Category Archives: Fourth Amendment

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

As we flaggedlast week, the Justice Departmentsent a letterto publishers of A Warning,a book set to be released Nov. 19 by an anonymous senior official in the Trump administration who is believed to be the same person who published an anonymous 2018op-edin the New York Times. Inthe letter, Joseph H. Hunt, assistant attorney general of the Justice Departments Civil Division, warns that the books publication may violate the officials legal obligations, including one or more nondisclosure agreementsthat the official may have signed if the author is indeed a current or former senior official in the Trump administration.

Hunt states that the nondisclosure agreements are routinely required with respect to information obtained in the course of ones official responsibilities or as a condition for access to classified information.The letter goes on to say that the agreements typically require that any written work potentially containing protected information be submitted for pre-publication review.

Hunt appears to be referring to both pre-publication reviewrequirements in agreements officials sign to access classified information and nondisclosure agreements that the administration hasreportedly requiredofficials to sign that are not limited to classified information. The Knight First Amendment Institute at Columbia Universityhas challengedthe former types of agreements,providing a helpful chartdetailing which agencies typically require pre-publication review, and what that process looks like. Regarding the latter agreements, there are questions as to whether they would be enforceable.

For the traditional national security pre-publication review agreements, Hunt cites a case calledSnepp v. United States, which upheld the application of constructive trusts,allowing the government to collect proceeds from book sales when the author failed to submit the book for advance review.

The case centered on a former CIA employee who published a book in 1977 called Decent Interval,which included his critical observations on the governments involvement in Vietnam. In the lawsuit, the government asserted that the books author, Frank Snepp, had signed a secrecy agreementobligating him to submit any manuscript he wrote to the government for pre-publication review. Snepp refused to do so before publishing the book with Random House, and the government sued him for breach of contract in the U.S. District Court for the Eastern District of Virginia. The government sought to obtain the rights in and profits from the book.

On appeal of the district courts decision in favor of the government, Reporters Committee attorneys argued in briefs filed with theU.S. Court of Appeals for the Fourth Circuitand the U.S. Supreme Court that requiring employees to agree to pre-publication review as part of their employment contracts violated the First Amendment. [I]f this so-called contractand the remedies sought to enforce it are upheld this Court will have fashioned a civil Official Secrets Actdoctrine which may be imposed by contracton any government employee and will result in the most severe censorship of government information,the Fourth Circuit brief noted.

Even though the government conceded that Snepps account did not reveal classified or non-public information obtained during his employment, the appeals court ultimately upheld the lower courts ruling against Snepp. The Supreme Court alsoheldin favor of the government, saying, Undisputed evidence in this case shows that a CIA agents violation of his obligation to submit writings about the Agency for prepublication review impairs the CIAs ability to perform its statutory duties.

This case then paved the way for the government to file similar lawsuits against other former employees. In September, the DOJ filed alawsuitagainst former National Security Agency contractor Edward Snowden seeking to recoup profits from his book, Permanent Record,based on his failure to submit the manuscript for pre-publication review.

According to ABC News, the publishers of A Warninghave so farrefusedto provide any information to the Justice Department. The New York Times reports that the publishers havepledged and taken stepsto maintain the authors anonymity.

Of course, this is more a national security issue than a straight technology story, but, increasingly, issues involving anonymous speech are wrapped up in technology as so much of our communications go digital. Given the potential implications for anonymous journalistic sources, the TPFP team will continue to follow these types of matters.

Lyndsey Wajert

We have anupdatefrom the city of Fullerton, Californias hackingcase against local bloggers for allegedly accessing the contents of a Dropbox account the city shared with various records requesters, including one of the defendants: A California court of appeals issued a temporary stay of a lower courts gag orderpreventing the continuing publication of the citys documents.Last week, the Reporters Committee filed anamicus briefin support of the bloggers, highlighting the citys misuse of hacking laws and the potential harm it could pose to newsgathering.

Major tech platforms aredividedon how to moderate content from users speculating about the identity of the whistleblower whose complaint set off the impeachment inquiry. While Facebook and YouTube are removing references to the alleged CIA officers name and photo, Twitter has stated it would permit certain references. Twitters spokesperson said, Per our private information policy, any tweets that include personally identifiable information about any individual, including the alleged whistleblower, would be in violation of the Twitter Rules.TheTwitter policypermits sharing information that is publicly available elsewhere, in a non-abusive manner.(Some publications and activists have named the suspected whistleblower.) Separately, Rep. Eric Swalwell (D-Calif.)warnedvia Twitter that he will introduce legislation that could impose criminal liability on individuals who out a whistleblower.

The Justice Departmentchargedtwo formerTwitter employeeswith acting as unregistered foreign agents for Saudi Arabia, accusing them of accessing information on dissidents who used the platform. One of the former employees has been accused of accessing the personal information of thousands of users, including the account of a prominent dissident who was close to Jamal Khashoggi. The United Nations Special Rapporteur for extrajudicial, summary, or arbitrary killingsfound in Junethat Khashoggi, a Washington Post Global Opinions contributing columnist and former broadcaster in Saudi Arabia, was the victim of a premeditated extrajudicial execution, for which the state of Saudi Arabia is responsible.

The Trump administration ismoving forwardwith plans to set up a new National Vetting Center that would permit immigration agencies to access classified information consolidated from sources including the National Security Agencys electronic communications surveillance programs and human intelligence collected by the CIA. Critics have been concerned about mission creepat the center and the potential for it to target certain populations for special scrutiny.

At a Nov. 6 Senate Judiciary Committeehearing, Trump administration officials called for permanent reauthorization of the current business recordsprovision in foreign intelligence surveillance law, which was significantly expanded by the USA Patriot Act in 2001 and then amended in the 2015 USA Freedom Act. The latter passed following revelations that the provision was being used to collect telephone metadata in bulk. A bipartisan group of senators pushed back against a permanent renewal, expressing the most skepticism about reauthorizing the authority that would permit broad metadata collection, which survived, with some changes, in the Freedom Act. The NSA paused the program because it wasplaguedby compliance issues.

A federal court in Bostonruledon Nov. 12 that the search of electronic devices without reasonable suspicion of crimeviolates the Fourth Amendment. Lawyers for the American Civil Liberties Union and the Electronic Frontier Foundation brought the lawsuit on behalf of 10 U.S. citizens who traveled internationally and said U.S. border agents conducted illegal searches of their smartphones and laptops. The Reporters Committee, along with the Knight First Amendment Institute, filed a friend-of-the-courtbriefin support of the plaintiffs, detailing how suspicionless searches of electronic devices at the border chill newsgathering activity.

