officers on reasonable use of force during arrests. A jury on Sept. 23 found Denver liable for a failure to train and found that Sgt. Robert Motyka, Jr. used excessive force in violation of Valdez Fourth Amendment rights.

The verdict includes $131,000 in damages against Motyka whom Valdez sued in his individual capacity and $2.4 million against Denver.

Valdez and his attorneys couldnt immediately be reached for comment Monday.

In January 2013 Valdez accepted a ride in a friends pickup truck. Valdez didnt know the friend and his truck were wanted by Denver police for involvement in an incident earlier in the day, according to the lawsuit. A chase ensued during which shots were fired at officers, and Motyka was hit. The truck eventually crashed, and Valdez and another passenger got out of the car a few minutes later and lay on the ground, the lawsuit says.

Valdez was shot in his back and finger as he tried to shield his head from gunshots, the lawsuit claimed.

The lawsuit said Valdez suffered fractures in his back that left bone fragments in his spinal canal and had to have part of a finger on his left hand amputated. The injuries confined Valdez to a wheelchair for more than a year and he regained only partial use of his legs and feet by the time of the lawsuits filing, according to the complaint.

City attorney spokesperson Jacqulin Davis said in a statement the city is reviewing the case to determine next steps. The officer couldnt participate during the first week of the trial because of COVID restrictions, she wrote in an email.

Officer training is taken seriously in Denver, Davis wrote.

An arrest affidavit issued for Valdez at the time said Motyka received treatment at a hospital for his gunshot wound.

The lawsuit claimed prosecutors filed unsubstantiated charges for attempted murder, assault and first-degree murder against Valdez in two separate cases despite the officers knowing Valdez wasnt involved in the incidents. The lawsuit said Valdez remained in jail in agonizing pain for more than two months, unable to post bond, until prosecutors dismissed the charges on March 19, 2013.

At no time on January 16, 2013, did Mr. Valdez possess a firearm, attempt to shoot anyone, or otherwise attempt to cause bodily injury to anyone. Mr. Valdez was simply an innocent bystander who was a captive passenger in the red Dodge truck, said the lawsuit.

The complaint claimed the city has a long-standing culture of tolerating excessive force by police. It pointed to an incident a few years earlier involving Motyka when officers forcefully entered a home without a warrant and assaulted a father and three sons, later realizing the people they actually were after a pair of brothers who reportedly sold drugs and ran a brothel out of the home had recently moved out of the home, The Denver Post reported.

Members of the family were falsely charged with assaulting officers, the lawsuit brought by Valdez said.

Qusair Mohamedbhai, a civil rights attorney and partner at Rathod Mohamedbhai,represented the family in a lawsuit that resulted in a $1.8 million verdict awarded to them in 2014.

He said the jury's finding of Denver's liability in Valdez' case for failure to train stands out to him because it seems to indicate the jurors believed systemic issues within the police department are a bigger problem than the individual officer's conduct.

"When you keep these kinds of officers who have been now tagged multiple times in federal court by juries, the problem might be the officers, or it sure seems like it's the system that allows them to remain," he said.

Motyka received the Denver Police Department's Medal of Honor for his involvement in the chase, The Denver Post reported in 2015.

But the 10th Circuit Court of Appeals upheld the trial courts denial of qualified immunityfor Motyka which shields government employees from lawsuits absent a violation of clearly established constitutional rights in 2020.

In its denial of qualified immunity for Motyka, the trial court described the injured officer as very angry as well and very eager to get the occupant who shot him. The scattered bullets and Motykas attitude suggested he started shooting without making any effort to determine whether there was any immediate threat to him or others as the occupants of the cab came out.

Court cases are an important part of establishing and clarifying constitutional rights, and in that way, Mohamedbhai said qualified immunity is a tricky concept because it assumes officers are "walking repositories of case law" who approach situations by "scanning their database brains" to understand when qualified immunity will protect them and make decisions about what they should and shouldn't do.

"That's the absurdity of it," he said.

