Stingray Memo From FBI To Oklahoma Law Enforcement Tells PD To Engage In Parallel Construction

from the fake-it-til-you-make-it dept

The concept of “checks and balances” kind of takes a beating when one branch of the government says it’s ok to lie to another branch. We’ve already seen the FBI tell law enforcement agencies — through extensive NDAs it makes them sign before they can deploy cell site simulators — that it’s better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence.

Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data — neither of which provide details on the technology actually being used.

Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler)

Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.

The problem is that this sort of “lead” often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won’t be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won’t be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant.

The memo also notes that the FBI “will use all appropriate legal means” to prevent Stingray use from being uncovered in discovery requests. Apparently, “all appropriate legal means” covers parallel construction.

What sets this apart from the FBI NDAs we’ve covered here previously is that this memo is limited to the local law enforcement’s borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it’s obviously going to be that much more concerned with controlling the narrative.

Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant.

In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used.

Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance.

According to the FBI’s new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used — including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ’s ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement — one that does a better job of reflecting the DOJ’s current stance on warrants and information dissemination.

Filed Under: 4th amendment, evidence, imsi catcher, oklahoma, parallel construction, stingray

Judge Tosses Evidence In Murder Case Where Suspect Was Located With A Stingray Device

from the because-no-one-ever-gets-a-warrant-until-a-court-decision-forces-them-to dept

This will likely be the most spectacular flame out of the Baltimore Police Department’s long history of warrantless Stingray use. The Maryland Special Appeals Court recently found that tracking people’s location using Stingrays is a search under the Fourth Amendment, meaning law enforcement will need to obtain warrants before using the devices. The fact that this finding doesn’t affect use previous to this decision (and there was a LOT of it) doesn’t mean other judges won’t arrive at the same conclusion independently.

The Baltimore Sun reports a suspected murder will likely walk away from charges after the suppression of “key evidence” obtained with Stingray.

On Monday, Circuit Judge Yolanda Tanner suppressed evidence found in Robert Copes’ apartment “with great reluctance.” Investigators said they found the blood of 34-year-old Ina Jenkins in Copes’ apartment. Jenkins’ burned body was found dumped across the street.

Homicide Detective Bryan Kershaw testified that he had suspected Jenkins’ killer lived nearby and sought a court order to trace a phone number she had once used to call a relative. The agency’s phone tracking unit traced the phone to the apartment, and Kershaw testified that Copes, 39, let him inside.

Judge Tanner was indeed reluctant to suppress the evidence, but as she noted, without the warrantless use of the Stingray, the Baltimore PD would have had nothing more than a photo and phone number. Because they were able to track the location of the phone, they were able to find Copes. After speaking to Copes at the apparent murder scene, officers obtained a search warrant for the apartment, but nothing for device they had already deployed. Judge Tanner doesn’t appear to be happy with the decision, but says it’s the only decision she can reach with the evidence at hand.

“I can’t play the ‘what if’ game with the Constitution,” she said, lamenting that it protects people from illegal searches even when the defendant is “likely guilty.”

Almost as surprising is Judge Tanner’s denial of the Baltimore PD’s “good faith exception” argument. Courts have excused far more egregious misbehavior in cases with far less “good faith” justification. In this case, there was no existing warrant requirement and Judge Tanner even granted the fact that the officers had acted in good faith under existing policies. However, she felt that was not enough to override the unconstitutionality of the Stingray search.

If nothing else impresses the seriousness of the warrant requirement on the Baltimore PD, this case probably will. No one likes seeing an accused murderer walk away from charges, especially when other evidence obtained with a warrant (but poisoned, thanks to the use of the Stingray to locate the suspect) pointed pretty definitively at Copes as the killer.

Closed prosecutions aren’t likely to be challenged — not with the warrant requirement only recently being established — but the BPD has to be concerned about its chances with other Stingray-related prosecutions still pending or in progress.