The U.S. Court of Appeals for the Ninth Circuitdeniedprofessional networking site LinkedIns petition for rehearing by the entire bench in a Computer Fraud and Abuse Act case against a company accused of scrapingpublic information from LinkedIn profiles. This ruling leaves in place the Ninth Circuits prior affirmation of a lower courts preliminary injunction prohibiting LinkedIn from blocking access to publicly available LinkedIn profiles. More broadly, as the Reporters Committeeexplainedin September, the rationale behind this decision could be extended in other cases to find that scraping publicly available information, an important tool in data journalism, does not violate the CFAA.

Gif of the Week: Well, its classified.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.

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This Week in Technology + Press Freedom: Nov. 17, 2019 - Reporters Committee for Freedom of the Press

TORRINGTON Students at Torrington High School got a surprise break from their classes Friday morning.

School administrators went room by room, asking students to leave everything where it was and head to a waiting area. While the students were out, human and K9 officers from the Torrington Police Department, Cheyenne Police Department and the Wyoming Highway Patrol conducted a search of school facilities for drugs.

The effort, a collaborative plan between Goshen County School District No. 1 Superintendent Ryan Kramer and Torrington Police Chief Tim Hurd, resulted in the issuance of six search warrants and a 16-year-old male in custody Friday on charges of possession of marijuana, tobacco and drug paraphernalia.

Officials werent responding to a rash of drugs running rampant in the hallways at THS, Hurd and Kramer said. Rather, they want to prevent just such a situation from taking place.

In my previous district, we took preventative measures to proactively bring in search dogs to look for narcotics that might be in the building, Kramer said. I talked to Chief Hurd and we discussed the possibility of doing that here in our district and what schools we could coordinate.

Considerations of student safety and student rights were foremost in Kramers and Hurds thoughts when they were planning the search, Kramer said. Students and police both two- and four-legged officers were to have no to minimal contact, he said.

At no time were individual students singled out for detailed search or questioning, until and unless one of the K9 officers indicated to his or her human partner there was something in a backpack, cabinet, drawer or vehicle indicating probable cause that warranted a further search, Kramer and Hurd said. At that time, search warrants would be secured through proper channels.

Students rights are really important, Kramer said. We are searching the school facility and vehicles that are parked on school property.

Cheyenne attorney Bruce Moats said schools generally are permitted to conduct this type of search, but thats its a sensitive area as far as student rights are concerned.

Courts have recognized less of a a fourth amendment right for students in a school setting, Moats said. But they havent ruled specifically on K9 searches.

Critics of this raise the fact that dogs can have false alerts, he said. But the courts also said school could allow suspicion-less searches as the guardians of the children entrusted to their care.

Surprise search

Hurd and Kramer were the only ones who knew the specifics of the plan. Friday morning, emails were sent to administrators and parents and a message was sent via the district alert system, Kramer said, to prevent any concerns about student safety. A post on the districts social media site said THS was placed in soft lock-down.

Kramer said, during a soft lock-down, students and teachers are to remain in the classroom while instruction continues. They are allowed to leave in specific situations - for an appointment or to use the restroom, for example, he said. But they must be escorted by a school administrator, Kramer explained.

Letting people know there was not an emergency situation at the school was of even greater importance following a school shooting the day before in California, Kramer said.

We wanted to let parents know this wasnt a safety issue, he said. Any time we see law enforcement at school buildings, our blood pressure increases. We worry about danger for our kids.

We wanted to let them know it was a drill activity for the purpose of finding narcotics, Kramer said. There was no specific danger or specific threat for any students or staff.

Experience

Both Hurd and Kramer have experience with similar programs at previous jobs Kramer leading a school district in Iowa and Hurd as chief in Glenrock. In both instances, taking drug interdiction K9 officers into the schools had a positive effect. Juvenile crime in Glenrock, for example, dropped precipitously after Hurd instituted the routine, surprise search efforts there, he said.

The last thing we want to do is make any arrests, Hurd said. What we really want to do is show the young adults who are students in these schools and the parents were interested in keeping them off drugs.

Were not here for sanction purposes, he said. Were here to assist the schools, to make sure the parents know were not going to tolerate narcotics in their schools and they can send their students to a safe school where narcotics are not going to be if we have anything to say about it an issue or a problem for them.

While the surprise searches work to address the bigger picture of drugs in schools, Kramers experience has led him to believe they are only a tool to address the issue of drug use by teens.

I dont think this is the primary tool I would use to alleviate that problem, Kramer said. It serves the purpose for prevention, getting that public mind out there. I dont think, in isolation, it would ever have an effect on its own on student drug use or drug use in general.

Toolbox

Thats why the new searches arent the only way local schools are working to curtail drugs on campuses, student drug use and other issues that might drop youth in the hands of the legal system, Kramer said. Another program this one a collaboration between the district, local police and the Goshen County Attorneys office aims to take one step beyond into intervention.

Representatives of those three entities meet weekly, to decide how to deal with a variety of issues involving young people who may come afoul of the law both in and out of school, Kramer said. The results of those meetings covering everything from drugs to drinking to truancy are used to hopefully direct students back to the proper path, he said.

Its my hope we can either get students the help they need if we do find anything, take those active rolls, Kramer said. We take those preventative measures, whatever steps we can, to ensure that.

As a school district, were looked upon as the education vehicle, he said. Law enforcement has their duties, what theyre required to do and what their expectations are. We kind of have to mesh those in a collaborative effort and it doesnt always fit perfectly.

But the legal system could be an only first step available in some instances to get those young people the help they need, Hurd said.

Making an arrest is how we get an individual into the system so they can get that treatment, so they can get that intervention, he said. Were trying to get these students or these people who have these drugs into the system so they can be court ordered to get treatment.

And Hurd believes having that presence in the school, even if some could perceive it as confrontational, can go a long way to demystify law enforcement for the students. And its part of a larger message Hurd and Kramer both want to convey.

They get to know you, they get to know who you are, Hurd said. Were here for you. If you havent done anything wrong, you have nothing to worry about.

Were here to make sure drugs dont become an option for you, if we have anything to say about it. And were here to let your parents know youre in a safe environment and to let everyone in the community know were working proactively to keep you and all the other students safe.

See the rest here:
Surprise search nets warrants, arrest - The Torrington Telegram

The following editorial appeared in the Los Angeles Times on Nov. 15:

LOS ANGELES (Tribune News Service) International travelers grudgingly accept that their cellphones or laptops might be handled and given a cursory inspection at an airport or border crossing. But some travelers, including U.S. citizens, have had the contents of their electronic devices including family photographs and personal information scrutinized by border agents.

