Category Archives: Fourth Amendment

PHOENIX, Ariz. (March 16, 2017) Yesterday, an Arizona House Committee unanimously passed abill that would ban the use of stingrays to track the location of phones and sweep up electronic communications without a warrant in most situations. The proposed law would not only protect privacy in Arizona, but would also hinder one aspect of the federal surveillance state.

Sen. Bob Worsley (R-Mesa) introduced Senate bill 1342 (SB1342) on Jan. 31. The legislation would help block the use of cell site simulators, known as stingrays. These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

SB1342 would require police to get a search warrant based on probable cause before deploying a stingray to locate or track an electronic device. It would also require law enforcement agencies to obtain a warrant under existing wiretapping statutes before using a stingray to intercept, obtain or access the content of any stored oral, wire or electronic communication.

The House Judiciary and Public Safety Committee passed an amended version SB1342 by an 8-0 vote. The amendment decreases the time between the issuance of a warrant and notification of the target from 120 to 90 days.

IMPACT ON FEDERAL SURVEILLANCEPROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

Does this document instruct you to withhold evidence from the states attorney and Circuit Court, even upon court order to produce? he asked.

Yes, Cabreja said.

As privacysos.org put it, The FBI would rather police officers and prosecutors let criminals go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.

The feds sell the technology in the name of anti-terrorism efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal data bases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the information sharing environment or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigatorshave mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1342 would representa major blow to the surveillance state and a win for privacy.

WHATS NEXT

SB1342 now moves to the House Rules Committee where it must pass by a majority vote before moving to the full House.

Read the original here:
Arizona Committee Passes Bill to Prohibit Warrantless Stingray Spying - Tenth Amendment Center (blog)

CONCORD, N.H. (Mar.10, 2017) The New Hampshire House has passeda bill that would ban material support or resources towarrantless federal spying.The vote was 199-153.

Rep. Neal Kurk and Rep. Carol McGuire, along with two cosponsors, introduced House Bill 171 (HB171). The legislation would prohibit the state or its political subdivisions from assisting a federal agency in the collection of electronic data without a warrant.

Neither the state nor its political subdivisions shall assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a persons electronic data or metadata, without that persons informed consent, or without a warrant issued by a judge and based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a judicially-recognized exception to the warrant requirement of the Fourth Amendment to the Unites States Constitution.

On Feb. 15, the full House gave HB171 initial approval with an ought to pass recommendation by a 199-153 vote. It was then referredback to the House Criminal Justice and Public Safety Committee. Under House rules, bills with certain subject matter are required to go through a 2nd committee for approval, however the Chair has the discretion to decline that 2nd referral.

Today, House House Criminal Justice and Public Safety ChairDavidWelch(r) exercised that prerogative per House Rule 46(f), and the original Feb. 15 vote stands as final House passage of the bill.

PRACTICAL EFFECT

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB171 wouldhinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in New Hampshire, it would have to proceed without state or local assistance. That would likely prove problematic.

The feds share and tap into vast amounts of information gathered at the state and local level through a programknown as the information sharing environment or ISE. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies. In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

State and local law enforcement agencies regularly providesurveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA stingrays), automated license plate readers (ALPRs), drones, facial recognition systems, and even smart or advanced power meters in homes.

Passage of HB171 would set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB171would also prohibit what NSA former Chief Technical Director William Binney called the countrys greatest threat since the Civil War.

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases rarely involve national security issues. Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is the most threatening situation to our constitutional republic since the Civil War, Binney said.

NSA FACILITIES

The original definition of material support or resources included providing tangible support such as money, goods, and materials and also less concrete support, such as personnel and training. Section 805 of the PATRIOT Act expanded the definition to include expert advice or assistance.

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in New Hampshire.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a virtual shutdown of the agency. Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB171. By passing this legislation, New Hampshire would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.

LEGAL BASIS

HB171 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. Theanti-commandeering doctrineis based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

NEXT UP

California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency requests state assistance in data collection if there exists actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information. Although that law will need further steps to put into practical effect, it set a strong foundation that HB171 would expand on for New Hampshire.