But it does seem prosecutors are interested in having the last word, if not in this case, then with Copes himself. This decision will be appealed and it could very well be overturned, using the same good faith exception Judge Tanner found inadequate to support warrantless Stingray use. Prosecutors have already taken a look at Copes’ jacket and found something else they might be able to lock him up for.

As the hearing concluded, prosecutors informed Tanner that police had filed new charges against Copes in connection with a rape that occurred in the 1990s.

Filed Under: 4th amendment, baltimore, robert copes, stingray, warrant

Unsealed Yahoo/FISA Documents Show NSA Expected Company, FISC Judge To Operate On Zero Information

from the shame-this-whole-system-of-checks-and-balances-can't-just-be-eradicated dept

Late last week, the Office of the Director of National Intelligence released a stack of documents from Yahoo’s challenge of the NSA’s internet dragnet. The new declassified and unsealed documents have been dumped into one, 309-page PDF along with everything the ODNI has already released — one of the small things the office routinely does to slow the dissemination of previously-unseen information.

Marcy Wheeler, being the hero she is, has waded into the bloated PDF and recovered more damning statements from FISA judge Reggie Walton — one of few presiding judges to seriously challenge the NSA’s methods and techniques.

What she’s uncovered is more evidence the agency considers itself accountable to no one. Not only was Yahoo expected to be litigating blindly — what with the government’s multiple ex parte submissions and its general refusal to discuss any specifics of its PRISM program — but apparently the FISA court was expected to adjudicate blindly. The NSA’s refusal to provide Reggie Walton with the information he needed to render decisions resulted in this irritated order.

The Court is issuing this ex parte order to the Government requiring it to provide clarification concerning the impact on this case of various government filings that have been made to the FISC under separate docket.

[snip]

lt is HEREBY ORDERED that the government shall file a brief no later than February 20. 2008, addressing the following questions:

1. Whether the classified appendix that was provided to the Court in December 2007 constitutes the complete and up-to-date set of certifications and supporting documents (to include affidavits, procedures concerning the location of targets, and minimization procedures) that are applicable to the directives at issue in this proceeding. If the answer to this question is .. yes,’” the government’s brief may be filed ex parte. If the government chooses to serve Yahoo with a copy of the brief, it shall serve a copy of this Order upon Yahoo as well.

2. If the answer to question number one is “no,” the Government shall state what additional documents it believes are currently in effect and applicable to the directives to Yahoo that are at issue in this proceeding. The government shall file copies of any such documents with the Court concurrent with filing its brief. The government shall serve copies of this Order, its brief, and any additional documents upon Yahoo, unless the government moves this Court for leave to file its submission ex parte, either in whole or in part. If the government files such a motion with the Court, it shall serve a copy of its motion upon Yahoo. The government shall also serve a copy of this Order upon Yahoo, unless the government establishes good cause for not doing so within the submission it seeks to file ex parte.

The government’s testy response was to point out it has never been obligated to provide anyone but the court with documents pertaining to its surveillance efforts..

Under the Protect America Act, then, the government has an unqualified right to have the Court review a classified submission ex parte and in camera which, of course, includes the unqualified right to keep that submission from being disclosed to any party in an adversarial proceeding before this Court.

As Wheeler points out, the documents Judge Walton ordered the government to turn over to the court did not arrive in full until after Walton had made it clear he wouldn’t force the government to hand these over to Yahoo as well.

The holdout document — the one that didn’t appear until the government was sure it wouldn’t have to provide Yahoo with this info — is key. It shows the government’s procedures for handling metadata had been misleadingly portrayed, not just to Yahoo, but possibly to the court as well.

Now, to be fair, in the original release, it was not clear that the government offered this much explanation for SPCMA [Special Procedures Concerning Metadata Analysis], making it clear that the procedural change involved making American metadata visible. But the government very clearly suggested — falsely — that SPCMA had no Fourth Amendment implications because they didn’t make Americans overseas more likely to be targeted (which the government already knew was the key thrust of Yahoo’s challenge).