The jury took less than three hours in Valdez' lawsuit to reach its verdict when the members began deliberating on Sept. 23 after a nine-day trial, courtroom notes indicate.

Valdez originally also sued officers Peter Derrick III, Jeff Motz and Karl Roller, but dropped his claims against them in August 2018. The trial court granted qualified immunity to a fifth officer Valdez brought claims against, John MacDonald.

Colorado Politics reporter Michael Karlik contributed to this report.

Link:
Man wins $2.5 million verdict in excessive force lawsuit against Denver police sergeant and city - Denver Gazette

from the searching-the-searchers dept

Not only is the government using "reverse warrants" to rummage around in your Google stuff, it's also using "keyword warrants" to cast about blindly for potential suspects.

Reverse warrants (a.k.a. geofence warrants) allow the government (when allowed by courts) to work its way backwards from a bulk collection of data to potential suspects by gathering info on all phone users in the area of a suspected crime. The only probable cause supporting these searches is the pretty damn good probability Google (and others but mostly Google) have gathered location data that can be tied to phones. Once a plausible needle is pulled from the haystack, the cops go back to Google, demanding identifying data linked to the phone.

This search method mirrors another method that's probably used far more often than it's been exposed. As Thomas Brewster reports for Forbes, an accidentally unsealed warrant shows investigators are seeking bulk info on Google users using nothing more than search terms they think might be related to criminal acts.

In 2019, federal investigators in Wisconsin were hunting men they believed had participated in the trafficking and sexual abuse of a minor. She had gone missing that year but had emerged claiming to have been kidnapped and sexually assaulted, according to a search warrant reviewed by Forbes. In an attempt to chase down the perpetrators, investigators turned to Google, asking the tech giant to provide information on anyone who had searched for the victims name, two spellings of her mothers name and her address over 16 days across the year. After being asked to provide all relevant Google accounts and IP addresses of those who made the searches, Google responded with data in mid-2020, though the court documents do not reveal how many users had their data sent to the government.

This isn't the first time this form of warrant has been used to acquire data that might lead police to suspects. In 2017, public records enthusiast Tony Webster reported that police in Minnesota had used the same technique to attempt to work their way backwards to a fraud suspect. In that case, investigators served Google with a subpoena for data on everyone who had searched for the identity fraud victim's name. When Google refused to grant this request, the police approached a judge for permission to ask Yahoo and Bing the same question. This request was granted.

The same method was reported on again in 2020, when investigators used a keyword warrant to look for people who had searched the address of an arson victim. In this case, Google complied, returning only a single result relevant to the time, place, and search terms -- one that led police to a suspect with some pretty suspicious location data.

But these are not the only examples. And the broad search attempted here isn't even the broadest keyword search seen in court documents. Shortly after publication, the EFF arrived with an update:

After publication, Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation (EFF), highlighted three other Google keyword warrants that were used in the investigation into serial Austin bombings in 2018, which resulted in the deaths of two people.

Not widely discussed at the time, the orders appear even broader than the one above, asking for IP addresses and Google account information of individuals who searched for various addresses and some terms associated with bomb making, such as low explosives and pipe bomb. Similar orders were served on Microsoft and Yahoo for their respective search engines.

As is the case in any warrant that has the word "reverse" appended to it (even colloquially), there are Fourth Amendment concerns. Casting a wide net to catch all possibilities before working backwards to a suspect may sound like canvassing a neighborhood after a crime, but the comparison is pretty weak. The wider the net, the higher the chance of arresting the wrong person. Unlike talking to people near a crime scene, reverse warrants dispense with alibis, investigators' intuition, and other efforts that reduce the chance of bagging the wrong suspect. And the demand for data makes everyone a suspect -- something analogous to hauling everyone in the area back to the police station for questioning. The data heads to the police who then try to make sense of the bulk collection.

Probable cause doesn't work that way. Just because it's a safe assumption Google has gathered data relevant to the investigation does not justify demanding all relevant information, regardless of its actual link to the crime being investigated. The sealing of warrants like these isn't just to protect the integrity of the investigation or to prevent suspects from being alerted. It's safe to say law enforcement is aware the public (and their often-unaware oversight) will take a dim view of these fishing expeditions. And the more often they're exposed, the more often suspects tracked down using these searches will challenge them.

