From the EFF: Federal Court: The Fourth Amendment Does Not Protect Your Home Computer

A likely future Supreme Court case.

- Click here for the article.

In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no “reasonable expectation of privacy” in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual's computer.

This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBI’s investigation of Playpen—a Tor hidden services site hosting child pornography. The FBI seized the server hosting the site in 2014, but continued to operate the site and serve malware to thousands of visitors that logged into the site. The malware located certain identifying information (e.g., MAC address, operating system, the computer’s “Host name”; etc) on the attacked computer and sent that information back to the FBI. There are hundreds of prosecutions, pending across the country, stemming from this investigation.

Courts overseeing these cases have struggled to apply traditional rules of criminal procedure and constitutional law to the technology at issue. Recognizing this, we've been participating asamicus to educate judges on the significant legal issues these cases present. In fact, EFF filedan amicus brief in this very case, arguing that the FBI’s investigation ran afoul of the Fourth Amendment. The brief, unfortunately, did not have the intended effect.

The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. To say the least, the decision is bad news for privacy. But it's also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge's decision, which also diminishes the likelihood that it will become reliable precedent.)

But the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone's rights. As hundreds of these cases work their way through the federal court system, we'll be keeping a careful eye on these decisions, developing resources to help educate the defense bar, and doing all we can to ensure that the Fourth Amendment's protections for our electronic devices aren't eroded further. We'll be writing more about these cases in the upcoming days, too, so be sure to check back in for an in-depth look at the of the legal issues in these cases, and the problems with the way the FBI handled its investigation.

Who are "The People" any way?

For the spring 2305 classes. Something to ponder as we read through the Constitution. The terms "the people" appears in multiple places in the Constitution, but what does it mean exactly? Who does it refer to? Who does it protect? Everyone, or a small subset of people?

The Supreme Court wrestled with this question in United States v. Verdugo-Urquidez. It involved a question about the extent of 4th Amendment protections. Does it limit all of the searches the United States or only those against "the people?" Well, who are "the people" as understood by the Supreme Court

For background:

- Oyez: United States v. Verdugo-Urquidez.
- Wikipedia: United States v. Verdugo-Urquidez.

Here are the fact pf the case according to Oyez:

Rene Martin Verdugo-Urquidez was a citizen and resident of Mexico. In cooperation with the Drug Enforcement Agency (DEA), Mexican police officers apprehended and transported him to the U.S. border, where he was arrested for various narcotics-related offenses. Following his arrest, a DEA agent sought authorization to search Verdugo-Urquidez's residences for evidence. The Director General of the Mexican Federal Judicial Police authorized the searches, but no search warrant from a U.S. magistrate was ever received. At trial, the district court granted Verdugo-Urquidez's motion to suppress the evidence on the ground that the search violated the Fourth Amendment to the Federal Constitution.

And the Question posed to the court:

Does the Fourth Amendment 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 six person majority of the court ruled that it did not.

Some text from the decision's syllabus that explains why:

- Click here for it.

- The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

- The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government, and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters.

Two separate dissents argued that the restriction applied to all actions of the national government, and suggests the national government was acting hypocritically in how it was enforcing statutory law as opposed to constitutional law.

The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.

From the Washington Post: Judge: NSA’s collecting of phone records is probably unconstitutional

As reported by Ellen Nakashima and Ann E. Marimow:

A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.
Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful. It marks the first time a federal judge in open court has opined on the collection of lawfulness in a case not involving a criminal defendant.

A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.

From The Dish: Police State Watch

Andrew Sullivan reports on a case where a drug sniffing dog made the wrong call. Police were led to believe - incorrectly - that a person they pulled over had hidden drugs up his backside, and took invasive procedures to try to find them. Which they did not, since there were none.

He was billed for the services.

The person searched seems to have limited ability to because policy have qualified immunity from lawsuits.

Is there a "drug war exception" to the Fourth Amendment?

These incidents raise troubling questions about how the criminal justice system and medical establishment could allow for such extreme and invasive measures based on such little suspicion for nonviolent drug offenses. Oddly, according to constitutional scholars and medical ethicists I've consulted, the indignities imposed upon Eckert and Young were both illegal and unethical. And yet it also may be that (a) none of the law enforcement officials or medical personnel responsible for the violations are likely to be held accountable in any way, and (b) they could probably do it all again tomorrow, and still wouldn't likely be held accountable.

The Legal Issues

Any discussion of the legal issues involved in these cases needs to begin with the general evisceration of the Bill of Rights wrought by the drug war. There's a reason why some constitutional law scholars refer a "drug war exception" to the Fourth Amendment. Over the last 45 years, the U.S. Supreme Court has generally taken the approach that drugs are such an existential threat to American society that some basic and inherent rights need to be suspended in order to facilitate their eradication.