The opposite is true: by making US person metadata visible, it ensured the government would be more likely to focus on communications of those with whom Americans were communicating. These procedures — which were approved more than two months, one document dump, and one court order agreeing to keep everything secret from Yahoo earlier — were and remain the key to the Fourth Amendment exposure for Americans, as was argued just last year. And they weren’t given to even the judge in this case until he asked nicely a few times.

The NSA has very little in the way of effective oversight. It has even less opposition in terms of checks and balances even when facing a judge clearly exhausted by the agency’s obfuscation and abuse. An effective challenge of NSA surveillance in court — even a regular one — is an uphill battle. In the FISA court, where it’s allowed an “unqualified right” to present all its assertions and evidence without facing anything more adversarial than a FISC judge, it’s completely impossible. Yahoo fought with pretty much every appendage tied behind its back. An unsuccessful challenge was a foregone conclusion. But, if nothing else, its long tangle with the NSA dragged some of its so-called secrets out of the shadows. That’s not a win but it’s far better than the alternative — where the government’s foremost intelligence agency is allowed to rewrite the rules as it goes along with the administration’s implicit support — and keep the public from ever finding out just how much domestic surveillance slack it’s managed to cut for itself.

Filed Under: 4th amendment, doj, fisa court, fisc, mass surveillance, nsa, odni, oversight, reggie walton, surveillance
Companies: yahoo

DOJ Deploys Highly-Questionable Legal Arguments In Attempt To Save FBI's Hacking Warrants

from the let-us-tell-you-how-to-read-the-applicable-statutes-and-precedent dept

The proposed Rule 41 changes recently adopted by the US Supreme Court can’t go into force fast enough for the FBI. The changes — if approved by Congress (which needs to do nothing more than literally nothing for this to happen) — would allow it to hack computers anywhere in the nation by removing jurisdictional restrictions.

Its decision to keep a child porn site up and running in order to deploy a hacking tool to sniff out obscured user information now appears to have been a colossal mistake. The warrant for the search performed by the FBI’s NIT was issued in Virginia, but the actual searches took place all over the nation. While the seized server may have been located in the state, the users identified by the NIT were located as far away as the opposite coast. The FBI’s decision to ignore jurisdiction limits under Rule 41 is now costing it loads of evidence.

Judges in Massachusetts, Oklahoma and Kansas have found the searches to be illegal because they’re based on invalid warrants. The government is now fighting these suppression orders. In Oklahoma, it recently entered its challenge of the court’s decision to suppress evidence obtained with the NIT, using an interesting take on Rule 41 that attempts to align it with the infamous All Writs Act — mainly that Rule 41 should be construed liberally to allow the FBI to do anything Congress hasn’t expressly forbidden it to do.

Rule 41(b) is meant to be applied flexibly, not rigidly. United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992). When emerging technologies create a situation in which the specific language of Rule 41 does not explicitly permit a warrant, the Supreme Court has concluded that Rule 41 “is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” United States v. New York Tel. Co., 434 U.S. 159, 169 (1977). The Supreme Court goes on to explain that a flexible application of Rule 41 is supported by Fed. R. Crim. P. 57(b), which provides in the absence of controlling law, “a judge may regulate practice in any manner consistent with federal law, these rules and the local rules[.]”

Just as the DOJ government would prefer we focus on a case that’s almost four decades old (1979’s Smith v. Maryland) when discussing bulk surveillance, Stingray devices and cell site location info, it wants us to page through late 70s court decisions when discussing the FBI’s actions during the last couple of years.

In the middle of its paragraph stating that courts should be granting the FBI much more leeway when it deploys previously-unused investigative techniques, the DOJ slips in a reference to 1977’s US v. New York Telephone Company — the same Supreme Court decision it says justifies its use of the All Writs Act to force Apple to comply with demands to unlock encrypted iPhones.