The legislation willnow move to the Senate for further consideration.

Link:
New Hampshire House Passes Bill Banning Support for Warrantless Federal Spying Programs - Tenth Amendment Center (blog)

History >> US Government The Fourth Amendment was part of the Bill of Rights that was added to the Constitution on December 15, 1791. It protects people from unlawful searches and seizures. This means that the police can't search you or your house without a warrant or probable cause.

From the Constitution

Here is the text of the Fourth Amendment from the Constitution:

"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."

Reasons for the Fourth Amendment

The Fourth Amendment came about because of the actions of British tax collectors before the Revolutionary War. They would use general warrants to enter and search any house they wanted without needing evidence of wrongdoing. The Founding Fathers wanted to protect people from this sort of invasion of privacy from the government.

What is "searches and seizures"?

A "search" under the Fourth Amendment is when a public employee (like a police officer) looks at something that is considered "private". It typically takes two things in order for something to be considered "private":

1) the citizen thought it was private and it would not be able to be viewed by the public (For example, something inside a house would be private, something on the driveway could be viewed by anyone).

2) these expectations of privacy are realistic (It wouldn't be realistic to expect something on your driveway to be private).

When someone is "seized" they are not free to leave (like being arrested and placed in jail). When something is "seized" it cannot be taken back (like the police taking your wallet and not giving it back).

Judges Warrant

In order to conduct a legal "search" or "seizure" the police must have a warrant written by a judge. To get this warrant they must present evidence to the judge that some criminal activity has taken place. This assures that the police can't enter a person's home or arrest a person without evidence that has been reviewed by a judge.

Probable Cause

The Fourth Amendment also states that there must be "probable cause." This means that there is enough evidence to show that a crime has likely been committed. The police must have this evidence before any arrest or search. Any evidence found during the search does not count as probable cause.

How does this work in public schools?

The requirements for search and seizure are slightly different in the public schools. The Supreme Court has said that school officials and police officers can search a student if they have "reasonable suspicion" that a crime has occurred. This is less of a requirement than "probable cause."

Some Searches Are Allowed

There are certain places and situations where people are searched or stopped without a warrant. Consider the airport where everyone who flies is searched. When you agree to fly, you give up some of your Fourth Amendment rights. Another example is a roadblock that tests for drunk drivers. When you drive on public roads you give up some of your Fourth Amendment rights. These searches are generally accepted by the citizens for their own safety and protection.

Interesting Facts about the Fourth Amendment

To learn more about the United States government:

Works Cited

History >> US Government

Read more here:
US Government for Kids: Fourth Amendment

The American Civil Liberties Union is moving to quash a police warrant granted to search data on a Facebook page of a group protesting the Dakota Access pipeline.

The American Civil Liberties Unionfiled a motion Wednesday to strike what it described as a far-reaching and unconstitutional request by the Whatcom County Sheriffs Department in Bellingham, Wash., to search the Facebook page of the Bellingham #NODAPL Coalition.

The coalition and other individuals across the country have engaged in protests against the Trump administrations plan to move forward on construction of the pipeline. The group is said to have been involved in a protest at Bellinghams U.S. Bank in early February.

According to the ACLU, the founder of the Facebook page received an email from Facebook on March 3 with a copy of the warrant issued to search the site. The message, cited by the ACLU in its filing, also indicated that a motion would need to be filed by March 8 to quash the warrant and that Facebook would otherwise respond to the legal process. The ACLU has posted a copy of the warrant on its website.

The motion argues that the warrant is unconstitutional because it permits a broad search of private electronic data protected by the First and Fourth Amendments.

The warrant at issue here is deeply problematic and runs afoul of constitutional protections.Political speech and the freedom to engage in political activity without being subjected to undue government scrutiny are at the heart of the First Amendment, La Rond Baker, staff attorney at the ACLU of Washington, said in a statement issued late Wednesday.

