Senate Approves Section 702 Reauthorization, Keeps Only The Bad Stuff

Legal Issues

from the two-more-years-before-we-get-to-do-this-all-over-again dept

The government had a few years to sort this out, but as usual, the final call came down to the last minute. Shortly after Section 702 expired at midnight, April 19, the Senate pushed through a two-year reauthorization — one pretty much free of any reforms.

This happened despite there being a large and vocal portion of the Republican party seeking to curb the FBI’s access to these collections because some of their own had been subjected to the sort of abuse that has become synonymous with the FBI’s interaction with this particular surveillance program.

The reauthorization passed to the Senate from the House had been stripped of a proposed warrant requirement and saddled with an especially expansive definition of the term “electronic communication service provider.” Here’s how Senator Ron Wyden explained it while speaking out against the amendment:

Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.

After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.

For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.

This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.

So, instead of reform, we’re getting an even worse version of what’s already been problematic, especially when the FBI’s involved. As the clock ticked down on this vote (but not really: the FISA court had already granted the Biden administration’s request to keep the program operable as-is until 2025), attempts were made to strip the bill of this dangerous addition and add back in the warrant requirement amendment that had failed in the House.

None of this worked, as Gaby Del Valle reports for The Verge:

Sens. Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have struck language in the House bill that expanded the definition of “electronic communications service provider.” Under the House’s new provision, anyone “who has access to equipment that is being or may be used to transmit or store wire or electronic communications.” The expansion, Wyden has claimed, would force “ordinary Americans and small businesses to conduct secret, warrantless spying.” The Wyden-Hawley amendment failed 34-58, meaning that the next iteration of the FISA surveillance program will be more expansive than before.

Both Sens. Paul and Dick Durbin (D-IL) introduced separate amendments imposing warrant requirements on surveilling Americans. A similar amendment failed in the House on a 212-212 vote. Durbin’s narrower warrant requirement wouldn’t require intelligence agencies to obtain a warrant to query for those communications, though it requires one to access them.

The version headed to the president’s desk is the worst version. The rush to push this version of the bill through possibly gained a little urgency when two unnamed service providers informed the government they would stop complying with FISA orders pretty much immediately if the Senate didn’t renew the program.

One communications provider informed the National Security Agency that it would stop complying on Monday with orders under Section 702 of the Foreign Intelligence Surveillance Act, which enables U.S. intelligence agencies to gather without a warrant the digital communications of foreigners overseas — including when they text or email people inside the United States.

Another provider suggested that it would cease complying at midnight Friday unless the law is reauthorized, according to the people familiar with the matter, who spoke on the condition of anonymity to discuss sensitive negotiations.

We’ll never know how empty these threats might have been or if the Intelligence Community would have even noticed the brief interruption in the flow of communications. Section 702 has been given a two-year extension in the form approved by the Senate, superseding the FISA Court’s blessing of one more year of uninterrupted spying if discussions over renewal blew past the April 19, 2024 deadline.

If you’re a fan of bipartisan efforts — no matter the outcome — well… enjoy your victory, I guess. But there’s nothing about this renewal debacle that can actually be called a win. Unless you’re the FBI, of course. Then it’s all gravy.

Filed Under: 4th amendment, fbi, fisa, nsa, ron wyden, section 702, surveillance

Senate Must Follow House’s Lead In Passing Fourth Amendment Is Not For Sale Act

Policy

from the make-it-happen dept

The Fourth Amendment exists for a reason. It’s supposed to protect our private possessions and data from government snooping, unless they have a warrant. It doesn’t entirely prevent the government from getting access to data, they just need to show probable cause of a crime.

But, of course, the government doesn’t like to make the effort.

And these days, many government agencies (especially law enforcement) have decided to take the shortcut that money can buy: they’re just buying private data on the open market from data brokers and avoiding the whole issue of a warrant altogether.

This could be solved with a serious, thoughtful, comprehensive privacy bill. I’m hoping to have a post soon on the big APRA data privacy bill that’s getting attention lately (it’s a big bill, and I just haven’t had the time to go through the entire bill yet). In the meantime, though, there was some good news, with the House passing the “Fourth Amendment is Not For Sale Act,” which was originally introduced in the Senate by Ron Wyden and appears to have broad bipartisan support.

We wrote about it when it was first introduced, and again when the House voted it out of committee last year. The bill is not a comprehensive privacy bill, but it would close the loophole discussed above.

The Wyden bill just says that if a government agency wants to buy such data, if it would have otherwise needed a warrant to get that data in the first place, it should need to get a warrant to buy it in the market as well.

Anyway, the bill passed 219 to 199 in the House, and it was (thankfully) not a partisan vote at all.

It is a bit disappointing that the vote was so close and that so many Representatives want to allow government agencies, including law enforcement, to be able to purchase private data to get around having to get a warrant. But, at least the majority voted in favor of the bill.

And now, it’s up to the Senate. Senator Wyden posted on Bluesky about how important this bill is, and hopefully the leadership of the Senate understand that as well.

Can confirm. This is a huge and necessary win for Americans' privacy, particularly after the Supreme Court gutted privacy protections under Roe. Now it's time for the Senate to do its job and follow suit.

[image or embed]

— Senator Ron Wyden (@wyden.senate.gov) Apr 17, 2024 at 3:30 PM

Filed Under: 4th amendment, 4th amendment is not for sale, data brokers, privacy, ron wyden, warrant

Senate Now Considering Section 702 Re-Up With A Dangerous Amendment Attached To It

Legal Issues

from the 702-but-make-it-worse dept

For a little while, it looked as though Section 702 surveillance might finally be curtailed, if not substantially reformed. Lots of House Republicans were irritated that some of Trump’s inner circle had been (inappropriately) targeted by FBI investigators taking advantage of the agency’s backdoor access to US persons’ communications collected by a foreign-facing collection program.

This was on top of the years of abuse the FBI has committed and continues to commit in terms of its warrantless access to communications collected by the NSA. Despite the FBI’s continuous promises to do better (and its continual failure to achieve that goal), far too many House members were willing to vote for a clean reauthorization of Section 702. And far too many — especially on the Democratic side of the aisle — were willing to vote down a proposed warrant requirements, something privacy advocates like Senator Ron Wyden have been trying to get written into law for years.

