Category Archives: Fourth Amendment

Shane McGlaun

This week the US Supreme Court clarified a law by ruling the Torrey Dale Grady v. North Carolina case that had to do with clarification of the Fourth Amendment. The case was sent back to the state high court after a unanimous opinion set down by the Justices helped to clarify how the Fourth Amendment works.

The Fourth Amendment protects against unreasonable search and seizure. With the clarification the court set down a precedent that says if the government puts a GPS tracker on your car, you, or your belongings it counts as search and is protected by the Fourth Amendment.

After being twice convicted as a sex offender, Grady was forced to wear a GPS monitor at all times to allow authorities to monitor his location. Grady challenged the court sating that the device qualified as unreasonable search.

The highest court in North Carolina ruled the tracker wasn't considered search. The Supreme Court has decided otherwise and sets a precedent that may prevent other convicted criminals from being forced to wear GPS trackers in the future. This case will likely have implications in the state of Wisconsin as well since that state can force repeat sex offenders to wear tracking bracelets.

SOURCE: The Atlantic

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Supreme Court rules GPS trackers are a form of search and seizure

Speaking on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015
27 March 2015 Speaking in Seanad Debate on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

By: Mary Moran

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Speaking on Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 - Video

The case is Grady v. North Carolina. Held: Forcing someone to wear an ankle bracelet to monitor location is a Fourth Amendment search. The new decision extends the Jones search doctrine to searches of persons, and it provides more opportunity to ponder what the Jones test means. Ill start with the history, then discuss the new decision, and then offer some thoughts on the new case.

I. A Brief History of Fourth Amendment Searches

First, some Fourth Amendment history. As I explained in this article, the Supreme Court had not identified a clear test for what counts as a Fourth Amendment search until Katz v. United States (1967). In Silverman v. United States (1961), the Court had indicated that a physical intrusion was enough to be a search but left open what beyond physical intrusion counted. In Katz, the government had taped a microphone to the top of a public phone booth and listened to the microphone feed from a listening station nearby when Katz placed a call. The Court in Katz announced that it could no longer follow earlier caselaw, which it claimed had imposed a trespass test. The Court held that the governments conduct triggered the Fourth Amendment:

The Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

Justice Harlan concurred. According to Harlan, the key was that Katzs expectation of privacy in the phone booth was one society was prepared to recognize as reasonable. When Katz went into the phone booth, closed the door, and put a coin in the coin slot, the phone booth became a temporarily private place whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. The full Court later adopted Justice Harlans concurring opinion, usually known as the reasonable expectation of privacy test, or just as short hand, the Katz test. (Im ignoring subjective expectations of privacy for reasons explained here.)

In United States v. Jones (2012) the Supreme Court held that the government conducted a search when it installed a GPS device to the underbody of a suspects car to monitor his location over time with intent to get information. The Court reasoned that the trespass test that Katz said existed before Katz still existed, and that because installing a GPS device on a car is trespassory, installing the GPS device was a trespass search without having to reach the issue of whether it violated a reasonable expectation of privacy under the Katz test. Because the trespass occurred with the intent to get information, it was a Fourth Amendment search.

As I detailed in this article and I have blogged about occasionally since then, this history leaves us unsure of what the Court thinks the Jones test is. Is the test physical intrusion as in Silverman, or is it trespass? If its trespass, which kind of trespass, given that trespass is an accordian-like term that has both broad and narrow meanings? And if attaching a GPS device to the underbody of a car was trespassory in Jones, why wasnt taping a microphone to the top of a phone booth trespassory in Katz?

II. Grady v. North Carolina

That brings us to the new case. In Grady, the defendant is a recidivist sex offender who was ordered to wear an ankle bracelet that determines his location using GPS. The bracelet was installed against his consent, and he was ordered to wear it for life.

