Category Archives: Fourth Amendment

Google has strongly opposed US government plans to expand federal powers to authorise remote searches of digital data - claiming in a letter the powers will weaken citizens' fourth amendment rights.

The right is the part of the US Constitution that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.

In a letter to the Washington committee considering the proposed changes to the Federal Rule of Criminal Procedure 41, Google said the amendments raise a number of "monumental and highly complex constitutional, legal, and geopolitical concerns."

"Google urges the committee to reject the proposed amendment and leave the expansion of the government's investigative and technological tools, if any are necessary or appropriate, to Congress," it said.

The changes would permit any court within any district to issue a warrant authorising remote access searches of electronic information.

The company said a magistrate judge in the Southern District of Texas recently denied an application for a Rule 41 Warrant to permit US law enforcement agents to hack a computer whose location was unknown, but whose IP address was most recently associated with a country in South-East Asia. "Such searches clearly violate the extraterritorial limitations of Rule 41," it said.

It added: "The nature of today's technology is such that warrants issued under the proposed amendment will in many cases end up authorising the government to conduct searches outside the United States.

"Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures and expands the practice of covert entry warrants."

Richard Salgado, Google's director for law enforcement and information security, said the proposed change "raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide".

Google raised its objections as part of a public consultation that ended on Tuesday.

Read the original here:
Google strongly opposes plans to let ANY US COURT authorise digi-snoops

National Assembly building, Abuja

No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution, passed by the Senate on Wednesday.

However, the National Assembly has also approved the inclusion of independent candidacy in the new proposed constitution.

The extant electoral law in section 177 stipulates that candidates for elections must be sponsored by political parties. But the lawmakers have altered this section by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.

Consequently, any qualified Nigerian can now stand for election without necessarily belonging to any political party.

Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution, submitted by Deputy Senate President, Ike Ekweremadu, on the floor of the Senate, noted that 20 states voted against local government autonomy while 16 states voted in support.

The 20 states that voted against were: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.states.

The states that voted in favour of the councils autonomy were Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.

The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.

It shall not also exercise any function exercisable by a local government council under this constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the Council were sworn in.

The rest is here:
New constitution: NAssembly okays independent candidacy for poll

No fewer than 20 states in the country rejected autonomy for local governments in the fourth amendment to the 1999 Constitution (as amended), passed by the Senate on Wednesday.

Our correspondent, who obtained a copy of the report of the Committee on the Review of the 1999 Constitution submitted by Deputy Senate President Ike Ekweremadu on the floor of the senate, noted that 20 states voted against local government autonomy while 16 states voted in support.

The 20 states who voted against are: Akwa Ibom, Bayelsa, Borno, Cross River, Delta, Ebonyi, Ekiti, Enugu, Jigawa, Kaduna, Kano, Katsina, Kwara, Lagos, Ondo, Osun, Rivers, Taraba, Yobe and Zamfara.

States who gave the yes votes are: Adamawa, Anambra, Abia, Bauchi, Benue, Edo, Gombe, Imo, Kebbi, Kogi, Nasarawa, Niger, Ogun, Oyo, Plateau and Sokoto states.

The proposed amendments which was rejected had stated that a local government council not democratically elected shall not be recognised by all authorities and persons and shall not be entitled to any revenue allocation from the Federation Account or the state government.

It shall not also exercise any function exercisable by a local government council under this Constitution or any law for the time being in force; and shall stand dissolved at the expiration of a period of four years, commencing from the date the members of the council were sworn in.

The report also indicated that the National Assembly has also empowered the Independent National Electoral Commission to deregister political parties.

It also made provision for independent candidates in elections.

The extant electoral law stipulates that candidates for elections must be sponsored by political parties. Section 177 has been altered, by inserting a new paragraph that a candidate must be sponsored by political party or he is an independent candidate.

It was further observed that the lawmakers inserted section 225A, which states that INEC can deregister political parties if there is a breach of any of the requirements for registration.