Not only did the warrant requirement fail, but the reauthorization effort moved from the House to Senate with something much, much worse attached.

The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.

This vastly expands the government’s collection authority under Section 702, moving on from the normal definition of “service providers” to cover places where communications are at rest, rather than being transmitted or received. Here’s how Marc Zwillinger, Steve Lane, and Jacob Sommer break down the wording of the Turner-Himes amendment:

[It] (1) drops the qualifier “communication” from the class of covered “service providers;” (2) makes access to communications-carrying equipment enough to establish eligibility; and (3) adds “custodian” to the list of individuals who can be forced to provide assistance. But unlike the FRRA, it then enumerates a list of business types that cannot be considered ECSPs, including public accommodations, dwellings, restaurants, and community facilities. 

This amendment was written in response to a FISA court ruling that told the government’s surveillance apparatus that the law — as it currently stood — did not cover the target of the proposed surveillance. It fell outside the statutory definition of “electronic communication service provider.” The FISA court suggested that if the ODNI (Office of the Direction of National Intelligence) and DOJ didn’t like the wording, they were welcome to take it up with Congress.

That’s exactly what they did. And now, two House reps have managed to attach an amendment that broadly expands the definition of “electronic communication service provider” to cover just about anything that might be a source where electronic communications can be collected.

Here’s how Senator Wyden described the amendment’s intended effects in his statement [PDF] during Senate discussion of the pending reauthorization:

Now, if you have access to any communications, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a wifi router, a phone, or a computer. Think about the millions of Americans who work in buildings and offices in which communications are stored or pass through.

After all, every office building in America has data cables running through it. These people are not just the engineers who install, maintain and repair our communications infrastructure; there are countless others who could be forced to help the government spy, including those who clean offices and guard buildings. If this provision is enacted, the government could deputize any one of these people against their will, and force them to become an agent for Big Brother.

For example, by forcing an employee to insert a USB thumb drive into a server at an office they clean or guard at night.

This could all happen without any oversight. The FISA Court won’t know about it. Congress won’t know about it. The Americans who are handed these directives will be forbidden from talking about it. And unless they can afford high priced lawyers with security clearances who know their way around the FISA Court, they will have no recourse at all.

Of course, those pushing the amendment claim nothing bad will happen if they give the NSA (and, by extension, the FBI) more collection power and more sources to collect from. Rep. Himes has responded to concerns by treating all criticism of the amendment as overblown.

Wyden’s statement points out the flaw of this argument: mainly that it assumes, with zero facts in evidence, that this will be the one expanded surveillance power that won’t be abused.

Supporters also claim that the provision has a narrow purpose and that the government does not intend to start tapping into every American’s phone line or wifi. But that’s not how this provision is written. And I would say respectfully that anyone who votes to give the government vast powers under the premise that intelligence agencies won’t actually use it is being shockingly naive.

It’s not just naïve. It’s asinine. Years of abuse by the FBI clearly demonstrates the FBI will abuse access to these new “service providers.” Years of surveillance power abuse by the NSA — an agency headed by officials with “collect it all” attitudes and willingness to continuously test the outer limits of the Constitution — makes the same statement: if you give the IC this power, it will be abused.

And the reps behind the amendment know it. As Wyden pointed out, the fact that carve-outs for coffee shops, hotels, restaurants, and community facilities were written into the amendment following the first signs of opposition make it clear even the amendment’s authors knew the proposed changes would be a vehicle for abuse, hence the quick move to exempt certain entities from the broad definitions they’re seeking to have written into law.

Considering this surveillance authority has already been abused by the government to target anti-police violence protesters, political campaign donors, and journalists, expanding the number of sources where communications can be collected only ensures exponential growth in the number of abuses.

What started as an effort that may have actually limited the FBI’s abuses by forcing it to obtain warrants has devolved into a proposed rewriting of the authority to vastly expand the government’s surveillance opportunities. If we can’t get a warrant requirement approved, the very least the Senate can do is ensure this amendment does not become law.

Filed Under: 4th amendment, fbi, fisa, jim himes, mike turner, ron wyden, section 702, spying, surveillance, warrant

Congress Decides To Give FBI Another Free Pass On Section 702 Abuses

Policy

from the I-guess-we're-just-going-to-let-the-FBI-cook dept

It looks like we’re headed to several more years of the same old abuse. The House vote on Section 702 reauthorization — something postponed several times since EOY2023 due to infighting and out-fighting — has indicated that whatever concerns people might have about warrantless access to US persons’ communications can be handled the next time Section 702 is up for renewal.

The fourth time (yes, the fourth) was the charm for House Republicans when the lower chamber of Congress on a bipartisan basis voted to renew a controversial spying law, not without plenty of hiccups along the way.

The House approved reauthorization of the Foreign Intelligence Surveillance Act, or FISA, by a vote of 273-147, on Friday, with most of the bill’s dissenters coming from the body’s civil-liberty minded ultraconservative and progressive factions.

The law’s strongest advocates come from the intelligence committee, who say FISA’s warrantless surveillance provisions are essential to protecting national security.

And there you have it. A clean reauthorization is now headed to the Senate. All the House Republicans who converted their Deep State conspiracy theories into a demand for a warrant requirement found themselves matched evenly with Democrats who refused to give the Republicans what they wanted, even if it would have resulted in better protections for all Americans, not just the Americans House Speaker Mike Johnson thought were worth protecting (i.e., just congressional reps).

A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.

“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”

But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.

So, there will be no warrant requirement contained in the House reauthorization. Instead, we’re stuck with what will likely be a clean re-up of Section 702 surveillance — something that includes FBI access to US persons’ communications that it has never not abused since it was granted access to this collection.

Members of the Senate have their own warrant requirement amendment to pitch, but it was thought the House — where Trump acolytes are suddenly enamored with the possibility of punishing the FBI for its excesses — might be the first place for a Section 702 warrant requirement to be voted into existence. Sadly, it was the other side of the aisle that ruined this, apparently unwilling to give House Republicans a win that would have resulted in better protections for their constituents.

