The NSA's new super digital spying facility in Bluffdale, Utah got plenty of attention about a year ago, thanks to a detailed article in Wired Magazine by James Bamford that revealed many details of the center's existence. Last week, on something of a whim, Forbes reporter Kash Hill, who was nearby for another reason, decided to just drive up to the facility to see what she could see. It turns out that it was surprisingly easy to drive right up to the parking lot (though she later realized she had missed two small signs, saying that the road was private and that trespassing was not allowed). Still, you'd think that the place, even while (or perhaps especially while) under construction, wouldn't be that easy to access. Amusingly, it appears that whoever the NSA hired to program their entrance sign has a sense of humor: However, the guards who eventually came to see what Hill was doing didn't have quite the same sense of humor, asking her repeatedly to delete all the photos she had taken, and taking her ID (and that of the other person in the car who, thankfully, happened to be a knowledgeable lawyer who was able to speak up for their rights). You can read the entire harrowing tale at that link above, but Hill is eventually allowed to leave, though she did agree to delete a couple images that showed the license plate on a guard SUV, realizing that she just wanted to get out of there. The whole story is a bit surreal.

Don't you just love Congress, where almost no bills actually are what they say on the tin? There's some buzz building online about the "Federal Restricted Buildings and Grounds Improvement Act of 2011" (or HR 347), which has been positioned as a simple updating of trespassing laws concerning federal grounds. However, as some are pointing out, hidden in there is quite the Easter egg that effectively outlaws protests near people who are "authorized" to be protected by the Secret Service (mainly the President and Vice President, but it could include a lot more as well). Only three Representatives voted against it, including Rep. Justin Amash who explained his concerns via Facebook:

Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it's illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it's illegal to be in that area and has no reason to suspect it's illegal.

Some government officials may need extraordinary protection to ensure their safety. But criminalizing legitimate First Amendment activity -- even if that activity is annoying to those government officials -- violates our rights. I voted "no." It passed 388-3.

The specifics of the law pretty clearly seem to make it a crime to do a standard form of protest, such as anything that "impedes or disrupts the orderly conduct of Government business or official functions" or just if someone "engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds...." As Amash notes, there can be times when it makes sense to protect certain individuals, but "disorderly or disruptive" conduct is a pretty broad brush... and it's one very frequently abused by law enforcement officials.

You know all those stories we've had about people being arrested for filming police? Quite often those people are charged with disorderly conduct -- which often seems to boil down to "that person did something law enforcement doesn't like." To then take that and say that anything that constitutes disorderly conduct on the grounds of a building where someone who is protected by the Secret Service is a crime, it appears to be wide open to abuse, and a pretty clear restriction on the free speech rights of anyone wishing to engage in normal and healthy protest of our political process.

On top of that, the punishment can be pretty severe. You can get up to a year in jail for being found guilty of these things, and that jumps up to 10 years if you are carrying a "deadly or dangerous weapon."

As Amash notes, there are legitimate safety concerns to be aware of, and there are issues with doing something that significantly impedes government regulations. But it's really not difficult to see how this bill could very, very easily be stretched to be used against those doing standard protesting against significant political figures.

Back in January, we wrote about a quite limited ruling by the Supreme Court in the Jones case, which said that placing a GPS device on a car represented a search and was trespassing. Where the court held back was in discussing the reasonableness of the search, and whether or not it was actually constitutional to do so without a warrant. Some expect that a future case might rule that those searches are reasonable and don't need a warrant, but apparently the FBI isn't taking any chances. It's supposedly shut down 3,000 such devices -- and is now having trouble retrieving many of them since it doesn't know where they are (it's apparently asked courts to allow it to turn the devices on solely for the sake of retrieving them). Of course, this raises a bigger question that isn't answered: why didn't the FBI just get a warrant to use those devices in the first place? If it had done that, then there wouldn't be any issue to deal with here at all... It seems that the only reason not to get a warrant is because they're conducting fishing trips, rather than targeting those where there's probable cause.

We've been following various cases involving courts and government regularly chipping away at the 4th Amendment. This has been especially true when it comes to GPS surveillance cases. While there have been a variety of different rulings in a variety of different courts, many federal courts have more or less said that law enforcement can spy on people at will with GPS devices (state courts have been a little less open to the idea). One interesting ruling on the federal side came out in August of 2010, when the DC Circuit ruled long term GPS surveillance required a warrant -- though was a bit unclear on what constituted "long term." Either way, this was the case that finally made it to the Supreme Court.

The Court came out with its ruling today, and it's a somewhat surprising defense of the 4th Amendment (pdf), saying that, yes indeed, the government first needs to get a warrant before attaching a GPS device to your car. This is a pretty big win for privacy advocates and those who believe in the general concept of the 4th Amendment. Update: As a few people have pointed out, it's not even that clear. Instead, it looks like they really punted. The court really stops just short of saying that a warrant is needed -- it just says that placing the device is a search. It's possible to interpret that to mean that placing the device was a reasonable search which didn't require a warrant. And that's what some are expecting.