“perhaps the most important criminal procedure case that this Court has heard in decades”

That's the assessment of Justice Samuel Alito on Maryland v King.

In a 5-4 decision the Supreme Court ruled that Maryland's DNA Collection Act was constitutional. ScotusBlog has full info on the case and its background.

From the NYT:

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

A little detail about the case here:

Maryland v. King, No. 12-207, arose from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His DNA profile, obtained by swabbing his cheek, matched evidence from a 2003 rape case, and he was convicted of that crime.

The Maryland Court of Appeals ruled that a state law authorizing DNA collection from people who had been arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Justice Kennedy wrote in the majority opinion that the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances. It was, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Such identification, he said, “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

The information retrieved through DNA testing as performed by law enforcement officials is limited, Justice Kennedy wrote, and whether “the testing at issue in this case reveals any private medical information at all is open to dispute.”

Antonin Scalia wrote the dissent and questioned the purpose of collecting the DNA swab:

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

The comments flow:

Akhil Reed Amar and Neal K. Katyal think the decision was correct and that Scalia got his history wrong:

His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.

Jeffrey Rosen thinks Scalia's is one of the best dissenting opinions in court history:

Scalia concludes his inspiring dissent by noting the tremendous stakes in the case, and the dangers posed by the Court’s uncritical approval of DNA testing of arrestees—a decision that will affect the “nearly one-third of Americans [who] will be arrested for some offense by age 23.” He predicts that although “the Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver”—namely, that DNA testing will be limited to those arrested for serious crimes such as felonies—the logic of the decision would, in fact, allow DNA tests to “identify” those arrested for traffic offenses. He then directly addresses American citizens, in rousing words that he read from the bench: "Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” And he ends with one of his most memorable images: “Perhaps the construction of such a genetic panopticon is wise.  But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

The police need warrants needed to put GPS devices on cars.

This wraps up another case we first discussed in the fall.

From the Washington Post:

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

More from ScotusBlog, including links to all relevant court documents.

Fourth Amendment RIP?

Grits for Breakfast points to several stories suggesting that the 4th Amendment may be increasingly irrelevant. Recent technological developments (GPS, wireless communicatons, credit card use) have put more and more private information in the public sphere, which previous court rulings have argued is fair game for investigators.

ScotusBlog: Review of the Court’s Fourth Amendment cases.

Can the Police Force You to Identify Yourself?

My apologies to one of my classes for not being able to directly answer this question yesterday, but the Supreme Court has made some peculiar decisions on this point and I didn't want to get it wrong. The case I was thinking of was Hiibel v. Sixth Judicial District Court of Nevada, which: held that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment. Under the rubric of Terry v. Ohio, 392 U.S. 1 (1968), the minimal intrusion on a suspect's privacy, and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in criminal activity, justified requiring a suspect to identify himself.


The Court also held that the identification requirement did not violate Hiibel's Fifth Amendment rights because he had no reasonable belief that his name would be used to incriminate him; however, the Court left open the possibility that Fifth Amendment privilege might apply in a situation where there was a reasonable belief that giving a name could be incriminating.
So it seems that yes police can, at least in Nevada and the U.S. Supreme Court said they can. But part of the answer is: It depends on what state you are in since you are more likely to be pulled over and searched by a state official than a federal official. In Texas, Grits for Breakfast has this to say: "Currently, Texans don't have to identify themselves unless they're actually arrested, and it's not a crime if you don't do so. In practice, of course, police can't write a ticket without the identifying information, so this would give them cause to arrest you and cart you off to jail (under authority affirmed by the US Supreme Court in Atwater v. Lago Vista, a Texas case)."


So the answer seems to be, in Texas you don't have to identify yourself unless you are being arrested, but the Supreme Court is willing to allow the state to mandate identification if it deems it necessary to conduct an investigation. Such changes might be underway. In the last legislative session a bill passed a Senate Committee that would have made failure to identify a crime. Shoudl we expect it to be reintroduced in January?
Some additional reading:
- When You Must Identify Yourself to the Police.
- ACLU: What to do if you are stopped by the police.
- Identify Yourself or Go to Jail. (scroll down)
- SB 1175: Relating to the prosecution of the offense of failure to identify.

On the Supreme Court's Use of History in Fourth Amendment Cases

For our upcoming discussion of civil liberties: Grits for Breakfast provides a link to a recently published critique -- The Fourth Amendment: History, Purpose, and Remedies, by Arnold Loewy --  of the Supreme Courts' Fourth Amendment rulings.