The clock continues to tick down to the April 19 postponement. But, given what’s been seen here, a majority of representatives seem to feel maintaining the status quo is preferable to demanding the FBI respect the Constitution when accessing NSA collections. There’s a small chance the Senate (led by Ron Wyden’s endless pursuit of surveillance reform) can institute a warrant requirement. But, for the most part, the partisan infighting has led to nothing more than a blanket extension of the same stuff that has been problematic for years. And every year this issue goes ignored solidifies the FBI’s casual abuse of constitutional rights.

Filed Under: 4th amendment, accountability, congress, fbi, fisa, mike johnson, nsa, section 702, surveillance, warrant

Partisan Bullshit Tanks House Section 702 Reform Efforts

Politics

from the fuck-the-constituents dept

It took the FBI carelessly, stupidly, and unlawfully targeting members of Trump’s inner circle to make Section 702 program reform a thing that might actually happen.

It’s kind of astounding, considering the Snowden leaks provided a much better argument for reform, as well as the FBI’s long-documented history of abusing its access to Section 702 collections to engage in warrantless surveillance of American citizens.

But it wasn’t until a former Trump advisor and Trump acolyte in the House got caught up in the FBI’s dragnet that things started to look a little grim for supporters of clean reauthorization. Years of abuse was considered fine right up until it affected people who mattered… at least to themselves and the former president they idolize.

There’s been plenty of opposition to unchecked surveillance over the years, but it has almost always been led by Senator Ron Wyden. Wyden’s efforts have been shot down by his own colleagues, who have been unwilling to challenge the Intelligence Community’s claims nothing about any surveillance authority should ever be changed because terrorism.

More than two decades after the 9/11 attacks, this attitude remains in full force. But it has been made worse by hyper-partisanship — something actively encouraged by Donald Trump during his term in office and made worse by Republicans who both want to ingratiate themselves with a former president as well as show their voting base they’re doing something to address Deep State conspiracies they’ve been stoking since Trump first took office.

The thing is this could have led to meaningful reforms, even if the motivations were highly suspect. As for the FBI, it offered only two arguments in defense of its warrantless access to US persons’ communications: (1) TERRORISM!, and (2) [hilariously] pretty much all of our searches of Section 702 collections are unlawful if you bring the Fourth Amendment into it.

The vote on extending Section 702 has been pushed back several times. Reform efforts (again led by Wyden) have been mounted. The rep heading the House Intelligence Community also pushed his own set of “reforms,” but they did nothing more than provide protections to congressional members who might find themselves subjected to the FBI’s continuous surveillance abuses.

The vote in House on proposed reforms and Section 702 reauthorization has given the FBI a free pass until the next renewal. As Elizabeth Nolan Brown notes for Reason, Democrats unwilling to give Republicans what they wanted (even if it meant better protections for their constituents) overwhelmingly voted in favor of an unaltered continuation of everything that’s been abused for years.

A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.

“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”

But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.

There’s the partisan split. That’s how you end up with a tie, which means the unaltered Section 702 moves on to the Senate for a vote. Had just a few Democrats been willing to place the concerns of Americans ahead of their own antipathy towards those on the other side of aisle, a warrant requirement might have been put in place on the House side of things.

But that didn’t happen. And part of the reason that didn’t happen is because the top-ranking Democrat on the House Intelligence Committee decided to swing votes by lying to his fellow representatives. Dell Cameron brings the news and the screenshots:

Cameron’s post for Bluesky says:

The head Dem on House Intel was caught by Politico reporter blasting disinformation out to colleagues ahead of a vote on the 702 wiretap program

Following that were screenshots of tweets (or whatever the fuck) made by Politico reporter Jordain Carney about the last-minute lobbying performed by Congressman Jim Himes, a Democrat representing Connecticut.

If you can’t see/read the screenshots, here’s what they say:

Peak into some of the behind-the-scenes lobbying on 702 ahead of today’s vote:

Himes sent a text to colleagues, explaining that he opposes warrant requirement, calling it an “extreme amendment that goes far beyond” what PCLOB [Privacy and Civil Liberties Oversight Board] recommends, per message I saw,

But…

Sharon Bradford Franklin (chair of the PCLOB, speaking in individual capacity) told me this morning: “I strongly disagree with the characterization” of the amendment “as going far beyond what the PCLOB recommends”

Called it “consistent” and in many ways “similar” to majority rec

Added that PCLOB report notes it would support Congress going further and said the amendment includes similar exceptions to what PCLOB recommended

In other words, Rep. Himes didn’t like what he was hearing from the PCLOB (if, indeed, he bothered to check its views at all) and didn’t want the Republicans to get a win, so he actively misrepresented the PCLOB’s views to swing votes in favor of clean reauthorization. We’ll never know how many Democrats he swung to his side by doing this but the voting tally suggests a lot of Democrats either bought into Himes’ bullshit or simply couldn’t bear giving House Republicans a win… even if that win would have respected Americans’ rights and (as a bonus) shut down the pro-surveillance efforts of the Republican leader of the House Intelligence Committee.

This now moves on to the Senate, which has its own suggestions for reform. Fortunately, Ron Wyden is a senator, which means there’s still a chance the FBI will be subject to warrant requirements if it wants to search NSA data for US persons’ communications. Here’s the latest from Wyden, who has spent his entire career pushing back against surveillance power expansions:

U.S. Senator Ron Wyden, D-Ore., vowed to oppose legislation passed by the House of Representatives that would reauthorize Section 702 of FISA and expand warrantless surveillance, in a statement today. 

“The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Wyden said. “It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. I will do everything in my power to stop this bill.”

Section 702 remains, at least partially, on the ropes. The FBI’s abuses might finally see themselves curtailed by codification, something that would be far more permanent than its own voluntary oversight efforts or the FISA court’s periodic reprimands. No matter how disingenuous the effort being made by many Republicans is, the end result would be better protections for all Americans — something that can’t be easily undone no matter who’s sitting the White House in 2025.