See the original post here:
Constitution review: 20 states reject LG autonomy

ST. PAUL, Minn. (WCCO) State lawmakers are considering a constitutional amendment that would protect personal data from unreasonable search and seizure without a warrant.

The data privacy amendment would expand the current law to protect electronic communications and data,giving it the same protection in the state constitution as papers and other personal property.

Lawmakers in favor of this constitutional amendment say it would ensure that new 21stcentury communications, emails, text messages and photos are protected just as much as your other personal property.

A broad spectrum of political opinion in the state is speaking as one voice: supporters range from the most conservative lawmakers to the most liberal, all believing that further protections are needed forthe electronic communications of Minnesotans.

Minnesotans support our traditional rights to be free from unreasonable searches and seizures, and theyre also saying they support a modest, targeted constitutional amendment to make it clear that these protections still apply in our digital era, Matt Ehling, president of the Minnesota non-profit Public Record Media, said.

Supporters say the amendment will clarify that personal data is covered by the Fourth Amendment.

They also hope it closes loopholes that allow the federal government access to your emails, text messages and photos.

Sen. Branden Peterson, R-Andover, said there was a loophole in federal law over emails and other forms of digital communication.

All forms of electronic communication that are over sixmonths old can be accessed without a warrant, Peterson said.

The bill has passed through the Civil Law Committee and will be taken up in the Government Operations committee on Thursday.

Link:
Lawmakers Aim To Update Constitution For Data Privacy

The Fourth Amendment says that warrants must state where the government will search and what evidence the government will seize. In recent years, some federal magistrate judges, when asked to sign warrants for computer searches, have began imposing a new third requirement: limits on how computers can be searched. As I wrote in this 2010 article, I dont think such limits are permissible. In my view, questions about how a computer is searched must be reviewed after the search in adversarial litigation challenging its reasonableness, rather than guessed at beforehand and written into the warrant by an individual magistrate judge.

At present, however, there isnt much in the way of caselaw on which side is right. Theres a ton of circuit precedent saying that search protocols are not required. But theres only one appellate case on whether they are permitted, a Vermont Supreme Court case which concluded that that some restrictions are permitted but others arent. No Article III court has yet ruled on the question.

In light of that ongoing debate, I thought I would flag a recent opinion by Magistrate Judge David Waxse in Kansas, In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office. The opinion rejects an application for a warrant to search cell phones in DEA custody because the investigators refused to provide the court with a search protocol. If the government seeks review, it may generate the first Article III precedent that grapples with whether such restrictions are permitted. (The case happens to involve cell phones, but there is no Fourth Amendment difference between a cell phone search and any other computer search.)

Waxses opinion is pretty unusual. It includes a long section titled Applying Constitutional Protections in the Digital Era that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes:

With technological developments moving at such a rapid pace, Supreme Court precedent is and will inevitably continue to be absent with regard to many issues district courts encounter. As a result, an observable gap has arisen between the well-established rules lower courts have and the ones they need in the realm of technology. Courts cannot, however, allow the existence of that gap to infiltrate their decisions in a way that compromises the integrity and objectives of the Fourth Amendment. . . . The danger, of course, is that courts will rely on inapt analogical reasoning and outdated precedent to reach their decisions. To avoid this potential pitfall, courts must be aware of the danger and strive to avoid it by resisting the temptation to rationalize the application of ill-fitting precedent to circumstances.

Judge Waxse then concludes, relying heavily on the reasoning of the Vermont Supreme Court, that he has the authority to deny applications for computer warrants unless they detail how the search will be executed. Although the Supreme Court has indicated that the reasonableness of a warrant execution should be reviewed ex post, not ex ante, Waxse concludes that its more efficient to have the review occur ex ante:

The fact of the matter is that a court is attempting to avoid entirely the harm that ex post remedies are meant to assuage. By only deciding reasonableness of the governments actions ex post, the government not only possesses a substantial portion of an individuals private life, but it also fails to prevent a person from having to defend against subsequent unreasonable searches stemming from the initial search and seizure. Requiring search protocol in a warrant allows the court to more effectively fulfill its duty to render, as the Supreme Court put it, a deliberate, impartial judgment as to the constitutionality of the proposed search, thus avoiding the need for ex post remedies resulting from an unconstitutional search.