A federal judge in Boston rightly held this week that such searches may be carried out only if the authorities have a reasonable suspicion that the devices contain contraband such as classified national security information or child pornography.

U.S. District Judge Denise J. Casper ruled in a case brought by 11 plaintiffs 10 U.S. citizens and one lawful permanent resident whose devices had been searched when they entered the country. Among them was a Muslim woman who twice had her iPhones searched despite her objection to having Customs and Border Protection officers view photographs of her and her daughters without their headscarves.

Traditionally the courts have treated searches at the border as an exception to the Fourth Amendments ban on unreasonable searches and seizures because of the nations interest in intercepting contraband. But Casper noted that the exception was meant to cover routine searches, not the intrusive inspection of electronic devices that are notable for the vast quantity of personal information they contain.

Casper isnt the first judge to rule that border searches of electronic devices require reasonable suspicion. In 2013, the U.S. 9th Circuit Court of Appeals established that standard even as it upheld the forensic analysis of the laptop of a man returning from Mexico that turned up images of child pornography. (The court said that the fact that the mans name was on a watch list of sex offenders had created reasonable suspicion.)

But its significant that this weeks ruling follows and refers to a 2014 Supreme Court decision that broke new ground in recognizing that searches of devices such as smartphones and laptops pose a special threat to privacy. As Chief Justice John G. Roberts Jr. wrote in that ruling: Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.

The 2014 ruling involved the search of a cellphone belonging to a person under arrest, and the court held that before trawling through its contents police had to obtain a search warrant by showing they had probable cause to believe that a crime had been committed.

Because of the special circumstances of border searches, Caspers ruling requires only reasonable suspicion, a lesser standard that CBP and Immigration and Customs Enforcement say they already employ in conducting so-called advanced searches of electronic devices, those that involve connecting external equipment to a device. Caspers ruling rightly requires reasonable suspicion before a border agent can conduct even a basic search of a devices contents.

This ruling recognizes that trawling through a travelers phone or laptop for no reason is a 21st century violation of the Fourth Amendment. When a suitable case presents itself, the Supreme Court should make the same call.

Visit the Los Angeles Times at http://www.latimes.com. Distributed by Tribune Content Agency. 2019 Los Angeles Times.

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Editorial Los Angeles Times: Border agents shouldn't be allowed to trawl through the contents of your phone - NNY360

The Fourth Amendment has received significant attention in recent court rulings involving surveillance, electronic data retrieval, and other types of technology. Two rulings issued on October 21, 2019 demonstrate how difficult it can be to anticipate the outcome of Fourth Amendment disputes relating to technology. In one, the Georgia Supreme Court found the warrantless search of electronic data from a car following a fatal accident to be unconstitutional. In the second, the U.S. Court for the Western District of Tennessee held that the Fourth Amendment permitted the warrantless placement of a government surveillance camera on a mans private hunting and fishing property.

Mobley v. State (Ga. Oct. 21, 2019)

In Mobley, the Georgia Supreme Court ruled that a trial court erred in denying a motion to suppress evidence that law enforcement retrieved from the electronic data recorder in the defendants car. In coming to this conclusion, the Mobley court ruled that regardless of any reasonable expectation of privacy the physical entry of a police officer into the defendants car to retrieve the electronic data was a search for Fourth Amendment purposes.

The Mobley case arose after a car driven by defendant Mobley collided with a car that pulled out of a private driveway; both occupants of the latter car died. Before the cars were removed from the accident scene, a police investigator entered both cars, and attached a crash data retrieval device to data ports in the cars to download available data. The data revealed that shortly before the collision, Mobleys car was traveling almost 100 miles per hour. The next day, law enforcement applied for a warrant to seize the electronic data recorders. The warrant was issued, but no additional data was retrieved from the recorders. A grand jury indicted Mobley on a number of counts, including vehicular homicide.

Mobley moved to suppress evidence retrieved from the data recorder, arguing that it was an unreasonable search and seizure in violation of the Fourth Amendment. The trial court denied the motion, finding that because police obtained a warrant for the data the following day, and the warrant application did not rely on data from the device, that data would have inevitably been discovered by investigators.

Mobley appealed, and the Georgia Court of Appeals affirmed. The appeals court found Mobley had no reasonable expectation of privacy in the data, as much of it such as approximate speed and whether a driver applied the brakes could be observed by a person looking at the car based on speed reduction or brake light activation.

Last week, the Georgia Supreme Court reversed. Noting that the Fourth Amendment is concerned with government trespasses upon the rights of individuals to be secure in their persons, houses, papers, and effects, the court determined that the retrieval implicated Mobleys Fourth Amendment rights, regardless of any reasonable expectation of privacy. The court pointed out that while the reasonable expectation of privacy inquiry established in Katz v. United States, 389 U.S. 347 (1967) is one way of determining whether the Fourth Amendment is implicated, that analysis did not replace the traditional trespass test. Because entering Mobleys vehicle was trespassory in nature, the reasonable expectation of privacy inquiry was unnecessary.

Georgias highest court then concluded that because the data retrieval occurred without a warrant it was an unreasonable search and seizure that violated the Fourth Amendment. Also, because the record did not show the law enforcement officers were actively pursuing a warrant at the time the data was retrieved, the retrieval did not fit into the narrow inevitable discovery exception. Thus, the court held that the motion to suppress should have been granted.

In addition to re-affirming the vitality of the trespassory inquiry post-Katz, Mobley also demonstrates that adherence to criminal procedure must not take a back seat to the speed and convenience of digital data collection.

Hollingsworth v. United Sates Fish and Wildlife Service, et al. (W.D. Tenn. Oct. 21, 2019)

While Mobley may be hailed by privacy advocates, the Western District of Tennessees ruling in Hollingsworth is likely to be less enthusiastically embraced, despite being grounded in solid precedent. In Hollingsworth, the court dismissed constitutional claims against the U.S. Fish and Wildlife Service, an agent for the service, and an agent of Tennessees Wildlife Resources Agency based on a camera positioned on plaintiff Hollingsworths property to surveil him. The court found that the Fourth Amendment was not implicated because although the camera was on plaintiffs property, it was in an open field rather than on the property surrounding plaintiffs home.