The defendant argued that this violated his Fourth Amendment rights under the Jones case, but the North Carolina Court of Appeals disagreed. First, it relied on its own precedent that had earlier rejected the analogy to Jones for a bizarre reason: Because Jones arose in a motion to suppress rather than a civil case, it was inapplicable and using the ankle bracelet was not a search. Second, the earlier precedent had relied post-Jones on dicta in a pre-Jones North Carolina Supreme Court case, Bowditch, that had suggested that sex offenders have a lesser expectation of privacy against monitoring.

The rest is here:
Volokh Conspiracy: Affixing ankle bracelet to monitor suspect is a search, Supreme Court holds

When the government places a location monitor on you or your stuff, it could be violating the Fourth Amendment.

If the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a searchand is therefore protected by the Fourth Amendment.

The Supreme Court clarified and affirmed that law on Monday, when it ruled on Torrey Dale Grady v. North Carolina, before sending the case back to that states high court. The Courts short but unanimous opinion helps make sense of how the Fourth Amendment, which protects against unreasonable search and seizure, interacts with the expanding technological powers of the U.S. government.

It doesnt matter what the context is, and it doesnt matter whether its a car or a person. Putting that tracking device on a car or a person is a search, said Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation (EFF).

In this case, that context was punishment. Grady was twice convicted as a sex offender. In 2013, North Carolina ordered that, as a recidivist, he had to wear a GPS monitor at all times so that his location could be monitored. He challenged the court, saying that the tracking device qualified as an unreasonable search.

North Carolinas highest court at first ruled that the tracker was no search at all. Its that decision that the Supreme Court took aim at today, quoting the states rationale and snarking:

The only theory we discern [] is that the States system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Courts precedents.

Then it lists a series of Supreme Court precedents.

And there are a few, as the Court has considered the Fourth Amendment quite a bit recently. In 2012, it ruled that placing a GPS tracker on a suspects car, without a warrant, counted as an unreasonable search. The following year, it said that using drug-sniffing dogs around a suspects front porchwithout a warrant and without their consentwas also unreasonable, as it trespassed onto a persons property to gain information about them.

Both of those cases involved suspects, but the ruling Monday made clear that it extends to those convicted of crimes, too.

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U.S. Supreme Court: GPS Trackers Are a Form of Search and Seizure

The Supreme Court raised constitutional doubts Monday about the lifelong monitoring of sex offenders and other criminals with the use of GPS devices.

In a unanimous decision, the justices ruled for a North Carolina man and said this monitoring is a search under the Fourth Amendment that must be justified as reasonable based on all the circumstances.

Since 2005, 40 states have adopted laws that provide for GPS monitoring of ex-offenders. California was said to have the first and largest monitoring program. The court was told 9,300 sex offenders in California were being tracked, along with some gang members.

Mondays decision stops well short of striking down such monitoring, but it opens the door for ex-offenders to argue for limits.

A North Carolina lawyer who appealed the case praised the court for putting some restrictions on monitoring.

This is a significant case. North Carolina and other states have basically taken the position that they can strap a GPS monitoring device to whomever they choose. The court here is basically saying, no, any such search must be reasonable. In many cases, thats going to be impossible to demonstrate, said Luke Everett, a lawyer in Durham.

After a 20-minute hearing in 2013, Torrey Grady was ordered to enter a GPS monitoring program that would require him to wear an ankle bracelet for the remainder of his natural life. He was not on probation, but he had been convicted of a sex offense when he was a teenager in 1997 and of taking indecent liberties with a child in 2006.

North Carolinas law calls for monitoring of repeat offenders. He appealed the order, arguing it was an unreasonable search under the Fourth Amendment. A North Carolina court ruled that monitoring was not a search at all, and the North Carolina Supreme Court refused to hear his claim.

The Supreme Court issued a summary reversal Monday in Grady v. North Carolina and said the monitoring was governed by the Fourth Amendment. A state conducts a search when it attaches a device to a persons body, without consent, for the purpose of tracking that individuals movement, the justices said.