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Filed Under: 4th amendment, keyword warrants, reverse warrants, search resultsCompanies: google

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Accidentally Unsealed Document Shows Feds Are Using Reverse Warrants To Demand Info On Google Searches - Techdirt

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Updated, Oct. 5

A group of Democratic lawmakers has demanded that several education technology companies that monitor children online explain their business practices, arguing that around-the-clock digital surveillance demonstrates a clear invasion of student privacy, particularly when students and families are unable to opt out.

In four letters to company executives last week, Democratic Sens. Elizabeth Warren, Ed Markey and Richard Blumenthal asked them to explain steps theyre taking to ensure the tools arent unfairly targeting students and perpetuating discriminatory biases, and comply with federal laws. The letters went to executives at Gaggle, Securly, GoGuardian and Bark Technologies, each of which use artificial intelligence to analyze students online activities and identify behaviors they believe could be harmful.

Education technology companies have developed software that are advertised to protect student safety, but may instead be surveilling students inappropriately, compounding racial disparities in school discipline and draining resources from more effective student supports, the lawmakers wrote in the letters. Though the tools are marketed as student safety solutions and grew rapidly as schools shifted to remote learning during the pandemic theres a dearth of research to suggest theyre effective. Some critics, including the lawmakers, argue they may do more harm than good. The use of these tools may break down trust within schools, prevent students from accessing critical health information and discourage students from reaching out to adults for help, potentially increasing the risk of harm for students, the senators wrote.

The letters cited a recent investigation by The 74, which outlined how Gaggles AI-driven surveillance tool and human content moderators subject children to relentless digital surveillance long after classes end for the day, including on weekends, holidays, late at night and over the summer. In Minneapolis, the company notified school security when it identified students who made references to suicide, self-harm and violence. But it also analyzed students classroom assignments, journal entries, chats with friends and fictional stories.

Each of the companies offer differing levels of remote student surveillance. Gaggle, for example, analyzes emails, chat messages and digital files on students school-issued Google and Microsoft accounts. Other services include students social media accounts and web browsing history, among other activities.

The letters were particularly critical of the tools capacity to track student behaviors 24/7 including when students are at home and their ability to monitor students on their personal devices in some cases.

Schools use of digital monitoring tools has become commonplace in recent years. More than 80 percent of teachers reported using the tools, according to a recent survey by the Center for Democracy and Technology. Among those who participated in the survey, nearly a third reported that they monitor student activity at all hours of the day and just a quarter said it was limited to school hours.

Because of the lack of transparency, many students and families are unaware that nearly all of their childrens online behavior is being tracked, according to the letters. When students and families are aware, they are often unable to opt out because school-issued devices are given to students with the software already installed, and many students rely on these devices for remote or at-home learning.

A Securly spokesperson said in an email the company is reviewing the correspondence received by the lawmakers and is in the process of responding to their requests for information. He said the company is deeply committed to continuously evolving our technology to help schools protect students online. A Gaggle spokesperson said the company appreciates the lawmakers interest in learning how the tool serves as an early warning system to help school districts prevent tragedies such as suicide, acts of violence, child pornography and other dangerous situations. A GoGuardian spokesman said the company cares deeply about keeping students safe and protecting their privacy.

Bark officials didnt respond to requests for comment.

The Clinton-era Childrens Internet Protection Act, passed in 2000, requires schools to filter and monitor students internet use to ensure they arent accessing material that is harmful to minors, such as pornography. Student privacy advocates have long argued that a newer generation of AI-driven tools go beyond the laws scope and have urged federal officials to clarify its requirements. The law includes a disclaimer noting that it does not require the tracking of internet use by any identifiable minor or adult user. It remains an open question as to whether schools use of digital tools to monitor students at home violates Fourth Amendment protections against unreasonable searches and seizures, according to a report released last week by the Future of Privacy Forum.