Further, the Fourth Amendment prohibits the government from performing broad fishing expeditions into private affairs. And seizing information from Facebook accounts simply because they are associated with protests of the government violates these core constitutional principles, Baker said.

The Whatcom County Sheriffs Department did not respond to a request for comment by press time.

The First Amendment protects political speech, the right to receive information, and the right to associate with others to engage in political speech and advocacy without state monitoring or interference. The warrant here intrudes on all of these rights and would chill both political speech and association at the heart of the First Amendment, the motion states.

The warrant also fails to meet the basic Fourth Amendment requirement that warrants be particularized, not least because it potentially extends to any member of the public, supportive or not, who interacted with the group."

This post was updated at 2:06 p.m.

See the original post:
ACLU challenges warrant to search Facebook page of Dakota Access opponents - The Hill

Imagine this: the government, for reasons you don't know, thinks you're a spy. You go on vacation and, while you're away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don't find any evidence that you're a spy, but they find something elseevidence of another, totally unrelated crime. You're arrested, charged, and ultimately convicted, yet you're never allowed to see what prompted the agents to think you were a spy in the first place.

Sounds like something from dystopian fiction, right? Yet it's exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub's home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, andcriticallymaking wholesale copies of his hard drives.

Agents were authorized by the secret Foreign Intelligence Surveillance Court ("FISC") to search for evidence that Gartenlaub was spying for the Chinese government. Theres only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBIs forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

There are plenty of troubling aspects to Gartenlaubs prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBIs searches of Gartenlaubs electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

Heres why: when agents copied and searched Gartenlaubs devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like plain viewan exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldnt have to ignore the dead body lying in the living room. But the way plain view works in the digital contextespecially forensic computer searchesis not at all clear. How far can cops rummage around our computers for the evidence theyre authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computerwhich the Fourth Amendment allows and a general search for evidence of criminal activitywhich the Fourth Amendment prohibits?

Our electronic devices contain decades' worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homesor, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn't turn into the type of general rummaging the Fourth Amendment was designed to prevent.

In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBIs search of Gartenlaubs hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcements electronic search powers and in protecting our right to privacy in the digital age.

Continued here:
Secret Court Orders Aren't Blank Checks for General Electronic Searches - EFF

GLENN CHAPMAN/AFP/Getty Images

This prosecution, nearly all of which remains sealed, is one of a small but growing number of criminal cases that pit modern smartphone encryption against both the Fourth Amendment protection against unreasonable search and seizure, and also the Fifth Amendment right to avoidself-incrimination. According to the judges opinion, quoting from a still-sealed government filing, "forced fingerprinting" is part of a broader government strategy, likely to combat the prevalence of encrypted devices.

Last year, federal investigators sought a similar permission to force residents of two houses in Southern California to fingerprint-unlock a seized phone in a case that also remains sealed. In those cases, and likely in the Illinois case as well, the prosecutors' legal analysis states that there is no Fifth Amendment implication at play. Under the Constitution, defendants cannot be compelled to provide self-incriminating testimony (what you know). However, traditionally, giving a fingerprint (what you are) for the purposes of identification or matching to an unknown fingerprint found at a crime scene has been allowed. It wasnt until relatively recently, however, that fingerprints could be used to unlock a smartphone.

However, unlike the California warrant applications, this case doesnt involve one particular seized device to check to see if anyones fingerprint unlocks it. Rather, authorities seem to be using the particular fact that most modern Apple iPhones and iPads can be unlocked and decrypted if Touch ID is enabled. While some Android devices also have a similar fingerprint scanning function, the warrant application (which remains sealed) apparently only sought out Apple devices. (Under both operating systems, the fingerprint unlock stops working after your phone has been unlocked for 48 hours.)

As the judge, who is both a former federal prosecutor and a former FBI special agent,wrote:

The request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

First, the Court finds that the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.

This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.

Neither the Department of Justice nor the FBI immediately responded to Ars request for comment. Prosecutors could seek to appeal the opinion to a more senior judge.