The problem with the DOJ’s argument is that this isn’t a case where a warrant isn’t “explicitly permitted.” Warrants were permitted, but deployment was supposed to be limited to the jurisdiction where they were issued. The DOJ basically wants the court to forget its position as a check against government overreach and validate the FBI’s invalid warrants. In doing so, it misleadingly portrays the Supreme Court’s statements on the matter by selectively quoting from the decision. The wording surrounding the DOJ’s pull quotes only shows the court determining that Rule 41(h) does not restrict warrants to justifying the search and seizure of “tangible items.”

Although Rule 41 (h) defines property “to include documents, books, papers and any other tangible objects,” it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41. Indeed, we recognized in Katz v. United States, 389 U. S. 347 (1967),which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U. S., at 354-356, and n. 16 See also Osborn v. United States, 385 U. S. 323, 329-331 (1966).

This obscures the real issue here: Rule 41(b), which currently limits deployment of warrants to the jurisdictions where they were issued.

Going beyond this legal sleight of hand, the DOJ also claims that the entire two-week period it ran the child porn site while it deployed its NIT was fraught with “exigent circumstances.”

The magistrate judge’s Report and Recommendation rejects the assertion that exigent circumstances would have justified the warrant. The judge’s analysis identifies the underlying exigency as being the “downloading and distribution of child pornography,” exigent “only because the Government opted to keep the Playpen site operating while it employed the NIT.” Doc. 42, p. 27. The exigent circumstances that would have justified the use of the NIT, however, were tied to the on-going rape and abuse of children—as opposed to simply its depiction.

Even if you buy the DOJ’s argument that a two-week period — in which warrants were obtained — is still somehow “exigent,” you have to get over the hurdle that exigent circumstances is almost always used to salvage the results of warrantless searches. It can’t be used — or at least hasn’t been used until now — to salvage the warrants themselves. The court here declared the warrant to be “void ab initio,” meaning the warrant was never valid at any point.

Circumstances cannot be declared “exigent” if the time exists to obtain warrants. The DOJ’s argument here isn’t even coherent enough to be circular. It’s simply nonsensical. Either the situation is exigent and warrants must be put on the back burner, or circumstances are not exigent and warrants can be obtained. It can’t be both things at once, even if it would be oh so convenient for the DOJ if they were.

Exigent circumstances or not, the warrant obtained was invalid. The DOJ is hoping to turn a search with a void warrant into a warrantless search in order to bypass the Rule 41(b) restrictions it argues one paragraph earlier shouldn’t prevent it from performing its searches wherever it feels like it.

The worst case scenario, though, is what could happen if everything falls into place for the DOJ. If the jurisdiction limitations are removed with the Rule 41(b) changes, future NIT warrants would be valid and suppression would be nearly impossible. But if the court buys its “exigent circumstances” argument, the FBI may feel more comfortable relying on the exception… and begin deploying its hacking tools anywhere it feels like without ever running it past a judge.

Filed Under: 4th amendment, child porn, doj, fbi, hacking, nit, playpen, warrant

National Intelligence Office's Top Lawyer Fires Off Spirited Defense Of Bulk Surveillance, Third Party Doctrine

from the "in-order-for-programs-to-remain-legal,-I-must-view-it-this-way" dept

Robert Litt, General Counsel for the Office of the Director of National Intelligence, has been given space at the Yale Law Review Journal to publish his citable article “Why Everyone’s Wrong About the Fourth Amendment.” Or, as Litt would like us to refer to it:

Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.

To be fair, Litt never says we’re all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional.

Technically, we’re not all wrong, but we may as well be, because no court has found the collection unconstitutional save Judge Leon’s and Litt doesn’t agree with it. Several paragraphs follow, but the crux of Litt’s argument is nothing new: it’s just 1979’s Smith v. Maryland decision all over again.