But they note the Fourth Amendment forbids only unreasonable searches, and they sent the case back to North Carolina for judges there to consider whether the lifelong monitoring of Grady was reasonable.

More here:
Supreme Court questions lifelong monitoring of sex offenders

The Supreme Court has confirmed in a ruling that if the government places a GPS tracker on someone's person or their belongings, the act counts as a searchsomething that remains protected by the Fourth Amendment.

As part of a case referred to as Grady v. North Carolina, the Supreme Court heard about how Torrey Dale Gradytwice-convicted as a sex offenderwas made to wear a GPS monitor at all times by North Carolina officials. In court, Grady challenged this, claiming it qualified as an unreasonable search. The Supreme Court agreed, explaining:

The only theory we discern [] is that the State's system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court's precedents.

It also listed some Supreme Court precedents to make its case, including a case where a tracker placed on a car without a warrant counted as unreasonable search. "It doesn't matter what the context is, and it doesn't matter whether it's a car or a person," Jennifer Lynch, a senior staff attorney at the Electronic Freedom Foundation, told The Atlantic. "Putting that tracking device on a car or a person is a search."

Still, the Fourth Amendment takes poor account of digital technology generally, and courts have only ruled on a small number of cases involving GPS data. At some point, as Lynch points out to The Atlantic, the justice system will need to establish how geo-location datanow prolific in phones, cars, watches and moreis governed and protected. In the meantime, though, North Carolina better rethink its policy on issuing GPS trackers to sex offenders. [The Atlantic, Washington Post]

Image by Canned Muffins under Creative Commons license

Original post:
Supreme Court Rules Government GPS Trackers Can Break Fourth Amendment

The Fourth Amendment of the US Constitution protects Americans against unreasonable searches and seizures of either self or property by government officials. When the government oversteps its authority, those responsible must be held accountable for their actions. With few exceptions, however, government surveillance focuses on protecting life, property and the American way. Private surveillance, on the other hand, is governed by no laws, and is conducted for self-interest and profit. In volume, stealth and intrusiveness, the private sector far surpasses anything the government has attempted or even contemplated doing. Yet, while Americans regularly read or hear about the National Security Agency (NSA) and Central Intelligence Agencys (CIA) intrusion into their lives, not many seem to be accusing private companies like Walmart or the Ford Motor Company of spying on people. It comes down to whether Americans trust companies like Verizon, Target, and Google to respect their privacy more than they trust the US government. The intelligence communitys focus is on foreign threats and activities overseas. The CIA and NSA operate under strict rules and regulations, including a ban against collecting information on Americans. The current policy states that signals intelligence shall be collected exclusively where there is a foreign intelligence or counterintelligence purpose to support national and departmental missions and not for any other purposes. The private sector, on the other hand, focuses on the bottom line and operates unfettered. Google a resort in Mexico, and see how ads for that destination continue to pop up every time you open your Internet browser. And that is only the tip of the iceberg. You cant imagine all the things going on behind the scenes that you arent able to see. Government surveillance, of course, increases when a known terrorist or other enemy of the United States contacts an American citizen. Following 9/11, NSA analysts were given limited access to the bad guys communication links to the United States. Even then, however, the privacy of American citizens remained a top priority. Going forward, if a known terrorist communicates with an American citizen, I suspect most Americans would feel more comfortable knowing someone is watching their back. Having spent more than 40 years as an intelligence officer, I know first-hand that the US intelligence community has made its share of mistakes (being dead wrong about weapons of mass destruction in Iraq and condoning torture spring readily to mind). And I continue to believe in the necessity of strict congressional oversight and restrictions, which separate the US intelligence community from other intelligence organizations like the KGB. This oversight is critical for an intelligence community serving a democratic country. It is true that the US intelligence community has at times been overzealous in protecting against terrorist threats and others who could do the United States harm, but not because it was seeking to pry into the private affairs of American citizens. For me, the NSA and Drug Enforcement Administrations (DEA) bulk collection and storage programs fall into the overzealous category. I am aware of the argument that more is better, but when weighed against privacy rights and the questionable predictive value of these materials, these arguments dont make sense. As in other areas, the Intelligence Community tends to overstate its capability to predict future events. I suspect the efforts to stop or disrupt terrorist attacks are on par with law enforcements (rather poor) record on stopping premeditated murders, kidnappings, and the spread of illegal drugs. For me, the larger problem is the massive effort by private companies to collect every bit of data they can about me: my health, what I buy, what I eat, where I shop, who I talk to, and on and on. All of this is done not only without my permission, but also without my knowledge and it is legal. Of course, I dont want the government snooping around in my private affairs any more than you do. Yet, if it is in the nations security interest and my privacy remains protected, access to my metadata doesnt seem like too much for my government to ask of me. The writer is the former head of the Bureau of Intelligence and Research (INR), US State Department. (In partnership with The Mark News)