In their letters, senators highlighted how digital surveillance tools could perpetuate several educational inequities. For example, the tools could have a disproportionate impact on students of color and further uphold longstanding racial disparities in student discipline.

School disciplinary measures have a long history of disproportionately targeting students of color, who face substantially more punitive discipline than their white peers for equivalent offenses, according to the letters. These disciplinary records, even when students are cleared, may have life-long harmful consequences for students.

Meanwhile, the tools may have a larger impact on low-income students who rely on school technology to access the internet than those who can afford personal computers. Elizabeth Laird, the director of equity in civic technology at the Center for Democracy and Technology, said their research revealed a worrisome lack of transparency around how these educational technology companies track students online and how schools rely on their tools.

Responses to this letter will help shine a light on these tools and strategies to mitigate the risks to students, especially those who are most reliant on school-issued devices, she said in an email.

Read this article:
Democratic Lawmakers Demand Student Surveillance Companies Outline Business Practices, Warn the Security Tools May Compound 'Risk of Harm for...

Congress is debating a massive reconciliation bill of at least $3.5 trillion (thats trillion, with a T), and a vote is expected soon. To offset the unprecedented spending, the Biden administration and its allies in Congress need to generate offsets, and what they propose puts your privacy and that of Texas small businesses in jeopardy.

Overall, the tax hike provisions of this bill are counterproductive to a resilient economy. One provision is particularly disturbing. The administration has been planning to force your bank, credit union or other financial institution to report annually on all individual and business transactions of $600 or more.

They say they want to use this information to catch wealthy tax cheats. But this is a smokescreen, because even if the wealthiest Americans were taxed at 100%, the revenue would fail to cover this economic albatross. What they really want is to empower the IRS to surveil almost all Americans to generate more tax revenue.

How do we know this is their actual intent? Since the spring, the administration has proposed to monitor all inflows and outflows (transactions). At the $600 level, few Americans would escape the dragnet. It would annually capture information on individuals, such as your credit card payments and even transactions with family and friends.

For small business owners, it would gobble up data on partner and vendor relationships to include anyone who pays you or that you may pay over the aggregate threshold amount.

As the public has become more aware of the scheme, its backers in Congress now say they will raise the dollar amount of the reporting threshold. This is a first step of their strategy to ultimately give the Internal Revenue Service power to monitor the financial information of all Americans.

It is also a Washington negotiation ploy to get moderate politicians to accept the language despite a growing outcry from citizens across the political spectrum. Members of the Texas congressional delegation should not take the bait.

Beyond paying for profligate spending, this proposal tramples on the rights of law-abiding citizens regardless of the threshold that may be set. The Fourth Amendment of the Constitution exists to protect Americans from precisely this kind of government surveillance:

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.

Such a voluminous IRS data grab without probable cause means that American citizens are to be presumed tax cheats by the IRS until eventually proven otherwise by bureaucrats. Keeping your tax records for seven years? Forget about it. The same IRS that has previously leaked confidential taxpayer information will have this information forever.

So where do you stand? For Republicans, do you trust President Joe Bidens IRS to use this information appropriately? Conversely for Democrats, would you trust Donald Trump or another Republican president with this power? Opposing this measure should unite Democrats, Republicans and independents.

Financial data contains some of the most personal information about our lives and livelihoods. This is why criminals try to steal it for their own financial benefit. Now our federal government which is supposed to protect our rights wants in on the action, too.

Texas banks value the privacy of our customers, and we are strongly opposed to this proposal. Community banks should not be forced to become de facto IRS reporting agents.

If we dont convince Congress to reject this provision immediately, the IRS will certainly be watching your family and business.

Chris Furlow is chief executive of the Texas Bankers Association. He wrote this column for The Dallas Morning News.

Find the full opinion section here. Got an opinion about this issue? Send a letter to the editor and you just might get published.

More here:
Will Congress enable the IRS to spy on you? - The Dallas Morning News

In a powerful new ruling for digital privacy rights, the Ninth Circuit Court of Appeals has confirmed that the police need to get a warrant before they open your email attachmentseven if a third partys automated system has flagged those attachments as potentially illegal. We filed an amicus brief in the case.