I do not think that Judge Leon’s efforts to distinguish Smith were successful. First, while Judge Leon is certainly right that metadata can be very revealing of personal activities, there is nothing new about that insight. Justice Stewart dissented from the decision in Smith itself in part because he recognized that metadata “easily could . . . reveal the most intimate details of a person’s life.” The point of Smith was not that metadata is innocuous, but that you have chosen to reveal it to a third party. To use an analogy, if you give a document to a third party, you have lost your expectation of privacy in that document, whether it is a laundry ticket or a confession of mortal sin. Moreover, the fact that cell phones today contain a lot of information beyond metadata does not seem relevant when the government did not actually search or collect any of that other information.

[…]

[I] find it hard to understand the alchemy by which information that you choose to disclose to a third party develops an expectation of privacy because you have chosen to disclose a lot of that information. That seems counter-intuitive to say the least. For all of these reasons, if you accept Smith’s holding that there was no expectation of privacy in the telephone metadata in that case because it had been voluntarily exposed to a third party, you can’t conclude there was an expectation of privacy in the metadata in this case.

The thing is that while people may voluntarily agree to hand over certain information to service providers (and it’s safe to say the “agreement” is anything but “voluntary”), they do not naturally assume the service provider will share this — no questions asked or warrants demanded — with anyone else who comes asking for it. That’s where the reliance on Smith v. Maryland fails. “Choose to disclose” is much different than “forced to disclose.” And it’s not as if it can truly be said phone users relinquish all ownership of that data. It’s specifically tied to them and they “share” it with service providers — which if that’s how Litt wants to interpret the interaction, he should at least be honest and give both parties some sort of ownership, along with the privacy expectations that go with it.

A lot of the rest of it is given over to Litt’s displeasure that courts have even granted plaintiffs standing in bulk metadata program lawsuits. Whatever the Third Party Doctrine doesn’t shut down, the plaintiffs’ inability to claim anything more than theoretical rights violations by programs the government refused to discuss publicly should have seen the cases tossed immediately. He agrees the framework is there for massive violations of privacy but these actually damaging acts simply never occurred. But abuses did occur and were covered up by the NSA, nearly resulting in the program being shut down back in 2008 by FISC Judge Reggie Walton.

This fact undercuts Litt’s assertions in defense of the now-curtailed program.

For several years, and with judicial authorization, the NSA collected metadata in bulk about U.S. phone calls from telephone companies for counterterrorism purposes. The metadata was kept in secure databases. It could only be accessed by a few specially trained NSA analysts, and then only to identify telephone numbers in contact with so-called “seed” numbers as to which there was a reasonable and articulable suspicion of an association with terrorism—such as, for example, a number used by a suspected terrorist.

First off, the program was accessed by more than just a “few” specially trained analysts. It was a free-for-all until the FISA Court shut that down. Second, the reasonable, articulable suspicion standard wasn’t always applied to searches of the database. For a period of time, NSA analysts ran searches against an “Alert List” of numbers the FISA Court had never approved for use — i.e., no RAS declaration was made by the NSA to support additions to the list used for searches of the bulk data. Some of these numbers were added simply because they were two or three hops away from an RAS-supported number, meaning there was nothing supporting the use of these “connected” numbers as new “seeds” for database searches and contact chaining.

What Litt does get right is that the NSA has done itself no favors with its decades of opacity.

Where we fell short was on the third leg of the stool, transparency. There would have been less damage to the Intelligence Community from the disclosures of the last couple of years had we been more forthcoming about our activities before those leaks. Obviously, intelligence activities have to be conducted with some degree of secrecy, and the same is true of some law enforcement activities. Specific methods and targets of surveillance have to be protected. But if we don’t discuss what we are doing and how we are regulating it even in general terms, we cede the field to those who are hostile to intelligence activities.

And, perhaps inadvertently, Litt lets us know President Obama is just as big a fan of the NSA as his predecessor was.

A decision by Congress to authorize certain activities under certain controls, made after discussion and debate, should be a strong factor in support of the reasonableness of those activities. Congress is going to have a number of opportunities to address these issues. For example, Section 702 expires at the end of 2017, and there are continued efforts to modernize the Stored Communications Act. It may be too much to hope that in the current political environment, Congress could have a dispassionate and comprehensive discussion about such weighty issues, but the Executive Branch would welcome such a discussion.