He concludes:

If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches. Given the substantial amount of data collected by the government upon searching or seizing a cell phone, as discussed in Riley, requesting an unrestricted search is tantamount to requesting disclosure of a vast array of intimate details of an individuals private life. For the reasons discussed in this opinion, to issue this warrant would swing the balance between an individuals right to privacy and the governments ability to effectively investigate and prosecute crimes too far in favor of the government.

Accordingly, the Court again finds that an explanation of the governments search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the Fourth Amendment. The Court does not believe that this request will overburden the government. In fact, in Riley, the government advocated and it can be concluded that the Supreme Court endorsed the implementation of search protocols: Alternatively, the Government proposes that law enforcement agencies develop protocols to address concerns raised by cloud computing. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

More:
Volokh Conspiracy: No cell phone warrants without search protocols, magistrate judge rules

Privacy advocates are pushing to allow Minnesota voters to decide whether their electronic communication should be protected from unreasonable search and seizure.

A bipartisan group of lawmakers and political organizations is encouraging the Legislature to put the question on the 2016 ballot.

State Rep. Peggy Scott, R-Andover, worries that law enforcement is overstepping its authority in acquiring data like financial and telecommunications records without getting search warrants.

"If data was what it is today if it would have been that way back when the constitution was being written I believe they would have included a person's technological communications as part of those things that would have been protected by the Fourth Amendment," Scott said.

A committee in the Republican-controlled House has scheduled a hearing on the bill this week. No committee hearing is scheduled in the Senate and DFL Senate Majority Leader Tom Bakk said he's reluctant to put any measures on the ballot next year.

"I think it would be unlikely that we're going to consider something additional for the ballot in 2016," Bakk said. "It's a conversation that I haven't had with the speaker yet if they have any interest to propose something."

Privacy issues are a major theme at the Capitol this year. There are also discussions about the privacy implications of police body cameras and police use of license plate readers.

Go here to read the rest:
Privacy advocates want amendment to protect personal data

As faithful readers of the VC know, Orin Kerr and I occasionally disagreeabout questions of Internet law, an area where our interests overlap considerably. But Orins recently-published paper on The Fourth Amendment and the Global Internet is a must-read - authoritative and comprehensive, a terrific resource for anyone thinking seriously aboutwhat Orin calls the clash between the territorial Fourth Amendment and the global Internet application of 4th Amednment doctrine to Internet communications, and the many difficulties of adapt[ing] to the reality of a global network in which suspects, victims, and evidence might be located anywhere. Legal scholarship at its best.

He covers a lot of ground, starting with the Supreme Courts decision inUnited States v. Verdugo-Urquidez, which held that a person must have sufficient voluntary connections to the United States either lawful presence in the United States at the time of the search or some substantial connection such as citizenship or lawful residency to enjoy the protection of the Fourth Amendmentat all. That is, some people in the world have FourthAmendment rights, and many others do not, which leads him to ask and analyze three questions: how should online contacts with the United States factor into whether aperson has Fourth Amendment rights? Second, how does the Fourth Amendmentapply when the government does not know if a target has sufficient contactsto establish Fourth Amendment rights? And third, how does the FourthAmendment apply when the government monitors communications betweenthose who lack Fourth Amendment rights and others who have those rights?

Next, he asks a series of questions assuming that the subject of monitoringhasFourth Amendment rights: how does the subjects location (or the location of the data) affect the analysis of whether the search was unreasonable within the meaning of the Fourth Amendment?