Grits highlights the following from a talk by Loewy:

Frankly, I would rate the Supreme Court’s use of history as spotty and inconsistent. Let’s compare, for example, Watson v. United States and Tennessee v. Garner. In Watson, the Court examined the history of the right to arrest without a warrant for a felony which the police officer has probable cause to believe was committed by the arrestee. The Court concluded correctly that at common law arrests for a previously committed felony without a warrant were permitted. Substantially, but not exclusively, because of this history, the Court upheld the right to make a warrantless arrest for a previously-committed felony.

So far so good, but there is one major question that the Court did not ask, despite the urging of Justice Marshall’s concurrence: That question is whether the concept of felony meant the same today as it did at common law when the “no need for a warrant” rule developed. The answer seems to be pretty clearly “no.” At common law, all felonies were both violent and capital. Consequently when a police officer saw a felon at large, it was likely a violent individual, who, if he escaped, would escape the hangman.

Watson, on the other hand, was a non-violent credit card defrauder, who in modern times, is a felon. Well, does history demand that this type of felon be treated the same way as the violent felons for which the common law did not require a warrant? My answer would be either “no,” or at least “not necessarily.” Surely the common law rule calling for the arrest of violent, capital felons tells us little about whether the same rule applies to non-violent defrauders, such as Watson.
Loewy highlights, repeatedly, the requirement that searches be "reasonable" but criticizes its consistency in how it defines what is and isn't reasonable, and whether the court thinks that it is its job to apply it in every case where a question is raised.

Again, an extended Loewy quote from Grits -- this involves a court case that stemmed from an incident in Lago Vistam where Highway 6 intersects I-45:

The operative word in ... the Fourth Amendment ... is “reasonable.” Indeed, in case after case, the Court has emphasized that the overarching principle of the Fourth Amendment is reasonableness. Most of the time when the Court cites “reasonableness” as the overarching principle, it does so to uphold a search; e.g. There is no need for a warrant here because the search comports with the overarching principle of reasonableness. Without regard to the correctness of those decisions, one would have thought that the same principle (if indeed it is a principle) would have applied in Atwater. But it did not. The Court conceded that as applied to Atwater herself, the arrest was clearly unreasonable. As the Court so starkly put it: “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.”

So, one might have thought that the finding of individual unreasonableness would have ended the case, but it did not. Rather, the Court continued: “But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.”

Yet just five years earlier, in Ohio v. Robinette, the Court had said: “We have long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness in turn is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the inquiry.”

I suppose that a cynic could say that it all depends on whose ox is gored. If the police win with a bright-line rule (as in Atwater) then bright-line rules are good. But if a citizen wins by employing a bright-line rule (as in Robinette) that is bad. I am inclined to favor flexibility (so that Atwater would have won, and frankly so would Robinette, if flexibility had been applied properly). But, however one might resolve that question, we can surely expect more consistency (and more reasonableness) from the Court than we saw in Atwater.

Student Strip Search Unconstitutional

By an 8-1 vote. I'm surprised.

The decision.

On Sobriety Checkpoints

Grits for Breakfast has a great post on a sobriety checkpoint bill being considered by the Texas Senate.

Sobriety checkpoints can help secure the greater good, if they are designed -- procedurally -- to narrowly focus on drunk driving. If not, they allow for random, arbitrary fishing expeditions, a hallmark of totalitarianism (at its most extreme anyway).

He outlines a bill designed to do just that, which he still opposes on principle, but his discussion helps clarify how procedural restrictions are essential in order to both protect the general welfare while securing individual liberty. In essence, this is a Fourth Amendment issue. What makes a search reasonable?

The Exclusionary Rule as of 2009

The NYT reports on the Supreme Court decision in Herring v. the United States -- a 5 - 4 decision -- which they tell us provides a further exception to the exclusionary rule, demonstrating the continued rightward tilt of the court:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule is fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warrants suppressing the evidence they found.

...

Justice Ruth Bader Ginsburg, writing for the dissenters, argued for “a more majestic conception” of the exclusionary rule, and a more categorical one.

The rule requires more than a cost-benefit calculus to deter police misconduct, Justice Ginsburg wrote. It also protects defendants’ rights, she said, and prevents judicial complicity in “official lawlessness.”

The case began when methamphetamines and a gun were found after Bennie D. Herring, an Alabama man, was arrested based on police officers’ mistaken belief that he was subject to an outstanding arrest warrant.

That belief was based on incorrect information in the computer files of a neighboring county’s police department. The warrant had been withdrawn, but the database had not been updated.

Calling the error “isolated negligence attenuated from the arrest,” Chief Justice Roberts said the lower courts had been correct in allowing the jury in Mr. Herring’s case to consider the evidence. He was convicted and sentenced to 27 months in prison.