The case arose after Hollingsworth found a camera mounted to a tree in the interior of property he used for hunting and fishing. Hollingsworth removed the camera and found pictures of men he believed to be the defendants on the SD card it contained. Hollingsworth sued the individual agents and their respective agencies for Fourth Amendment violations and trespass, although the claim against the state wildlife agency was dismissed on sovereign immunity grounds. The remaining defendants moved to dismiss.

The court observed that while the Fourth Amendment protects houses against unreasonable searches, that protection extends only to the dwelling and the surrounding land (known as the curtilage) where privacy expectations are most heightened. However, the Fourth Amendment does not prohibit all investigations on private property, such as in those areas which are more easily accessible to the public and less intimate to ones home. Such areas beyond the curtilage are considered open field, and intrusion upon those areas is not considered a search of ones house.

As a result, the court found that even though Hollingsworth found the camera in a position designed to record his entrance and exit from his property, and even though his property was posted and landlocked by other parcels, the use of the camera did not constitute a Fourth Amendment violation. This was true even where the defendants had to commit a trespass to reach the area where they placed the camera, because the Fourth Amendment protects a smaller scope of property than trespass law does. The court also explained that prior cases had held that areas outside of the curtilage still could be considered open field despite efforts to prevent unwanted guests from intruding, such as the use of fences, locked gates, and no trespassing signs. Further, the court explained that a reasonable expectation of privacy analysis was unnecessary, because courts have consistently held that individuals cannot have such an expectation in open field property. Finally, the court dispatched with Hollingsworths argument that the use of a surveillance camera to observe his movements was analogous to the GPS tracking of a persons movements addressed in U.S. v. Jones, 565 U.S. 400 (2012), because the Jones holding relied on the determination that a car was an effect for Fourth Amendment purposes and thus in the zone of constitutional privacy, whereas an open field is not.

Conclusion

Although it may seem illogical that the Fourth Amendment would tolerate the warrantless placement of a surveillance camera on an individuals property but not the use of information for which a warrant was obtained the next day, both decisions are grounded in long-standing precedent. Although neither vehicle data recorders nor surveillance cameras existed at the time the Fourth Amendment was drafted, the trespassory inquiry and open field doctrine are both sufficiently developed to adequately address new technology. Technological developments can pose issues where the law is ill-suited to adapt to novel issues, but for now, it appears that Fourth Amendment jurisprudence is flexible enough to tackle changing circumstances. However, had Hollingsworth involved, for example, a highly powerful zoom lens or drone, the argument against applying the open field doctrine might have been stronger.

See the rest here:
Courts continue to consider intersection of Fourth Amendment and technology: without a warrant, retrieval of car's electronic data unconstitutional,...

Next Monday, the Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. Glover. Glover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car? Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Glover touches on a conceptually rich Fourth Amendment question I have written about before, and I wanted to offer a few thoughts about different ways the Justices might approach it.

I. What is the nature of reasonable suspicion?

The most interesting part of Glover, I think, is that it raises a fundamental question about the nature of the reasonable suspicion testand of likelihood thresholds in Fourth Amendment law, such as probable cause, more broadly.

Here's the context. The norm in Fourth Amendment law is for every case on likelihood thresholds to be fact-specific. To learn what reasonable suspicion or probable cause mean, you start by reading what the precedents say the standards are. But the doctrinal statements of the standard are vague in isolation. To really learn the law, I think, you need to read a bunch of Supreme Court cases. After you read a bunch of cases, you get a what Karl Llewellyn would call a "situation-sense" for what kind of degree of plausibility the standards require.

This common-sense, totality-of-the-circumstances inquiry doesn't produce a lot of rules on what facts amount to enough suspicion. But both reasonable suspicion and probable cause become pretty predictable when you study Fourth Amendment law because they're based on a kind of feel that you learn to develop when you read the cases. Even thought the doctrinal tests can be vague in their words, every police officer and every judge with a criminal docket eventually develops a situation-sense of where the lines are. There are disagreements on occasion, but they're relatively rare.

II. The Unusual Feature of Glover

Glover is unusual because it involves a recurring fact pattern that is based on likelihoods likely outside our typical experience. First, the police see a car and run a license check. Second, the license check reveals that the registered owner has a suspended license. The question is, does the license suspension create reasonable suspicion to stop the car? It's harder to answer that based on our situation-sensethan it usually is in Fourth Amendment cases, I think, as it would seem to depend on dynamics that most people don't often encounter.

Consider the questions you'd want to think about. First assume that the case before you is is entirely typical and generic. To answer the typical case, you'd probably want to know two things. First, how often do non-owners drive an owner's car? And second, how frequently do people with suspended licenses continue to drive?

That's a start. But then you would want to know if the particular case before you is typical. While we might have answer for the odds in a typical case, any particular case might be quite different. Variation may be common. And that can change the odds.

Consider two examples. First, how often non-owners drive a car may vary based on the city or even the neighborhood where the car is found. Family size is one possible concern. In a town like Fresno where 37% of households include kids, there's a decent chance that teenage drivers might be driving the family car. In a city like San Francisco where only 16% of households have kids, that's less likely. Along the same lines, the kind of car might make a difference. I would guess that a new Porsche 911 is very likely to be driven by its registered owner. On the other hand, a family minivan likely would have more possible drivers.

The same dynamic applies to the rates at which people still drive after their licenses have been suspended. That plausibly varies based on the reasons why a particular jurisdiction suspends licenses. For example, Illinois may suspend your license if you don't pay your parking tickets. In California, on the other hand, they won't. I would imagine that people are particularly unlikely to stop driving when their licenses are suspended for unpaid parking tickets, either because they don't have the money to pay but need to drive or else they don't think unpaid tickets are a big deal. The key point, it seems to me, is that state or local policies can change the likelihood that spotting a car on the road when the owner's license was suspended means that a crime is afoot.

III. Three Conceptual Ways Forward

So how do you try to figure out if there is reasonable suspicion in Glover? In light of the above discussion, I think there are three basic conceptual approaches:

A. Continue to focus on the overall gestalt sense of whether there is reasonable suspicion. Under this approach, you would treat Glover like any other reasonable suspicion case. You'd try to get a rough sense whether in general an owner's suspended license will create reasonable suspicion when the car is spotted on the road. You would recognize some special cases will be different, as you might be in a place where those rough senses aren't justified or dealing with a particular car or time when you might expect a different result. But you'd reach the answer guided by the rough sense, the feel, of the likelihood.