"As I read the opinion, the government relies on old fingerprinting cases to argue that the Fourth and Fifth Amendments dont stand in the way of what they are seeking to do here," Abraham Rein, a Philadelphia-based tech lawyer, told Ars by e-mail.

"But (as the court points out) there is a big difference between using a fingerprint to identify a person and using one to gain access to a potentially vast trove of data about them and possibly about innocent third parties, too. The old fingerprinting cases arent really good analogs for this new situation. Same is true with old cases about using keys to unlock lockshere, were not talking about a key but about part of a persons body."

Orin Kerr, a well-known privacy and tech law expert and a professor at George Washington University, told Ars that the judge had largely reached the right result, but only on Fourth Amendment, and specifically not Fifth Amendment grounds.

"I just think that it's really clear that [fingerprints are] not testimonialbecause youre not using your brain," he said. "It cant be testimonial if you can cut their finger off."

Similarly, Paul Rosenzweig, an attorney and former Homeland Security official, argued that its essentially impossible for a fingerprint, even a digital fingerprint, to have any Fifth Amendment implications.

"We could have gone down the road of saying that providing physical evidence is testimony against yourself," he said. "But we long ago made the decision that the Fifth Amendment applied to testimony, and testimony meant only oral utterances or other things that conveyed a message. For this distinction lies at the core of Breathalyzer tests. If we roll that back, Breathalyzer tests go out the window. Blowing your air would be testifying against yourself."

Riana Pfefferkorn, one of the lawyers who first found this judicial opinion and publicized it on Twitter, told Ars that part of the problem with these types of cases is that this cutting edge of judicial analysis is largely happening "outside the public eye."

"In many instances, there may be little or no legal analysis by the court when it approves a request for a search warrant or other court order," she wrote. "Examples like this may be the tip of an iceberg. I hope that more judges will join this Illinois judge in not only conducting a thorough legal analysis of novel requests for gathering electronic evidence, but also publishing those opinions publicly."

Yet another lawyer suggested that cases like this would push companies like Apple to harden their devices even further: rather than allow a simple fingerprint to unlock a phone, future versions of its software will likely require a fingerprint or other biometric in combination with a traditional passcode.

"I think we will see authentication systems evolve with these kinds of mass searches (not to mention border searches and the like) as a new part of the threat model of unauthorized access," Blake Reid, a law professor at the University of Colorado, told Ars. "An additional risk of what the government is doing here is creating incentives for manufacturers to design authentication systems that are less susceptible from a technical and architectural perspective to these types of searches."

Go here to read the rest:
Judge: No, feds can't nab all Apple devices and try everyone's ... - Ars Technica

Letter to the editor: Fourth Amendment for Americans Post Register Regarding Security is a human right by Pastor Regina Herman, Feb. 16: Pastor Herman states, in part, that They [Sanctuary cities, also called Fourth Amendment Cities] are not set up to defy the government, the Constitution, or the laws on which this ...

Go here to see the original:
Letter to the editor: Fourth Amendment for Americans - Post Register

A federal magistrate judge in Chicago has rejected a request by the government for a provision in a search warrant that would authorize agents to compel people present to unlock seized phones using biometric readers. I think the judge was right to reject the provision, although I disagree with substantial parts of the reasoning.

I. The New Opinion

In the case, an Internet connection (presumably at a home) is being used to traffic in images of child pornography. The government wants the authority to search the place and seize any computers located there. The magistrate judge allows that. The government also wants a provision in the warrant authorizing the police to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device. The magistrate judge rejects that provision, issuing the warrant without it.

The magistrate judge offers two reasons for rejecting the fingerprint provision. First, the opinion suggests that making a person give a fingerprint raises case-by-case questions of reasonableness under the Fourth Amendment that cannot be addressed with a blanket authorization. According to the court, the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device. Lots of people might be present on the premises at the time of the search, but there is no way to know ahead of time whether there will be sufficient cause to seize each person needed to make then unlock a particular phone.