Filed Under: 4th amendment, fbi, mass surveillance, nsa, partisanship, section 702, surveillance, warrants

Court Calls Out BS ‘Driving While Black’ Traffic Stops While Tossing Felony Possession Conviction

Legal Issues

from the another-pretext-vanishes-under-scrutiny dept

While it’s not ultimately a factor in the court’s decision, it’s nice to see a court call out biased policing while discussing the merits of the case. This decision [PDF], handed down by an Illinois state appellate court, makes it pretty clear the court believes this stop would never had happened if the driver happened to be white. (via FourthAmendment.com)

It’s futile to believe biased policing isn’t the norm in the United States. There’s simply too much data to dispute. In this decision, even more data is presented that makes it clear “driving while black” (DWB) is considered reasonable suspicion for a traffic stop and, often, a vehicle search by far too many US law enforcement officers.

This one starts with a pretext: a minor traffic violation three officers hoped to convert into a search of the vehicle the black man was driving.

Deshaun Carpenter was driving an “older model” Dodge Nitro with one broken taillight and a small object suspended from the rearview mirror when three officers curbed the car, ordered Carpenter out, and asked whether “narcotics” or “weapons” were in the vehicle.

As courts have often noted in cases like these, any pretext will do as long as the pretext holds up. In this case, it didn’t. As soon as the officers were questioned in court during the trial, the pretext fell apart.

An officer admitted on cross-examination that a single broken taillight was not a lawful basis for a stop.

There goes that pretext. The officers had a backup plan, though. It was the “small object suspended from the rearview mirror.” And that form of obstructed driving might have held up under cross-examination… if the officers had bothered to mention this alleged moving violation once during 20 minute traffic stop and vehicle search.

And in the body-camera footage, officers never mention the obstruction hanging from the rearview mirror.

Both pretexts were invalidated by an officer’s admission and the officers’ complete disinterest in this supposed issue during the traffic stop.

After taking Carpenter out of the car, officers peppered him with questions about drugs and weapons. Carpenter insisted he had borrowed the car from a friend of his girlfriend. Unhappy with the lack of immediate findings, officers spent the next thirteen minutes searching the car. A gun was found embedded between the metal frame and the cushioning of the drivers seat, which led to felony possession charges for Carpenter, as he was forbidden to possess a handgun due to a previous felony conviction.

Here’s where officers found the weapon they insisted Carpenter must have known about:

Carpenter first moved to have the evidence suppressed as the fruits of an unconstitutional search. That seemed to be the smart way to go but, for some reason, his lawyer decided it wasn’t and withdrew the motion. A bench trial ended with a conviction, leaving Carpenter with the sole option of arguing the state did not provide enough evidence to support his unlawful possession charge.

One of the two officers involved in the stop and search (Lt. Piechocki) claimed reasonable suspicion to further the search was due to the fact that Carpenter “kept looking” at the cops (Officer Pizzo and Officer Brienzo) as they searched the car. He also claimed the fact that Carpenter “kept looking through the back window” suggested Carpenter knew there was something illegal in the car.

The court says these assertions are, at best, laughable. First, Lt. Piechocki had ordered Carpenter to turn around and face the back of the car, making it inevitable that he would “[look] through the back window.” Second, the court notes it’s perfectly natural for drivers to watch officers search their cars. That’s just a thing people do.

In reaching this conclusion, we reject the State’s contention that “ample grounds” permitted
the trier of fact to infer that Carpenter knew about the embedded handgun. The State speaks of Carpenter’s “nervous conduct in three times looking through the rear window as the officers searched the front seat[ ] and the fact that the seat [Carpenter] was sitting on contained an abnormal rip and a hard object which was later revealed to be a firearm.” But we review all the evidence, not some. Common sense informs us that anyone stopped by three officers might appear nervous to an officer. Moreover, who would not look through the rear window to see what the officers were doing?

Indeed, the officers had ordered Carpenter to stand facing the rear window while they searched the car and him. Contrary to the dissent’s incorrect claim, we do not assert the officers ordered Carpenter to look through the window—the officers ordered Carpenter to face the rear window. Thus, Carpenter’s looking complied with the officer’s orders. To equate cooperation with consciousness of guilt assumes wrongdoing regardless of what happened. Moreover, compliance meant nothing to Piechocki, who had fixed in his mind the conclusion the dissent reaches: Carpenter must know a handgun is in the car, which is a preconceived notion and not a reason, a pernicious presumption and not a rational inference.

The fact that a gun was (very eventually) discovered under the driver’s seat does not mean Carpenter knew it was there or that it was his. Nothing in the case tied him to possession of the vehicle, one he steadily maintained he had borrowed. Even the cops who spent thirteen minutes in the front of the car failed to detect it while sitting in the driver’s seat.

And that’s where the court drops a pretty fucking great cite, mocking the officers for their testimony that Carpenter must have been able to detect the hidden object even when it took them nearly 15 minutes to discover the gun themselves.

Finally, although the State describes a driver’s seat with a slight rip as “abnormal,” nothing in the record supports that assessment. On the contrary, Piechocki agreed that the car appeared to be “an older model,” and Pizzo and Brienzo sat on the rip and never noticed it. As for Carpenter sitting on a “hard object,” two trained officers did too and never reported feeling a “hard object.”
Nor does the record support that, unlike Pizzo and Brienzo, Carpenter would more likely feel the presence of a hard object. Cf. Hans Christian Andersen, The Princess on the Pea, in Fairy Tales and Stories 24, 24-25 (Signe Toksvig ed., 1921) […] That evidence relates to an inference about Carpenter’s knowledge. But, as two trained officers did not feel the presence of the handgun under the seat, nothing in the record supports a reasonable inference that Carpenter would have sensed it.

I love it! One can only imagine the reactions of the officers when this decision hit their desks.

Having dispensed with this so-called evidence of a crime, the court says the conviction cannot stand. Nothing connects Carpenter to the gun it took officers 13 minutes to discover in a car Carpenter had borrowed from a friend of a friend.

But before it arrives at this conclusion, it does the equally important work of pointing out this stop likely never would have happened if the driver had been white. And the court has receipts. (All emphasis mine.)