B. Focus on the statistical likelihood of a typical case. Under this approach, you would want to know the typical empirics of how many cars there are per driver and how license suspensions affect driving patterns. You could then estimate a rough likelihood that a typical stop based on a suspended license is going to involve the suspended owner behind the wheel. You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

C. Focus on the statistical likelihood of that actual case. Under this approach, you would try to develop a statistical model of that particular stop. You would recognize that the likelihood of reasonable suspicion varies based on local factors, ranging from the jurisdiction to the neighborhood to the car to the time of day. As a result, instead of answering the likelihood of finding the driver behind the wheel in some generic case, you would try to figure out the likelihood of it based on all the kinds of local factors that would be known when the officer makes the stop. You'd then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

IV. We've Been Here Before: Florida v. Harris

At this point you're probably wondering: Hasn't this problem come up before? And indeed it has. I see a lot of conceptual similarities between Glover and a 2013 probable cause case, Florida v. Harris, 568 U.S. 237 (2013). In Harris, the state court below went for approach C. The U.S. Supreme Court reversed, adopting approach A.

Harris asked whether a positive alert from a drug-sniffing dog was sufficient to create probable cause that drugs were present in the car. As I see it, the dog's alert on the car was sort of like the license check that reveals the car owner's suspended license. It was a single triggering event, with the likelihood probably outside our everyday experience, which could vary in significance. The question in Harris was, how do you know when the alert was sufficient?

In the decision below, the Florida Supreme Court took option C above. That is, the Florida court assessed the statistical likelihood that each particular dog's alert created that particular probable cause. That approach required the government to produce a lot of information about that particular dog to be able to assess the reliability of its alerts. In each case, the Florida Supreme Court ruled, the State was required to

present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.

The U.S. Supreme Court granted cert and unanimously reversed. Instead of the Florida court's approach C, the U.S. Supreme Court took approach A.

According to Justice Kagan, writing for the majority, the Florida court's statistical approach had "flouted" the U.S. Supreme Court's guidance on probable cause that "rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach."

The Court's basic thinking was that well-trained drug-sniffing dogs are generally pretty reliable. Based on that, evidence of solid training was usually going to be enough:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

But it wouldn't be enough in every case, as a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses."

The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog's (or handler's) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 ("[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate"). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

V. Which Approach for Glover?

Enough wind-up. What should the Court do with Glover? My own view, consistent with the unanimous opinion in Harris, is that Approach A is the right path forward. That is, the Court should get a feel for the general likelihood that the owner is behind the wheel when the police learn that an owner's license is suspended but the car is on the road. No calculations or statistics are needed. As in Harris, it's more a matter of ball-park feel.

And as in Harris, that situation-sense shouldn't be the end of things. Whichever way the Justices see the default, the other side should be able to show that a particular case is special. If the Justices think that an owner-suspension alert normally creates reasonable suspicion, the defense should be able to show specific circumstances when it doesn't. If the Justices think that an owner-suspension alert normally fails to create reasonable suspicion, the government should be allowed to show when it does.

My own sense, I'll add, is that the owner-suspension alert ordinarily creates reasonable suspicion these days. That's largely the case because I think reasonable suspicion is a pretty low threshold. It's more than a hunch, but it's a lot less than probable cause. When the owner of a car has a suspended license but the car is on the road, it's certainly possible that someone else is driving. But my situation-sense is that, these days, it's ordinarily going to be reasonable suspicion. The owner of the car isn't supposed to be driving, but there's the car on the road. It's the kind of thing that a prudent officer would reasonably want to check out to make sure the owner isn't behind the wheel.

VI. The Problem With Fourth Amendment Statistics, and A Response to 17 States and to Professor Crespo

Why not adopt one of the statistical approaches, such as B or C above? The main reason is one I wrote about in this book chapter in 2012, Why Courts Should Not Quantify Probable Cause.

In that chapter, I argued that it's important not to try to quantify probable cause in order to measure it accurately. The basic problem is that you don't know what you don't know. When we quantify, we feel like we're being all scientific. But we're actually blinding ourselves to the intuitions needed to assess probable cause accurately. Using numbers, I argued, would provide a false sense of certainty that blinds us to the intuitions needed to assess probable cause accurately.

I think similar concerns make approaches B or C problematic in Glover. If you come up with a typical likelihood, approach B above, you don't know if a particular case is a typical example. You miss or don't appreciate all the reasons to think a particular case is different. And if you come up with a case-specific likelihood, approach C above, you end up misunderstanding when you have only a partial and inaccurate view of the relevant criteria and factors that misrepresents the odds. It feels scientific, as it has numbers and data. But this is a context in which I think the intuitive approach is more accurate.

This puts me in disagreement with some very interesting amicus briefs, I should add. First, an amicus brief of 17 states adopts approach B. It offers and analyzes empirical evidence of the general odds that a driver-suspension alert will mean that a suspended driver is behind the wheel. It's an interesting brief, and the general odds can help inform intuitions about general cases. But I don't think it can go beyond that.

I also end up in disagreement with Professor Andrew Crespo, who filed a solo amicus brief in Glover in support of the defendant. I think it's fair to say that Professor Crespo favors approach C. In his brief, he argues that the government must provide localized statistical data to establish that the owner-suspension created reasonable suspicion. In particular, he argues that the state should have to provide evidence of "how many times vehicles reportedly registered to unlicensed drivers are actually driven by those individuals when such vehicles are stopped in the relevant geographic area."

I disagree with Professor Crespo for the reasons flagged above. Among the difficulties, what is the level of generality for the "relevant geographic area"? It seems to me that the odds may vary along different geographic criteria, ranging from the state or city (which may determine suspension policies) to the neighborhood (which may be more or less family-friendly) to the specific road (which may be driven by people from different places). The odds also can vary based on non-geographic factors, such as the car (Porsche v. mini-van), the time of day (commuting time vs. night-time), the decade (are we moving to self-driving cars?), or the officer who decided to make the stop.

Even assuming the government can readily collect some kind of data, which is its own problem, it's hard for us to know which criteria matter. And I think that makes it hard to use data about those criteria to say whether a particular stop is one that was justified by reasonable suspicion.

As always, stay tuned. Glover will be argued next Monday, November 4th, 2019.

Link:
Reasonable Suspicion From Driver to Car: A Few Thoughts on Kansas v. Glover - Reason

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Two in three Americans live in the "border zone," a 100-mile stretch inland where some constitutional due process and privacy protections are functionally canceled in the name of border security. The zone includes entire states Delaware, Florida, Hawaii, nearly all of New England, and all but a tiny sliver of Michigan as well as about three in four of our 20 largest metro areas. Is the Trump administration trying to make it bigger?