Second, the judge suggests that obtaining thumbprints will violate the Fifth Amendment because cellphones contain very sensitive information. The common wisdom is that an order to place a particular thumb on a thumbprint reader doesnt violate the Fifth Amendment because it isnt testimonial. It doesnt reveal what is going on in the persons mind, so its not the persons testimony. But the magistrate judge disagrees:

[T]he connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does explicitly or implicitly relate a factual assertion or disclose information. Doe, 670 F.3d at 1342. The connection between the fingerprint and Apples biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phones contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at2) (citing Wade,388 U.S. 218,223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someones most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner.

II. My Analysis the Fourth Amendment Issues

I think the judge was correct to reject this provision, although not quite for the reasons stated. The proper reason to reject this provision is that warrants cannot and should not regulate how a warrant is to be executed. The warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldnt try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.

This principle most often comes up when judges want to impose ex ante restrictions on computer warrants. Those restrictions might be search protocols or restrictions on when seized computers have to be returned. I argued in a 2010 article that these limits are improper. The reasonableness of the search has to be determined ex post, I argued, not answered by a magistrate judge ahead of time when the warrant is issued.

A warrant provision providing authorization to get thumbprints is the mirror image of ex ante restrictions. Now the government wants ex ante approval of steps in the execution of the warrant rather than judges wanting ex ante disapproval of steps. But the principle is the same. Just as a magistrate judge cant gauge at the time of the warrant application what limits on the execution of the search would be proper, neither can a magistrate judge gauge what added government steps would be proper. We have to wait for the execution of the search and for reasonableness determinations to be made on the scene by the officers and then reviewed ex post by courts.

This point is true even if courts in future ex post litigation rule that a particular thumbprinting practice complies with the Fourth Amendment. If courts later issue those rulings, then magistrates still shouldnt include provisions about them in warrants. Instead, they will become part of background Fourth Amendment principles that apply to every warrant. And notably, the Fourth Amendment cases the court discusses on detention and fingerprinting are all about what was deemed reasonable ex post. None of them are about provisions included in a warrant ex ante.

If Im right that this fingerprint provision is categorically improper, one question is why is the government seeking it. Whats the perceived advantage? I suspect there are two reasons. First, prosecutors and agents are probably thinking that magistrate preapproval will help trigger the good-faith exception of United States v. Leon. If a particular fingerprinting is later questioned in court, and a judge rules that it was improper, agents can fall back on the preapproval of the process in the warrant to avoid suppression. If thats what they are thinking, its all the more reason to reject the provision: It makes no sense for magistrate preapproval of something they have no authority to preapprove to change whether the exclusionary rule applies.

Second, prosecutors and agents may be thinking that including the provision in the warrant will encourage people not to resist giving their thumbprints. Agents wont want to force people to put their thumbs on the phones; they would rather those present do so without force. With a warrant in hand saying that a judge has ordered it already, people are probably more likely to submit. But if thats the concern, I think the same objective could be met with an appellate court ruling saying that the thumbprints are permitted as a matter of Fourth Amendment law. Agents could show people a summary of the law on the issue, printed up on government letterhead, and I think that would have equivalent persuasive force. And of course that assumes that the courts would issue such a blanket ruling. Whether that is true would have to be litigated first, obviously.

I interpret the judges Fourth Amendment analysis to be at least somewhat in sync with the argument I have made here. On that basis I think the judge was correct to reject the provision, although I would have expressed the Fourth Amendment argument somewhat differently.

II. My Analysis the Fifth Amendment Issues

On to the Fifth Amendment issues. I wrote a long blog post last year on why I think compelling fingerprints to unlock phones can but usually wont raise Fifth Amendment issues: The Fifth Amendment and Touch ID.That post largely explains why I disagree with much of the magistrate judges Fifth Amendment analysis. The judge seems to think that using a persons body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.