What is known as “driving while Black” (DWB) is a pernicious reality that corrodes trust in law enforcement and the legal system. DWB involves police using “stereotypical thinking and hunches” and “dubious investigative techniques” in traffic stops. Commonwealth v. Feyenord, 833 N.E.2d 590, 604 (Mass. 2005) (Greany, J., concurring). Numerous studies have extensively documented the unsettling reality of DWB. See Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736 (2020),
https://5harad.com/papers/100M-stops.pdf [https://perma.cc/2Y9S-VLFA] (analyzing nearly 100 million stops across nation between 2011 and 2018 and finding Black drivers were less likely to be stopped after sunset when “veil of darkness” masked race); Ill. Dep’t of Transp., Illinois Traffic and Pedestrian Stop Study 2022 Annual Report: Pedestrian Stop Analysis 18-19 (2023), https://idot.illinois.gov/content/dam/soi/en/web/idot/documents/transportation-system/reports/safety/traffic-stop-studies/final–part-i-executive-summary-pedestrian-6-30-23.pdf [https://perma.cc/ZUE8-2TFR] (racial profiling possible factor in traffic stops); see also Pascal Sabino, Cops Rarely Pull Over Drivers In Their Own Neighborhoods, Data Shows. Motorists In Black Neighborhoods Aren’t So Lucky, Block Club Chi. (Oct. 27, 2021), https://blockclubchicago.org [https://perma.cc/PHC2-JEMD] (mapping all 327,224 traffic stops by Chicago police in 2020 and finding “tremendous bulk of drivers” stopped in neighborhoods on the South and West sides and “few drivers” stopped in mostly white neighborhoods on North Side).

[…]

Addressing the specter of DWB is crucial to the dismantling of this systemic injustice. Several essential indicators of DWB are laid bare by the evidence, including (i) minor infractions as a pretext for investigating unrelated suspicions; (ii) stereotypes or assumptions about race based on police conduct or statements during the stop; (iii) prolonged detention inconsistent with the nature of the stop; (iv) a search without proper justification, usually based on stereotypes rather than reasonable suspicion, (v) unequal enforcement, such as pulling over a person of color, for a violation seldom of consequence in a white neighborhood; (vi) targeting neighborhoods or areas predominately populated by people of color; and (vii) use of disrespectful behavior, aggression, or excessive force by police. Individually or together, the elements do not indicate or imply racial bias, and most police officers strive to act properly and respectfully. Nevertheless, the more indicators, the more likely the stop was for DWB.

Judges ensure that the law is fairly and consistently applied to all. The dissent’s critique that “this issue [(DWB)] was never raised by Carpenter” repudiates the long-standing appellate
court commitment to upholding the rule of law by exercising its authority. Relatedly, despite our discussing DWB generally and not on the merits, the dissent curiously treats our observations as an adjudication. […] In our view, abstaining from saying anything about DWB, which our dissenting colleague urges us to do, condones the officer’s actions here and continues to normalize a practice that exposure, not silence, will eliminate.

The dissent is disingenuous. As noted here, the dissent treats the majority’s raising of biased policing as a basis for its finding the state did not have enough evidence to prosecute the unlawful possession charge. But the majority simply points out this stop would likely never have happened if the driver were white, given that neither pretext for the stop justified the stop.

Second, the dissent surely knows raising claims about racial bias are far more likely to occur during civil litigation. During criminal trials, it’s extremely rare for a defendant to raise the issue of biased policing because it’s usually not germane to discussions about probable cause (for suppression requests) or other challenges of evidence. This is simply a judge pretending they don’t know how the system works so they can side with officers who used two deficient pretexts to engage in the warrantless search of a car — a fishing expedition that managed to result in a “catch” after 13 minutes of rooting around in the vehicle.

It’s a minor decision that sets no precedent. But it’s an important one that shows this appellate court is unwilling to give cops a pass just because they can find a pretext for a stop. Pretexts have to hold up under scrutiny and these didn’t. And the officers’ own recordings undermined their desperate attempts to turn normal driver behavior into something suspicious enough to justify everything they did after pulling over someone for failing to be white while operating a vehicle.

Filed Under: 4th amendment, biased policing, driving while black, pretextual stops

New Jersey Sued Again For Giving Cops Access To Newborn Babies’ DNA

Legal Issues

from the I-guess-getting-sued-is-easier-than-respecting-the-4th dept

It appears the New Jersey Department of Health still believes the state’s residents are better served by giving law enforcement another way to dodge the Constitution.

The Department of Health was sued two years ago by the state’s Office of the Public Defender (OPD). That lawsuit targeted the state’s peculiar practice of holding on to newborns’ blood tests for nearly a quarter century and turning these over to investigators who just don’t feel like following the Fourth Amendment rules.

Here’s what triggered that lawsuit:

Plaintiff New Jersey Office of the Public Defender (OPD) recently learned that the State Police has successfully subpoenaed a newborn blood spot sample from the Newborn Screening Laboratory that belonged to a child who is now approximately nine years old. The reason the State Police subpoenaed the sample was so that it could perform a DNA analysis on the sample and tie the child’s father, who became OPD’s client, to a crime that was committed in 1996.

By serving a subpoena upon the Newborn Screening Laboratory, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant so that it could obtain a buccal swab from OPD’s client to perform an analysis of his DNA. By obtaining the child’s blood spot sample from the Newborn Screening Laboratory, it was able to perform a DNA analysis on the child’s blood and then use those DNA results to form the basis of an affidavit of probable cause to obtain a warrant for a buccal swab from OPD’s client. OPD’s client was later criminally charged.

This is a public records lawsuit, filed in conjunction with the New Jersey Monitor after the Department of Health refused to turn over records detailing the frequency of requests for blood samples by state law enforcement agencies, as well as the names of the agencies engaging in this unconstitutional dodge.

Now, it’s being sued by parents who did not realize their infants’ blood samples would not only be held for nearly a quarter century, but were accessible with nothing more than a subpoena. The Institute for Justice is representing two mothers (so far) who were never told this sort of thing was happening, nor given any opportunity to opt out. Here’s IJ’s Daryl James and Brian Morris with the details for the Daily Beast.

Without telling parents, the state has stored samples from each baby born since the 1970s, creating a secretive database with millions of entries. Blood samples stay on file for 23 years. DNA data might last longer on third-party servers.