How We Got Here

Federal law prohibits the possession and distribution of child sexual assault material (also known as child pornography or CSAM). It also requires anyone who knows another possesses or is engaged in distributing CSAM to report to a quasi-governmental organization called the National Center for Missing and Exploited Children (NCMEC).

Although federal law does not require private parties to proactively search for CSAM, most, if not all major ISPs do, including Google, the ISP at issue in Wilsons case. Once one of Googles employees identifies an image as CSAM, the company uses a proprietary technology to assign a unique hash value to the image. Google retains the hash value (but not the image itself), and its system automatically scans all content passing through Googles servers and flags any images with hash values that match it. Once an image is flagged, Goggles system automatically classifies and labels the image based on what it has previously determined the image depicts and sends the image with its label to NCMEC, along with the users email address and IP addresses. NCMEC then sends the images and identifying information to local law enforcement, based on the IP address.

In Wilsons case, Googles automated system flagged four images attached to one of his emails. No Google employee ever looked at the exact images attached to Wilsons email. Google forwarded them to NCMEC, and NCMEC sent them to San Diego law enforcement. There, an agent opened the images and confirmed they were CSAM without a warrant.

Wilson filed a motion in federal court seeking to suppress the four images as well as evidence later seized from his online accounts and his home, arguing they were products of an unconstitutional warrantless search. The court denied Wilsons motion based on a somewhat obscure exception to the Fourth Amendment called the private search doctrine.

The Private Search Doctrine

Almost every court to squarely address the issue has held the Fourth Amendment protects electronic communications from warrantless searches. However, the Fourth Amendment only applies to government searches; it does not prohibit private parties from searching through your stuff and turning over what they find to the police, which is what happened here.

The private search doctrine holds that law enforcement doesnt need a warrant to search through your stuff if a private party has already searched it and the officer doesnt search through anything more than that private search. For example, in one classic case, an inadvertent recipient of several film reels read the descriptions of the films on their canisters (but didnt view the films), believed them to be obscene, and turned them over to the FBI. The FBI viewed one of the films without a warrant and charged the defendant. The Supreme Court held the FBI exceeded the scope of the private partys search when it did more than just look at the labels on the film canisters. Because it did so without a warrant, the search was unconstitutional.

In this case, the district court held that when the agent opened and viewed the images attached to Mr. Wilsons email, he did not expand the search beyond Googles automatic scan in any meaningful way. This was because the agent only had access to the four images previously identified by Google. Also, based on Googles stated reliability of its automated scanning system, the court decided it was a virtual certainty that the images attached to Wilsons email were identical to previously flagged CSAM, and therefore conveyed illegal content and nothing more.

The Ninth Circuit Opinion

The Ninth Circuit disagreed. It held that opening and viewing the images allowed the government to learn new, critical informationnamely what exactly was depicted in each imagethat it used to obtain a warrant to search Wilsons residence and then to prosecute him. The court noted further noted that Fourth Amendment rights are personal; even if the images attached to Mr. Wilsons email were exact duplicates of images previously identified by a Google employee, they were still different images. No Google employee looked at the exact images attached to Wilsons email, so the agents actions in opening and viewing those images were different from Googles purely automated search.

The Twist

The Ninth Circuit is not the only appellate court to weigh in on the governments review of Mr. Wilsons images; the California Court of Appeal did as well and came to the opposite conclusion.

Wilson was charged in both federal and California state court. The charges were different in each case, and they proceeded on their own timelines, but both cases involved the same search of Wilsons email attachments. Mr. Wilson filed motions to suppress the evidence in both cases, making similar arguments. The California Court of Appeal issued its opinion in November 2020, months before this recent Ninth Circuit opinion, and held the government did not meaningfully expand Googles private search in any manner that would violate Wilsons Fourth Amendment rights. The California appellate court upheld Wilsons sentence of 45 years to life, and the California Supreme Court denied review.