There are ways that compelling someone to place fingers on biometric readers can require use of the mind, as I argued back in October. Imagine the police walk up to a person present at the scene and say this: Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID. Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, place your right thumb on this phone, complying wont amount to testimony about anything.

The fact that iPhones didnt exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But theyre not relevant to the Fifth Amendment standard.

Ill conclude with a procedural point. Im skeptical that possible Fifth Amendment issues that might arise in the execution of the warrant are properly before the court. For the Fifth Amendment to apply,the person must first expressly invoke the privilege. Given that people may or may not invoke their Fifth Amendment rights, Im skeptical that there is a ripe dispute now that can allow a court to adjudicate the Fifth Amendment issue. This concern would be solved by removing the provision from the warrant, as I think the Fourth Amendment requires.

Read more:
Judge rejects warrant provision allowing compelled thumbprints to ... - Washington Post

The Supreme Court struggled Tuesday to define limits to the Constitutions Fourth Amendment in a tragic case in which a U.S. Border Patrol agent fired his weapon and killed a 15-year-old boy on the Mexican side of the line.

Some of the justices feared that if they went too far, they could open the U.S. military to claims from victims of drone attacks in foreign countries. But the courts liberal wing worried that unless they gave the family its day in court, it had no recourse to punish rogue agents.

You have a very sympathetic case, Justice Stephen G. Breyer told the attorneys for the family of Sergio Hernandez, the boy killed in 2010 by the shot fired by agent Jesus Mesa Jr.

Mr. Mesa was cleared after a probe by the U.S. government, which said it could not establish that he violated Border Patrol policies.

The family says it wants justice in the courts. The only problem: Lower courts have ruled that since the boy was in Mexico, the Fourth Amendment protections dont apply in this case.

Robert C. Hilliard, the attorney for the Hernandez family, cast his case as a defense for other Mexicans who might find themselves in the same situation. He said there is an ongoing domestic routine law enforcement issue that needs to be solved.

Were here because the interaction of the Border Patrol in this area, the government has taken the position that on the border, the Constitution turns off if the deadly force goes across the border, he said.

He said there have been 10 instances in which the Border Patrol has fired from the U.S. into Mexico and killed someone.

Ahead of Tuesdays oral argument, some analysts said the case could give an indication of how the justices might rule on the extreme vetting executive order issued by President Trump. That order has been mostly blocked by federal courts, which ruled that potential visitors outside the U.S. and foreigners inside the U.S. illegally have constitutional rights that must be respected.

But the justices didnt stray far afield Tuesday. Instead, they debated whether they could draw a line that would allow the family to sue in this case but wouldnt open a whole category of lawsuits against U.S. troops who create collateral damage.

How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada? Chief Justice John G. Roberts Jr. asked Mr. Hilliard.

Justice Ruth Bader Ginsburg waved aside those concerns, saying thats a military operation that could be distinguished from a border encounter involving a federal law enforcement officer.

The chief justice did not seem swayed by the distinction, particularly in a tort claim against a federal employee.

The case could turn on the exact spot where the slaying occurred. The boy was shot in a culvert that is maintained by both the U.S. and Mexico though the ground where he fell is clearly on the Mexican side, the attorneys said.

Some of the courts liberal justices said that if the U.S. government has some authority over the territory, that could be a zone where Fourth Amendment protections against searches and seizures and in this case unlawful death would apply.

But Randolph J. Ortega, Mr. Mesas attorney, said the matter of the border cant be minimized.

Wars have been fought to establish borders. The border is very real, he said.

Mexico had asked for Mr. Mesa to be extradited to face charges there, but the U.S. government refused. The Mexican government then backed the familys lawsuit in court.

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Supreme Court considers parents' rights after boy killed by agent across Mexican border - Washington Times

ABA Journal's Blawg 100 (2015-2016)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-17, online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

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Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: --Electronic Communications Privacy Act (2012) --Overview of the Electronic Communications Privacy Act (2012) --Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment." Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! ---Pep Le Pew

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WaPo: The Fourth Amendment at the border and beyond: A few ...