The prospect seems obviously attractive to immigration hawks like White House senior adviser Stephen Miller, known to be the president's chief influence on border policy. Yet the possible suggestion of interest in expanding the border zone comes not from Miller but acting Commissioner of U.S. Customs and Border Protection (CBP) Mark Morgan, who joined President Trump on stage at a law enforcement conference in Chicago this week.

"We will be building 450 miles of big, beautiful wall by the end of 2020," Morgan said, implausibly. "With every mile of wall that's being built, I promise you, it's not just the cities and towns on the border. I always say: Every town, every city, every state is a border town, a border city, and border state."

Is that just a figure of speech? Because it's blatantly untrue unless the border zone goes national.

My suspicion here may seem unfounded, and I hope it is. But I think there are two good reasons to be wary.

The first is the nature of the border zone, which too few Americans realize exists. The Fourth Amendment protects our right "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures" and requires specific probable cause before search warrants are issued. But at the border, CBP agents are allowed to conduct searches of bags and vehicles without meeting those requirements. And in 1953, the Justice Department issued a regulation saying these relaxed rules apply within a "reasonable distance" from the actual border, a term the DOJ defined as 100 miles.

The 100-mile decision was made by unelected administrators. It wasn't open to public input, nor was it determined by our representatives in Congress. Nevertheless, the Supreme Court upheld the rule in 1976 in U.S. v Martinez-Fuerte, where the 7-2 majority wrote that usually law enforcement must have "individualized suspicion" to breach someone's privacy, but as long as the Border Patrol checkpoints are "reasonably located" (i.e. within the 100-mile range), agents can stop, search, and question motorists without any particular cause.

As the minority opinion noted, there's "no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied." The fact that CBP agents typically won't be able to establish probable cause by looking at a moving vehicle should not mean they get to ignore the Constitution. That's not how rights work, and this "papers, please" style of law enforcement is fundamentally un-American.

Yet even if you agree with the theory of the 100-mile rule, the practice is a disaster and sees CBP authority expanded well past what Martinez-Fuerte permitted. As Cato Institute scholar and former CIA analyst Patrick Eddington has detailed, CBP agents "elect to ignore the court's admonition in the Martinez-Fuerte ruling that 'any further detention ... must be based on consent or probable cause.'" They've "used violence to remove motorists from their vehicles when they decline to answer questions after asserting their rights;" expanded their searches to planes, buses, and trains; and used the checkpoints in service to the wars on drugs and terror. (No terrorists have ever been arrested this way.)

The upshot, as the ACLU has reported in its extensive coverage of the border zone, is CBP "agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing, and often in ways that our Constitution does not permit." And in the years since the 100-mile rule was created, Border Patrol agents have grown from a force of 1,100 to around 21,000, with an estimated 170 permanent "interior checkpoints." What may have been relatively innocuous at the start is now a major problem.

That brings us to the second reason to be worried by Morgan's remark: The border zone as it exists today was implemented with remarkably little pushback. The Border Zone Reasonableness Restoration Act of 2019 would reduce the zone to 25 miles, but that would still include most major cities in the current designation and it has no legislative traction anyway.

If neither Congress nor the Supreme Court objects to this status quo, why would we expect them to object to extending the border zone to include the final third of the population? If it's fine to have CBP infringing around 200 million people's Fourth Amendment rights, what's another 100 million?

It's not true that every town, every city, every state is a border town, a border city, and border state. The unchallenged corruption of the border zone gives us good cause to be leery of any talk that suggests they are.

View original post here:
Is Trump trying to unleash the Border Patrol on all of America? - The Week

American whistleblower Edward Snowden is living a life of exile in Russia because he shared thousands of top-secret government documents with journalists. But six years after he exposed how the US government surveils the digital lives of everyday Americans, Snowden is not just worried about the powers of government agencies like the National Security Agency (NSA), hes concerned about big technology companies, too.

In an upcoming interview with Recodes Kara Swisher on the Recode Decode podcast, Snowden said he thinks its a mistake to see the NSA as a bigger threat to privacy than tech companies.

Facebooks internal purpose, whether they state it publicly or not, is to compile perfect records of private lives to the maximum extent of their capability, and then exploit that for their own corporate enrichment. And damn the consequences, Snowden told Swisher. This is actually precisely the same as what the NSA does. Google ... has a very similar model. They go, Oh, were connecting people. They go, Oh, were organizing data. Although, Snowden said, these companies still dont know as much as the government, which can gather information from all of the many tech platforms.

Snowden was talking to Swisher about the publication of his new book, Permanent Record, in which he details his journey from an idealistic young national security contractor, eager to help protect the US from foreign threats in the aftermath of 9/11, to a disillusioned whistleblower. The massive government surveillance effort he revealed in 2013 wouldnt be possible without the data-gathering that tech companies do in the first place, Snowden said.

The more Google knows about you, the more Facebook knows about you, the more they are able ... to create permanent records of private lives, the more influence and power they have over us, Snowden told Swisher. There is no good reason why Google should be able to read your email. There is no good reason why Google should know the messages that youre sending to your friend. Facebook shouldnt be able to see what youre saying when youre writing to your mother.

Snowden also pointed out that the Fourth Amendment which protects citizens from searches unless law enforcement has a warrant or probable cause only applies to government, not to companies. So while the FBI might need a warrant to probe your inbox, theres no constitutional barrier to a company like Facebook searching and retrieving peoples private information without a judges approval.

The former NSA systems engineer said to better protect people from being exploited by the data collection of major tech companies, the US should have software liability laws. These would be similar to consumer product liability regulations that can hold companies and executives responsible for selling physical goods that harm people.

We have serious liability laws in every other sector, said Snowden. If you produce medicine and put it on the shelves and your baby aspirin kills babies, you get sued. You go to jail, right? If you build a car and it catches on fire and kills people, you get sued, your company might get shut down, you might go to jail. We have no software liability laws in the United States.

Recently, companies such as Facebook, Google, and Amazon have come under fire by regulators for their perceived negative effects on society from alleged monopolistic practices to data breaches.

When you look at technologists as a class, were at a fork in the road, said Snowden. There is a class led by Mark Zuckerberg that is moving toward the maximization of technological power and influence that can be applied to society because they believe they can profit by it or, rightly or wrongly, they can better use the influence that their systems provide to direct the world into a better direction. ... And then you have this other fork in the road where there are people ... [who] go, The advance of technology is inevitable and technology can do very good things for the world, but we need to understand that there must be limits on how that technological power and influence can be applied.