New Jersey does not say precisely what happens to the data, but the state gives itself permission to share the genetic markers it collects with anyone it wants for any reason, including law enforcement. The risk is not just hypothetical. New Jersey already has turned over infant blood samples to police agencies without a warrant, leading to criminal charges for at least one father.

Technically, parents can opt out of the screening if they object on religious grounds. But hospitals hide this option, and some families report threats of being reported to Child Protective Services if they refuse. A half-page handout from the New Jersey Department of Health claims “all” infants are “required by law” to give blood to the state.

The handout says nothing about long-term storage.

As the article points out, New Jersey isn’t the only state doing questionable things with infants’ blood and/or DNA samples. The thing about those states is that they’re no longer allowed to do these things, thanks to successful lawsuits.

The case builds on earlier lawsuits exposing invasive uses of baby blood samples without parental consent. Plaintiffs caught Texas turning over DNA data to the Pentagon for a national registry. Michigan was selling newborn blood for research. So was Minnesota. Court rulings forced all three of these states to stop.

New Jersey’s effort, however, raises multiple constitutional issues. First, there’s the bypassing of warrant requirements with the use of subpoenas issued to another government agency. Then there’s the storage of the blood for twenty-three years — something that allows the state to build a database of DNA samples just in case they might prove useful to law enforcement at any time in the future.

But that’s not how the Fourth Amendment works. Government agencies don’t get to stockpile potential evidence in hopes that it might help in investigations, including investigations that haven’t even been initiated yet. Even similar stockpiles — like plate/location info gathered by automatic license plate readers — are purged far more frequently of their data.

The lawsuit [PDF] filed by Institute for Justice asks for the court to order the state to either end the program or continue this collection only if parents are fully informed of the program’s details. It also asks for this program — if it’s allowed to continue — be opt-in only.

As it stands now, the program that was created to screen newborn babies for certain diseases has become just another way for cops to sidestep constitutional protections… for up to twenty-three years after a child is born. That’s downright dystopian and the state should have altered or ended this program long before being sued.

Filed Under: 4th amendment, dna, new jersey, njsp, police, subpoenas, warrant

Feds Now Adding Dragnet Searches Of YouTube Users’ Video Watching To Their Investigative Arsenal

Privacy

from the collect-it-all dept

All you need is Google. That’s how things have been going in the law enforcement world. If you don’t know who you’re looking for, just ask Google to do it for you. A variety of warrants that demand Google search its data stores for personal information (that might lead investigators to find potential suspects [who can then be properly targeted with more normal warrants]) have been standard operating procedure for years.

There’s no probable cause to believe Google has committed any crimes. Nor is there necessarily even any reason to believe Google is housing data pertaining to criminal activity. At best, these warrants — ones that seek anything from mass groupings of location data to information on people using certain search words when utilizing Google’s search engine — simply assume Google has collected so much data, it’s a logical place to start an investigation.

The most common form of these Google-centric warrants is the “geofence warrant,” a warrant that asks Google to provide certain information about anybody in a certain area at a certain time. These warrants make anyone in the area a criminal suspect and, if Google complies, citizens are at the mercy of investigators who have the power to decide who is or isn’t a criminal suspect, even when the geofenced areas include things like apartment complexes, churches, or heavily trafficked business areas.

The next most popular is the “keyword” warrant. Using even more specious reasoning, investigators approach courts with warrant affidavits attesting that Google houses information on Google searches that may be relevant to the investigation. Without a doubt, Google stores information about keyword searches. But just because it does store this info doesn’t mean the keywords provided by investigators have anything to do with the crimes being investigated.

This is the latest wrinkle in the Investigatory world. As Thomas Brewster reports for Forbes, keyboard warriors working for federal agencies are now using warrants and court orders to demand Google turn over information on users who may have watched certain videos that have been viewed tens of thousands of times.

Federal investigators have ordered Google to provide information on all viewers of select YouTube videos, according to multiple court orders obtained by Forbes. Privacy experts from multiple civil rights groups told Forbes they think the orders are unconstitutional because they threaten to turn innocent YouTube viewers into criminal suspects.

In a just-unsealed case from Kentucky reviewed by Forbes, undercover cops sought to identify the individual behind the online moniker “elonmuskwhm,” who they suspect of selling bitcoin for cash, potentially running afoul of money laundering laws and rules around unlicensed money transmitting.

In conversations with the user in early January, undercover agents sent links of YouTube tutorials for mapping via drones and augmented reality software, then asked Google for information on who had viewed the videos, which collectively have been watched over 30,000 times.

The feds couldn’t figure out how to set up a honey pot, nor could they figure out how to monitor these links on their own. Following these failures, they then asked a judge for permission to hassle Google into turning over information on (potentially) 30,000 different YouTube viewers. I’m sure it’s more nuanced than that, but that’s what the plain text conveys.

The unsealed court order wasn’t just fishing for a list of vague identifiers that could be winnowed down to a list of suspects and a follow-up warrant demanding actual identifying information on these ~30,000 YouTube users. No, it appears the feds led with the big ask, demanding names, addresses, phone numbers, and user activity for every viewer of these videos between January 1-8, 2023. AND(!!) it asked Google to provide IP addresses for all viewers who were not logged into (or did not possess) Google accounts.

And if you think that fishing hole is pretty fucking big, just keep reading. Brewster has tracked down a few other similar demands for YouTube viewer data and 30,000 viewers is actually on the shallow end of this metaphor. An attempt to find someone who called in a bomb threat resulted in this spectacular abuse of process:

[Federal investigators] asked Google to provide a list of accounts that “viewed and/or interacted with” eight YouTube live streams and the associated identifying information during specific timeframes. That included a video posted by Boston and Maine Live, which has 130,000 subscribers.

This was supposedly justified by the fact that one camera installed by a local business provided a continuous live stream of the area where the supposed bomb had been placed. (It does not appear that any bomb was actually placed anywhere, but a bomb threat alone is often enough to attract the attention of federal officers.)

If 30,000 users being subjected to a single federal law enforcement search is unequivocally bad, the search of perhaps 130,000 users is an almost unimaginable abuse of government power.