Its a rich mine of interesting and important law. But for me, the really interesting question is the one heexpressly) sets aside: is the Verdugo-Urquidez rule itself, and the strict territorial demarcations on which it is based, the right one for the 21st century Constitution? Orin takes the Verdugo rule as a given; as he notes, he accepts the basic principles of existing doctrine and considers how courts should apply those principles in light of the unprecedented globalism of todays Internet. Fair enough. But why dont we extend Fourth Amendment rights to foreigners outside of our borders? The Fourth Amendment, of course, only prohibits unreasonable searches and seizures why should the government be empowered to behave unreasonably towards anyone, with or without a citizenship or residency or locational connection to the United States? Why should the Constitution not prohibit US agents from searching the contents of Angela Merkels e-mail inbox?

Its a question that comes up frequently in Internet law, in connection with other constitutional rights. it was, for instance, very much central to the debates about SOPA (Stop Online Piracy Act) a few years ago. The animating principle behind SOPA which targeted foreign infringing websites for elimination through the Domain Name System was one that was premised on the notion that the operators of foreign infringing websites have no due process rights that we have to recognize (because, like the 4th Amendment, the 5th Amendment due process guarantees have a territorial component), so we can summarily remove their websites from the global Internet without compunction, in a manner that would be unconstitutional if applied to US citizens. It struck me as a flawed view of the world then, and it does again in reading Orins article.

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.

Original post:
Volokh Conspiracy: On Orin Kerr and the Constitution across borders

A US JUDGE HAS ruled in favour of the National Security Agency (NSA) in a personal privacy case, despite the protests of rights group the Electronic Frontier Foundation (EFF).

Jewel vs the NSA was ruled on by judge Jeffrey White in Oakland, California, who told plaintiffs that they had failed to prove that the government violated a long established hope that a man's home is his castle', or rather the Fourth Amendment.

The EFF expressed its disappointment at the latest stage in a case in which it has been involved for some time.

"EFF will keep fighting the unlawful, unconstitutional surveillance of ordinary Americans by the US government," the group said in a statement.

"Today's ruling was not a declaration that NSA spying is legal. The judge decided instead that 'state secrets' prevented him from ruling whether the programme is constitutional.

"It would be a travesty of justice if our clients are denied their day in court over the secrecy' of a programme that has been front page news for nearly a decade.

"Judge White's ruling does not end our case. The judge's ruling only concerned upstream internet surveillance, not the telephone records collection nor other mass surveillance processes that are also at issue."

The EFF has looked to crack open the government during the case and get it to talk more openly about surveillance sweeps.

"The American people know that their communications are being swept up by the government under various NSA programmes," it said.

"The government's attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is outrageous and disappointing."

The rest is here:
US judge backs NSA in people vs privacy case

THE FOURTH AMENDMENT - ISAIAH AND DAKOTA

By: Dakota Tate

Read more:
THE FOURTH AMENDMENT - ISAIAH AND DAKOTA - Video

SEARCH AND SEIZURE History and Scope of the Amendment

History .--Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the ''writs of assistance.'' But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, 1 there was also a rich English experience to draw on. ''Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603. 2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself. 4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ''of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ''contrary to the genius of the law of England.'' 5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ''great judgment,'' ''one of the landmarks of English liberty,'' ''one of the permanent monuments of the British Constitution,'' and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

Scope of the Amendment .--The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided ''The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.'' 8 As reported from committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute ''and no warrant shall issue'' for ''by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. 12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

The Court has drawn a wavering line. 13 In Harris v. United States, 14 it approved as ''reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ''cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.'' 15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ''is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ''must find resolution in the facts and circumstances of each case.'' 16 However, the Court soon returned to its emphasis upon the warrant. ''The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part.'' 17 Therefore, ''the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.'' 18 Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited. 19

During the 1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions. 22

By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally prevails over a ''reasonableness'' approach. 23 Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature. And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ''special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ''special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. 25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ''reasonable'' belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search ''incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ''protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger. 27

Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.'' 28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

Originally posted here:
Annotation 1 - Fourth Amendment - FindLaw