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Worrying about online privacy

Independent Katherine Zappone said the fundamental issue at stake was about the protection of a minoritys right to marry by opening a civil institution, to be protected and be able to become a constitutional family. Photographer: Dara Mac Dnaill /The Irish Times

Legislation to allow for a referendum on same sex marriage has been passed in the Seanad with a standing ovation by many of those supporting the Bill.

The Thirty-Fourth Amendment of the Constitution (Marriage Equality Bill) was accepted by 29 votes to three in the Upper House after a week of sometimes heated debate.

The legislation now goes to the President for signature, having been passed by the Dil without a vote.

The Bill was passed as an opinion poll in The Irish Times showed a 6 per cent drop in support for the introduction of same sex marriage since December when the last poll was conducted. The referendum takes place on Friday, May 22nd.

Support stands at 74 per cent compared to 80 per cent in the last poll. Support for a No vote has risen 6 per cent to 26 per cent, when undecided voters are accounted for.

A number of amendments from Independent Ronn Mullen were rejected including that marriage equality should not have unintended consequences affecting what he called freedom of conscience issues.

Mr Mullen said that as a general principle, it should always be immoral and unlawful to discriminate against a person on grounds of his or her sexual orientation.

However, refusing to provide a service in circumstances which one perceives to link one with something with which one conscientiously disagrees is not the same thing.

He highlighted the case of a bakery in Belfast which refused to provide a cake for a civil partnership and was being prosecuted by what he called the equality people in the North.

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Standing ovation as Seanad passes same sex marriage Bill

The Department of Justice recently edged closer to a rule change that would allow the FBI to track suspected criminals' computer activity more easily. The Judicial Conference Advisory Committee on Criminal Rules voted last week in favor of an update to Rule 41, which dictates how judges can issue search warrants on electronic devices, Government Executive reported. The new rule 41 would let judges OK warrants to examine computers remotely anywhere as opposed to only those in their districts. The FBI would also no longer would be required to give users notice ahead of its searches.

"The rule itself would be an acknowledgement that remote access searches are valid without notice, without special justification," Electronic Privacy Information Center general counsel Alan Butler told Gizmodo. "Notice is one of the essential procedural protections of the Fourth Amendment. Validating a rule that implies that notice will never happen does not comport with the Fourth Amendment."

The Fourth Amendment forbids unreasonable searches and seizures.

The FBI has requested the rule change to better function in the 21st-century world of technology, DefenseOnereported. The agency would have more options, like the authority to secretly install tracking software on the computers of alleged criminals.

Privacy groups are opposed to this. Google came out against the Rule 41 change last week, arguing it raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left to Congress to decide. The Department of Justice fired back, saying the amendment had been misread and would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law.

In any event, the proposal will next go before the Standing Committee on Rules of Practice and Procedure, then the Supreme Court. If approved, Gizmodo reported, Rule 41 could be updated by December 2016.

See more here:
Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects' Computers Without Notice

Senate Votes Against Fourth Amendment Protection Act 720p
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Senate Votes Against Fourth Amendment Protection Act 720p - Video