Unfortunately, the win isn't as "clean" as it could have been. While it is a full 9-0 rout on the government's argument, the court is split on the reasoning as to why. The majority (five Justices) argues that a warrant is needed to attach a device to a car. Specifically, they argue that the process of putting the device on a car is a form of "search" (based on the idea that the government was trespassing), which requires a warrant. This leaves wide open the question of whether or not surveillance via existing GPS equipment also violates the 4th Amendment. And considering that many vehicles now have built-in GPS, and an increasing number of mobile phones do as well (which the government is almost certainly tracking), it seems like that's a key loophole left by the majority here. The majority basically punts on that issue.

The concurring opinion, by the remaining four Justices seeks to follow the ruling of the appeals court in saying that it's the long term surveillance that's the problem. It notes that someone out in public doesn't necessarily have an expectation of privacy, but longer term surveillance changes the equation. However, the majority swings right back to the "thorny questions" that many of us noted with the original decision: how long is "long term?"

That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.... What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

It's interesting to see that the split among the Justices doesn't fully fall along the usual "cliques" within the Supreme Court. The majority opinion was written by Justice Scalia, with Roberts, Thomas and Kennedy (a block that will often vote together)... but also with Sotomayor, who is usually expected to side with the other group. Sotomayor actually wrote a separate concurrence that basically explains why she mostly agrees with the other group... but more or less thinks it's too early to rule on those other issues, because this case can be decided on "a narrower basis." The larger concurrence comes from Justice Alito (who frequently goes with Scalia, Roberts and Thomas...) and is joined by Ginsburg, Breyer and Kagan. It argues that rather than focusing on trespassing and search, we should go straight to the question of "reasonable expectation of privacy," and (as noted above) such long term surveillance, even if some of that info is public, violates that expectation.

So, at the top level, this is a good ruling -- and surprising support for a bruised and battered 4th Amendment. However, it still leaves open plenty of questions, meaning that it's likely that we'll see a few more similar and/or related cases in the near future before the boundaries of the government's ability to spy on people without a warrant is more fully explored.

Chris J. contributes the latest in our series of absolutely ridiculous lawsuits. Apparently NY State Senator Jim Alesi is suing a couple and their homebuilder over a broken leg he suffered. But the real story is in how he broke the leg. The couple -- who it should be mentioned are constituents of Alesi -- were having a home built. While it was under construction, but no one was there, Alesi suddenly decided to just go into the house and have a look (he says he was checking it out "for a friend.") The door was locked, but he walked around back and found a basement door that was unlocked. Once inside, he tried to climb a ladder to get to the first floor, since no stairs had been built yet... and suffered serious leg injuries, requiring surgery. And now, he's suing the homeowners and the builder.

Yes, let's repeat that. This guy trespassed, broke into someone's home (that was under construction at the time), and then broke his leg while trying to climb a ladder, and then decides to sue about it. And he's a State Senator. This was not a house that was for sale. It was not open to the public in any way. Alesi was apparently cited for trespassing at the time, and everyone involved is apparently baffled that he's suddenly suing now, for something that happened a few years ago, and on something in which it appears that he was massively at fault.

Update: Via the comments we have the full complaint and the news that he's dropped the lawsuit and issued a typical politician's apology, after members of his own party started ridiculing the lawsuit and asking him to drop it.

Apparently, the movie studio execs in Hollywood who brought you such classic films as The Wedding Crashers only likes to glorify the idea of crashing parties when it's not their parties. They've evidently convinced politicians representing the state of California that rather than fixing some of the massive problems with the bankrupt state, they should create a special new form of trespassing law to stop party crashers. Essentially, the movie studios are upset that people kept sneaking into their big awards shows and related events, and they don't feel that existing trespassing laws are enough, so they want to throw such party crashers in jail for six months. Nice to know that Hollywood, and the politicians who work for Hollywood, have their priorities straight.

We've been covering the case of a couple named Boring (no, seriously, that's their last name) who got upset and sued Google after they found pictures of their house in Google's Street View offering -- even though Google lets anyone remove images they dislike. The couple claimed that the images invaded their privacy and devalued their home (how an accurate photo could devalue the home is an open question). The case was quickly dismissed, but the Borings appealed, in lovely language about how this was about Google trampling on their right to privacy. The appeals court has thrown out most of the case, but actually is allowing the claim of trespassing to move forward in the lower court. Indeed, many did point out in our comments that it appeared that the Google vehicle may have driven onto the Borings' driveway in the process of photographing the home. Of course, proving any actual damage from the trespass may prove a bit more difficult.

Last month, a court totally dismissed the lawsuit filed by Aaron and Christine Boring, who had complained about Google's Street View images of their home, suggesting that the company had driven onto their private driveway to get the photos. The court pointed out, correctly, that the Borings had no case because they could have availed themselves of the simple mechanism on Google to remove the images. Still, the Borings are now appealing, and turning this into quite the epic battle of small guy vs. big company:

"Whether the trespass is by a foreign king, or the royalty of big business, does not matter. The Borings, such as our American forefathers in millennia past, are entitled to proclaim, 'Google, Don't Tread On Me.'"

That seems to be overplaying their hand just a bit. As is the claim that the original ruling made them "Google slaves":

"This Court tells Google that it is okay to enter onto a person's private property without permission. I would not teach that rule to my child. This Court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it."

It's not like Google took over their property or anything. The Google Maps car looks like it pulled into, and backed out of their driveway -- which it may have confused as another road. It did no damage, and the end result -- the photo -- could have been easily removed by the family. This is hardly a case of a massive trampling of anyone's rights.