We still don’t know how these inexplicably broad requests were handled by Google, nor whether they were instrumental in the prosecution of criminal activity. The DOJ refused to comment on the court orders or the cases. Google has yet to say whether or not it complied with these ridiculous court orders. The court system itself hasn’t been much help to the general public, even though it’s more than willing to assist another government branch by acquiescing to its requests for secrecy.

It’s not just the Fourth Amendment in play here. There’s also the First Amendment. Much like in cases involving mass keyword searches, citizens should feel free to consume any non-illegal content they want without fearing the government may demand their content provider turn over their identifying info.

This is a scary step forward by law enforcement. Hopefully, Google has been resisting these clearly unconstitutional demands for data. And even more hopefully, courts will start seeing enough of these broad warrants, they’ll start shutting down this new form of government overreach.

Filed Under: 4th amendment, privacy, surveillance, video watches, warrants
Companies: google, youtube

10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment

Privacy

from the any-amount-is-fine-actually dept

Well, that’s the way it goes. Courts have been extremely reluctant to disrupt the long-term surveillance plans of law enforcement. If investigators can mount a camera on public property and keep it focused on areas visible by members of the public, no harm, no foul.

Not every court has reached this same conclusion. Notably, one federal court ruled in 2019 that long-term surveillance of someone’s home (even if just the outside of it) implicated the Supreme Court’s Carpenter decision. The Supreme Court took issue with long-term surveillance of individuals, specifically their movements over time as memorialized by their smartphones. Thus, obtaining months or weeks of location data now required warrants.

This court applied Carpenter to eight months of continuous pole camera surveillance, ruling that it had a similar impact on personal privacy.

[T]he Government has no business knowing that someone other than the occupant’s spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners’ hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.

This decision remains an outlier. Pretty much every other precedential decision says otherwise. That includes the Seventh Circuit Appeals Court saying 18 months of continuous pole camera surveillance isn’t a Fourth Amendment violation, even if it seemed to feel a wee bit bad about reaching that conclusion.

Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.

No such qualms from the Tenth Circuit, though. This case involves an investigation initiated by the Veteran’s Administration, which (thanks to a tipster) became suspicious Bruce Hay wasn’t quite as disabled as he said he was. So, the VA’s investigators began monitoring Hay as he went about his daily life, hoping to find evidence showing he was wrongfully helping himself to disability payments. (h/t FourthAmendment.com)

Here’s how the VA collected the evidence it used against Hays during his prosecution. From the decision [PDF]:

To investigate Mr. Hay’s mobility, officers feigned an operation involving deer poaching on a nearby farm so that they could monitor Mr. Hay from a closer distance. They also tailed him to medical appointments and other events. For a more robust record of his daily activities, they installed a pole camera on a school rooftop across the street from Mr. Hay’s house. The camera was remote controlled and activated by motion, and it recorded near constant footage of Mr. Hay’s house as visible from across the street. All told, the camera captured 15 hours of footage per day for 68 days.

This was part of an investigation that apparently lasted six years. In that context, maybe 68 days just doesn’t seem like that much? The Appeals Court isn’t worried about how long it lasted, though. That doesn’t really change anything in its analysis.

After first determining that a pole mounted camera aimed at publicly visible areas doesn’t raise Fourth Amendment implications, the court moves on to Hay’s invocation of the Carpenter decision. Hay’s argument is basically this: short-term surveillance may be OK under Carpenter, but the ultimate point of the Supreme Court decision was that long-term surveillance was unconstitutional without a warrant.

According to Mr. Hay, the recording of his house for an extended period of time (68 days in this case) catalogs his habits, patterns, and visitors in a way that ordinary physical surveillance could not duplicate. As he puts it, “the footage obtained painted an intimate portrait of Mr. Hay’s personal life,” including “when he entered and exited his home; who visited him and his family,” and “what Mr. Hay did on his own front porch.” He acknowledges that this activity took place in public but argues that “[w]hile people subjectively lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future.”

The Appeals Court disagrees. According to its take on that historic decision, it wasn’t the length of the surveillance, it was the type of surveillance.

That the surveillance took place over an extended period of time does not change the basic logic of the opinion—camera surveillance of a home visible to passersby does not constitute a search. Nor does Carpenter change the equation.

The Tenth Circuit isn’t alone in reaching this conclusion.

No circuit court has concluded that extended video surveillance of a house is a search under Carpenter.

What can be seen by the public in limited quantities isn’t suddenly a constitutional violation because the watching eye goes 68 days without blinking.

Carpenter acknowledged that individuals have a privacy interest in “the whole of their physical movements.” The pole camera across the street from Mr. Hay came nowhere close to capturing “the whole of his physical movements.” It could only capture his movements at a single location, outside his house. As soon as he left his house, the government could no longer track him by this means.

As the Tenth sees it, the surveillance wasn’t pervasive, in that it was limited to the exterior of the suspect’s house. And it wasn’t retrospective, like the harvesting of historical cell site location data from service providers. It may have been long-term but it didn’t expose anything anyone else in Mr. Hay’s neighborhood would have been able to see (even though they’d have to have stuck around for 68 days to see everything the government saw).

So, nothing to work with there if Hay tries to appeal this. And the final comments on this matter by the Tenth Circuit shows there aren’t going to be any reversals of course in the future. Given the modern day reality of smartphones, body cams, drones, and AI, the future will probably hold fewer Fourth Amendment protections.

As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.

The government gets to keep doing what it’s been doing for years. Sooner or later, an appeals court might take a flier on the Fourth in a long-term surveillance case, but as it stands now, unblinking eyes owned by the government are free to keep watch on anything visible to bystanders or passersby.

Filed Under: 10th circuit, 4th amendment, long term surveillance, surveillance, va

Court Tells FBI It Can’t Just Take A US Private Vault Customer’s Money Without Explaining Its Actions

Legal Issues

from the hoisting-the-federal-Jolly-Roger-isn't-enough dept

US Private Vaults is a private company, in multiple senses of the word. Despite the use of the acronym “US,” US Private Vaults is not a government entity. The service it offers aligns roughly with storage services federally insured banks offer: a secure place to hold valuables that is only accessible by those who have keys to the safety deposit boxes.