Snowden also pushed back on the idea that people dont care about their data privacy because they still use services like Facebook that have notoriously failed to steward user data.

People actually care. They care very much. But they feel powerless to change it, said Snowden, so they adopt a position of laissez-faire, I dont care, as a psychological coping mechanism, because otherwise you are being victimized, and thats a difficult thing to deal with.

Read this article:
Edward Snowden says Facebook is just as untrustworthy as the NSA - Vox.com

One of the largest gun collections in Cumberland County belongs to the sheriffs office, and thanks to a recent change to the state Protection From Abuse law, that collection is growing.

The sheriffs office has long been responsible for collecting weapons required to be surrendered because of PFA orders. However, a new law designed to better protect victims of domestic violence contained two provisions that increase the number of guns the office needs to store.

First, the law which was signed by Gov. Tom Wolf in October 2018 and became effective in April 2019 mandates that all, rather than some, defendants who receive a final PFA order relinquish their firearms while the order is active. Second, it greatly restricts the third-party safekeeping option to firearms dealers and attorneys, banning the practice of giving them to friends and relatives.

Those changes were recommended by advocates for victims of domestic violence, who cite a study showing that domestic violence victims are five times more likely to be killed if their abuser possesses a firearm.

Some counties have received so many more guns thanks to the law that they have encountered storage issues. That isnt a problem in Cumberland County, both because the county has ample storage space available and because the sheriffs office anticipated the laws passage, according to Sgt. Bryan Ward of the Cumberland County Sheriffs Office.

I was fortunate enough to be included in various capacities before the law ever came out, so we knew it was coming, Ward said.

All weapons are stored in an undisclosed location but on county property, he said. He had little difficulty finding storage space that could be altered to meet security requirements for housing firearms, but Cumberland County is absolutely the minority in that regard.

The county is storing about 350-375 guns, a number that has risen in the past three to four years even before the changes to the PFA law, he said. Hes seen about a 25 percent increase in the rate at which guns are turned into the sheriffs office since that law passed earlier this year.

When a defendant is served with a final PFA order, he or she has 24 hours to turn firearms and other weapons over to law enforcement or invoke the narrow third-party safekeeping exception. Weapons can be turned over to the sheriffs office, state police or a municipal police station.

Almost all PFA defendants at least make an appearance of complying with the law, Ward said, providing a list of firearms they possess and surrendering those guns. A defendant who does not turn over all firearms is guilty of a second-degree misdemeanor.

Im sure were lied to a lot, but the (weapons) are not in plain view, and I cant search the house, Ward said.

Pennsylvania does not typically permit the sheriffs office to perform a search of the defendants house and seize weapons because of Fourth Amendment privacy concerns. A 2016 Joint State Government Report said that can nonetheless create compliance problems.

Once the sheriffs office has possession of the weapons, they must be physically kept in storage by the sheriffs office and cannot be used for any purpose, Ward said. The law holds the sheriffs office responsible if anything happens to those weapons.

When a PFA expires, Ward searches the Pennsylvania Instant Check System database to ensure the person can lawfully possess a firearm. He will then contact the defendant and schedule a time for the person to regain possession of their gun.

Daniel Walmer covers public safety for The Sentinel. You can reach him by email at dwalmer@cumberlink.com or by phone at 717-218-0021.

See original here:
Strengthened PFA law means more guns turned in to Cumberland County sheriff's office - The Courier-Express

Last week, the Office of the Director of National Intelligence released three redacted opinions of the Foreign Intelligence Surveillance Court (also known as the FISA Court) and the FISA Court of Review (FISCR). In the first opinion, the FISA Court held that the FBIs procedures for accessing Americans communications that are incidentally collected under Section 702 of FISA violated both the statute and the Fourth Amendment. The government appealed, and in the second opinion, the FISCR upheld the FISA Courts decision. The FBI was forced to revise its procedures to conform with the Courts ruling, and in the third opinion, the Court approved the revised procedures.

The government will no doubt try to sell this as an oversight success story. After all, the Department of Justices audits had detected instances of FBI non-compliance with legal requirements, and the Department reported those instances to the FISA Court. The Court solicited the assistance of amici and adopted their position in significant part. It ordered remedies that the FBI is now required to implement. And all of this became public because Congress in 2015 required the disclosure of significant FISA Court opinions. The system worked, right?

I see a very different story. This is now the fourth major FISA Court opinion on Section 702 in 10 years documenting substantial non-compliance with the rules meant to protect Americans privacy. The opinion, moreover, reveals that the FBI is conducting literally millions of backdoor searchesincluding so-called batch queries that rest on the same discredited legal theory used to justify the NSAs bulk collection of Americans phone records. Despite the enormous implications for Americans privacy and the governments dismal record, the remedy suggested by amici and imposed by the Court was just more record-keeping. And the government sat on the opinion for a year, hoping for an appellate victory that would help mitigate the PR damage from disclosure.

Background: Section 702s Troubled History

To put the Courts recent opinions in context, some background is necessary. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), passed in 2008, the National Security Agency (NSA), operating inside the United States, is authorized to collect communications of foreigners overseas for foreign intelligence purposes. No warrant is required for this collection because courts have held that foreigners have no Fourth Amendment rights. Instead, each year, the FISA Court must sign off on the procedures that govern the surveillance.

Although ostensibly targeted at foreigners, Section 702 surveillance inevitably sweeps in massive amounts of Americans communications. Recognizing the impact on Americans privacy, Congress required the NSA to minimize the sharing, retention, and use of this incidentally collected U.S. person data. But the government and the FISA Court have embraced an interpretation of minimize that is remarkably maximal. The NSA shares raw data with multiple other agenciesincluding the FBI and the CIAand all of them retain the data for a functional minimum of five years. Moreover, the FBI routinely combs through it looking for Americans communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation.

In 2011, the government disclosed to the FISA Court that it had misrepresented the nature of its upstream collection activities under Section 702. (Upstream collection takes place as the communications are transiting over the Internet backbone; downstream collection acquires stored communications, usually from the servers of Internet Service Providers.) When conducting upstream surveillance, the government was acquiring, not just communications to or from the targets of surveillance, but communications that simply mentioned certain information about them (known as abouts collection). As a result, the government was acquiring packets of data containing multiple communications, some of which had nothing to do with the target. This included tens of thousands of wholly domestic communications.

The Court was not pleased to learn about this significant issue three years into the programs operation. It held that the governments handling of the data violated the Fourth Amendment, and it required the government to develop special rulesapproved by the Court in 2012for segregating, storing, retaining, and accessing communications obtained through upstream collection.