This means two appellate courts with overlapping jurisdiction over the same search are in conflict with one another, which is highly unusual. Wilsons state lawyer has petitioned the U.S. Supreme Court for review (certiorari) of the state case, and the Court is planning to consider taking it this week. In Wilsons federal case, the government has asked for more time to figure out its next steps.

Theres More

In the amicus brief we filed in Wilsons case, we took on a separate argument that often arises in these kinds of casesthat Wilson lacked a reasonable expectation of privacy in the images because he agreed to Googles terms of service, which stated the company would scan his email for illegal content.

As we argued in our brief, a companys TOS should not dictate your constitutional rights, because terms of service are rules about the relationship between you and your email providernot you and the government. A court ruling to the contrary could affect far more than child sexual assault material cases: on this theory, anyone whose account was shut down for any violation of a TOS could lose Fourth Amendment protections over all the emails in their account.

The Minnesota Supreme Court is currently considering this argument in a case called State v. Pauli, which will be heard by the court next week. We weighed in in that case too, and you can read more about that here.

We will continue to follow these cases and weigh in as necessary to protect our right to privacy in our electronic communications.

More here:
In U.S. v Wilson, the Ninth Circuit Reaffirms Fourth Amendment Protection for Electronic Communications - EFF

In 2019, a California appeals court said a police officer may always enter a suspect's home without a warrant if the officer is in "hot pursuit" and has probable cause to believe the suspect has committed a misdemeanor.

In June, the U.S. Supreme Court gave that decision the benchslap it deserved. "We are not eagermore the reverseto print a new permission slip for entering the home without a warrant," declared Justice Elena Kagan inLange v. California.

The case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange's car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer's lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.

The state has "argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry," Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that position ran afoul of both SCOTUS precedent and the Fourth Amendment's common law roots.

"On many occasions, the officer will have good reason to enterto prevent imminent harms of violence, destruction of evidence, or escape from the home," Kagan wrote. "But when the officer has time to get a warrant, he must do soeven though the misdemeanant fled."

The common law origins of the Fourth Amendment commanded the same result. "'To enter a man's house' without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack 'the liberty of the subject' and 'destroy the liberty of the kingdom,'" Kagan wrote, quoting from a venerable British common law judgment. "That was the idea behind the Fourth Amendment."

Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority's reasoning as "absurd and dangerous," "hopelessly indeterminate," and likely to impede necessary police work.

Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.

Read the rest here:
A Good Day for the Fourth Amendment - Reason

The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBIs behavior. The feds have not revealed the existence or identity of this informant; rather, the Times reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation or flip a person who is already in the group and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the governments version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home or breaking it down bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause, and to protect the privacy and security of persons, houses, papers, and effects by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, must be based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, your office or your cellphone, but they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The governments argument is that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendments protection of persons. Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and by the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage were happening at the Capitol and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them even though his presence at the scene was unconstitutional and whose testimony contradicts the prosecutors narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers value judgement that the privacy of all persons is a greater moral good than the governments convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Judge Andrew P. Napolitano is a nationally syndicated columnist.

Link:
OP-ED: On Jan. 6, what did the FBI know? - Observer-Reporter

ANALYSIS/OPINION:

The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators plans beforehand and his observations of events in the building in real-time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that his colleagues had no plan to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The informants presence as a de facto federal agent at the scene before, during, and after the commission of what the government considers serious felonies raises serious constitutional questions about the FBIs behavior. The feds have not revealed the existence or identity of this informant; rather, the Times reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation or flip a person already in the group and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, mainly if his knowledge and observations are inconsistent with the governments version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home or breaking it down bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause and to protect the privacy and security of persons, houses, papers, and effects by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, office, or cellphone. Still, they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The government argues that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendments protection of persons. Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage was happening at the Capitol, and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them even though his presence at the scene was unconstitutional and whose testimony contradicts the prosecutors narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and the federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers value judgment that the privacy of all persons is a greater moral good than the governments convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

Read more here:
On Jan. 6, what did the FBI know? - Washington Times