But there’s a crucial difference: US Private Vaults does not collect or store identifying information about its customers. The company also does not keep a set of duplicate keys. Its service is pretty much end-to-end encryption, but for physical property. The company can’t provide law enforcement with identifying info, nor can it unlock anyone’s storage boxes when presented with a warrant.

Those privacy features led the government to assume anyone seeking to use this service must be a criminal. That was pretty much its argument when it sought a warrant to search a US Private Vaults location in Beverly Hills, California.

However, the FBI told the magistrate that it would not simply take everything it found when it raided this location. Instead, it told a judge it would inventory the contents of any boxes it was able to open and contact box owners to return their property if it could find any identifying information. That’s not what actually happened. The FBI broke its own sworn promise to the magistrate and proceeded to take possession of pretty much every bit of property it found, apparently hoping to use civil forfeiture to retain possession forever.

The FBI was sued multiple times by US Private Vaults customers. In at least one case, a court has ordered the FBI to return the property it specifically told a magistrate judge it wasn’t actually going to take.

Another lawsuit against the FBI is moving forward again, thanks to a ruling by a California federal court. In this case, the FBI took $2,000 in cash from a box owned by Jeni Pearsons. The FBI can’t argue there was no cash in the box. As this XTwitter thread by Rob Johnson explains, Pearsons documented the contents of her vault box every time she visited. Her most recent photo of the box’s contents — which clearly shows the $2,000 in cash — occurred just a month before the February 2021 raid.

When confronted with this fact, the FBI refused to offer any argument in defense of its thievery. Instead, it argued it was above the law. The FBI invoked sovereign immunity — which is normally the sort of thing invoked by the top level of governments in international lawsuits. This move by the FBI suggests it had no real argument to support its taking of Pearsons’ money, only the small hope the court could be persuaded to pretend the FBI’s theft was an executive action beyond the reach of the US judicial system.

The good news is that it didn’t work. The court handling Pearsons’ case (she’s represented by the Institute for Justice, which is handling multiple US Private Vaults cases) has told the FBI the very least it has to do is explain itself.

The minute order [PDF] says the invocation of sovereign immunity won’t work here. The lawsuit will move forward.

It first notes the facts of the case, which show the FBI simply made $2,000 vanish without explanation.

Plaintiffs stored numerous valuable items in a safe deposit box at USPV, including approximately $20,000 in silver and $2,000 in cash. On March 22, 2021, pursuant to a warrant, the FBI searched USPV’s business premises and seized various property, including Plaintiffs’ safe deposit box. The FBI later returned Plaintiffs’ silver but not their cash, which had seemingly “disappeared.”

It then goes on to point out the FBI’s apparently deliberate misleading of the magistrate approving the USPV search warrant.

Notwithstanding her representations to the magistrate, [FBI agent Lynne] Zellhart spearheaded “a separate plan — concealed from the magistrate who approved the warrant — to administratively forfeit all boxes containing property worth at least $5,000 (the FBI’s minimum threshold for profitability), and to conduct Investigatory searches of the boxes for evidence to support the forfeitures.” Therefore, “[i]instead of honoring its promises to safeguard the safe-deposit boxes and return the contents to the rightful owners, the government instead … [broke] into the safe-deposit boxes to look for property to forfeit and search[ed] for evidence to support the forfeitures.” As part of that plan, Zellhart created “specialized one-time search procedures” that included the use of drug sniffing dogs, documenting “cash observations,” and sending copies of paperwork to the asset forfeiture unit.

It was nothing but a cash grab. The FBI told a judge one thing and then did something else entirely, solely for the purpose of enriching the FBI itself. The fact that almost no criminal charges have been filed clearly indicates this was never about stopping crime or criminals.

The court denied the Bivens claim, something that’s unsurprising since it’s almost impossible to hold federal agents accountable under this particular Supreme Court precedent.

But that doesn’t mean the FBI is off the hook. Other actionable claims were made and the bizarre invocation of sovereign immunity isn’t going to allow the FBI to escape this lawsuit. Taking cash without bothering to explain exactly why the government was right to do so is unacceptable. That claim can move forward.

Here, Plaintiffs allege that the FBI seized their property and never returned it. Moreover, Plaintiffs allege that the FBI has no apparent need for the property. For these reasons, Plaintiffs have pleaded a plausible Takings Clause claim, and the court DENIES the Motion with respect to this claim.

The Federal Tort Claims Act (FTCA) move ahead as well, thanks to the FBI’s unwillingness to abide by the promises it made to the magistrate judge when securing the warrant.

Here, the parties do not meaningfully dispute that Plaintiffs’ claims involve goods detained by law enforcement. Instead, the parties disagree regarding whether Plaintiffs have alleged that the property was seized solely for the purpose of forfeiture. Plaintiffs argue that they have made exactly this allegation, since they alleged the FBI seized only the nests for law enforcement purposes, then subsequently searched the individual boxes for contents sufficiently valuable to be forfeitable. The Government contends that Plaintiffs have alleged that the FBI seized the property for both Investigatory and forfeiture purposes.

The Government’s argument is unavailing. Plaintiffs specifically allege that the FBI’s warrant application “sought to seize ‘the nest of boxes themselves, not their contents.'” Moreover, Plaintiffs allege that the FBI planned to “administratively forfeit all boxes containing property worth at least $5,000 (the FBI’s minimum threshold for profitability), and to conduct Investigatory searches of the boxes to support the forfeitures.” These statements allege that Plaintiffs’ property was not seized for any other purpose than “for the purpose of forfeiture.”

The Government makes no additional arguments for dismissal of the FTCA claims. Accordingly, the Court DENIES the Motion with respect to those claims.

The lawsuit moves forward. The FBI will now be forced to deal with discovery. Considering it has already been shown to be a liar, the FBI may try to settle this suit, rather than hand over information that could prove useful to others engaged in litigation over the USPV raid. But if it still thinks it can win this, things could get very interesting in the next few months once the FBI starts handing over documents and communications related to this raid. But, no matter how this turns out, we have enough evidence on hand already that shows the FBI is willing to lie to judges to get what it wants.

Filed Under: 4th amendment, civil asset forfeiture, fbi, forfeiture, jeni pearsons, search and seizure
Companies: us private vaults