In 2015, the Court was under the impression that these rules were being followed. However, in approving Section 702 surveillance that year, it noted several incidents of non-compliance with other rules designed to protect Americans privacyincluding FBI violations of protections for attorney-client communications, a failure of access controls by the FBI, and the NSAs failure to purge certain improperly collected data. Once again, the Court expressed displeasure at being notified of infractions long after they occurred.

In 2016, the FISA Court learned that the NSA had been violating the rules established in 2012. Because those rules were designed to remedy a Fourth Amendment violation occurring since the start of the program, the NSAs non-compliance meant that its upstream collection activities had been operating unconstitutionally for eight years. Moreover, the government did not report this issue for several months after discovering it. Unable to bring itself into compliance, the NSA made the only decision it could: In the spring of 2017, it abandoned abouts collection, which was at the root of the problem.

When Section 702 came up for reauthorization in late 2017, civil liberties advocates pointed to this troubled history. They also pointed to a growing body of case law holding that searches of government databases can, in certain circumstances, constitute a separate Fourth Amendment event. They argued that government agencies should be required to obtain a warrant before searching Section 702-obtained data for the communications of Americans (a practice formally called U.S. person queries and informally dubbed backdoor searches). They also urged Congress to ban abouts collection, lest the government attempt to resume it.

Congress rejected these proposals. Although Congress did require the FBI to obtain the FISA Courts permission to conduct U.S. person queries in a tiny sliver of cases, it blessed the vast majority of these searches, which previously had no foundation in the text of Section 702. It simply required the FBI to develop querying procedures that the FISA Court would have to approve. It also required the FBI to keep records of each U.S. person query it conducted. With respect to abouts collection, Congress required the government to obtain FISA Court approval and to give Congress advance notice before resuming the practice.

The Courts October 2018 Ruling

In March 2018, the government submitted its annual certifications and procedures to the FISA Court for its approval. In a decision dated October 18, 2018, and released last week, the FISA Court held that the FBIs minimization procedures violated both the statute and the Fourth Amendment. The Courts opinion addresses three main practices by the FBI: downstream collection of certain communications; the FBIs failure to record USP queries; and the FBIs improper use of USP queries.

Downstream collection and abouts communications. Although this section of the opinion is highly redacted, it appears that the government is engaged in a new form of downstream collection that raised a flag for the FISA Court. The Court solicited amicis advice about whether the statutory preconditions for resuming abouts collection apply to downstream collection, and whether certain activities in the governments 2018 certifications involve the acquisition of abouts communications. Amici argued that the answer to both questions was yes; the governments answer was no in both cases. The Court split the baby, holding that the statutory requirements apply to any kind of abouts collection, but that no such collection would occur under the governments certifications.

The heavy redactions make it difficult to assess the significance of this part of the opinion. However, on its face, the definition of abouts collectionbasically, anything other than a communication to or from the targetshould not be difficult to apply. It is worrisome that the government and amici reached different conclusions about whether a certain form of collection merited the label abouts. The uncertainty strongly supports a suspicion civil liberties advocates have held for some time: that the selectors the government uses to identify the communications to be collected are not necessarily unique identifiers (such as email addresses), but can sweep in people other than the intended targets (as would, for instance, IP addresses).

The statutory requirement to count U.S. person queries. In its January 2018 reauthorization of Section 702, Congress ordered the government to adopt querying procedures that included a technical procedure whereby a record is kept of each United States person query term used for a query. Instead, in the querying procedures that the FBI submitted to the FISA Court, the Bureau announced that it intends to satisfy the record-keeping requirement by keeping a record of all queriesin other words, the FBI would lump together U.S. person queries and non-U.S. person queries, without distinguishing between them.

The government defended this approach with a weak argument that the statutory text was somehow ambiguous, and that both the legislative history and policy considerations weighed against requiring the FBI to document U.S. person queries. In a refrain often heard when an intelligence or law enforcement agency is asked to devote time or resources to safeguarding civil liberties, the government claimed that requiring the FBI to figure out whether a particular investigative subject was a U.S. person would divert resources from investigative work . . . to the detriment of public safety.

The FISA Court has historically yielded to such pleas, and on this occasion, the Court seemed sympathetic. Ultimately, however, the Court concluded that it had no choice. It stated: Regardless of how persuasive the FBIs considerations may be, the Court is not free to substitute its understanding of sound policyor, for that matter, the understanding of the Director of the FBIfor the clear command of the statute. The law, the Court held, was unambiguous in its directive to count U.S. person queries.

On appeal, the FISCR upheld the Courts ruling on this question. The FISCR, however, seemed somewhat less sympathetic to the governments position. Under the FBIs querying procedures, U.S. person query term is defined as a term that is reasonably likely to identify one or more specific United States persons. This definition does not require a high level of certainty. Moreover, the procedures provide for the application of default assumptions in cases where specific information is lacking. Under these circumstances, it is hard to argue with the FISCRs assessment that counting U.S. person queries is not a burdensome substantive requirement, and that it would simply mean adding one (largely ministerial) item to the checklist that FBI personnel most likely already work through when conducting queries for investigative purposes.

Somewhat oddly, the FISCR did not resolve the other major issue on appeal: whether the FBIs repeated violations of its own querying and minimization procedures rendered those rules unlawful and unconstitutional as implemented. Those violations, and the FISA Courts failure to require an adequate remedy for them, will be the subject of Part II of this post.

Read the original here:
The FISA Court's 702 Opinions, Part I: A History of Non-Compliance Repeats Itself - Just Security

The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.

The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.

In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a fundamental right, that interest prevails over all countervailing public concerns.

That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.

Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices like pulling children out of school after the eighth grade might be considered problematic or harmful.

But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the publics ability to regulate that activity in ways that may be needed to protect the community.

The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the publics interest against the individuals liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.

For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.

So too with protections for personal privacy under the Fourth Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesnt bar all searches and seizures, but instead requires that such intrusions be reasonable, a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.

The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in peoples homes, it observed that states could for historical and public-policy safety reasons prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the Second Amendments protection takes account of countervailing public objectives.

For instance, some states require that gun owners keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.

Or consider the contours of self-defense itself. A Second Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the Second Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable nonlethal alternatives were available for the shooter to defend himself.

The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.

In evaluating gun control regulations, its legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms.

Constitutional analysis of the Second Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the states need to promote public safety.

Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor of law at the UC Davis School of Law.

Originally posted here:
Commentary: What the gun lobby gets wrong about the Second Amendment - The Daily World