Given the selection of presidential frontrunners, I have no reason to believe Litt’s assessment of the situation will be any less accurate by the time the Section 702 expiration date rolls around.

Filed Under: 4th amendment, bulk surveillance, mass surveillance, nsa, odni, privacy, robert litt, surveillance, third party doctrine

Paper That Couldn't Be Bothered To Report On Local Police Misconduct Fires Off Editorial Insulting Writer Who Actually Did

from the unearned-superiority dept

As we recently covered here, a few Aiken, South Carolina, police officers engaged in a steady procession of Constitutional violations during a traffic stop predicated on nothing more than a (fully legal) temporary plate. Shirts were lifted and breasts exposed. At least one cop spent a considerable amount of time probing the passenger’s anus. For all intents and purposes, it was a roadside raping, performed under the color of law.

The horrific traffic stop is the focus of a federal lawsuit… and a whole lot of belated scrambling by law enforcement and city officials. Radley Balko of the Washington Post, who broke the story, found himself on the receiving end of a sneering, condescending editorial by the Aiken Standard — the local paper which had no interest in covering the lawsuit until after national internet hellfire began raining down on the town it serves.

The editorial is worth reading all the way through, if only to experience the surreality of being talked down to by an editor who wouldn’t know unbiased journalism if it showed up at his desk wearing a blue uniform and told him to kill an unflattering story.

First, the editorial — even as it throws shade at Balko for being a mere “blogger” — acknowledges that it didn’t even pick up on this story until after it had been covered at Balko’s Washington Post blog. From that point, it only gets worse. These three sentences are enough to give you some idea of how underqualified the Aiken Standard editorial staff is to be entering into a heated debate over journalistic priorities or law enforcement misconduct. (It also must be noted that the paper feels perfectly fine criticizing Balko’s blogging while not providing readers a link to his post so its readers can view the source material for themselves.)

We’re not criticizing the blog writer’s assertions since we are as ardent protectors of the First Amendment as is The Washington Post.

Our point is that The Washington Post blog was rooted in opinion, which is how the blog should be regarded. It’s not a news story conveying information from a neutral perspective. The incident also didn’t happen last week or even last month. It happened 17 months ago.

First off, the First Amendment not only protects criticism, it practically demands it. This editorial — as horrendous and misguided as it is — is the “more speech” the First Amendment encourages. If you don’t like something someone wrote, write something of your own rebutting it. There’s no need to pretend the First Amendment is there to saddle up your High Horse and act as your squire during your trip down the High Road. And, for that matter, the editorial does criticize Balko’s assertions, along with taking cheap shots at his lowly blogger status (for the Bezos-owned paper serving one of the nation’s largest subscriber bases).

As for the Aiken Standard being concerned about “neutral perspectives,” it would have been nice for it to have any perspective at all prior to a mere “blogger” making public news that it should not only already have known about, but should have addressed in print months ago.

Even stupider is the idea that horrific violations have some sort of expiration date. Lawsuits take time — generally being the tail end of a process in which other, less expensive options are exhausted first. Just because it didn’t happen within the last week doesn’t mean it’s not worthy of coverage. But that’s apparently the Aiken Standard’s standard.

Towards the end of its piece, it takes time to thank law enforcement for the hard work they do when not violating citizens’ rights.

Police officers face danger every day. They’re not perfect, but they lay their lives on the line every day so we can be safe.

For a paper making the claim that “opinions” from “bloggers” are worth less than its “neutral” reporting that allows “every stakeholder” to have their say, it sure sounds like the Aiken Standard is issuing absolution before all the facts are in.

Ken White at Popehat responded to the Aiken Standard’s blog-slamming editorial with an opinionated blog post of his own. Again, his is worth reading all the way through, but for much different reasons than the Aiken Standard’s. He calls the paper out for claiming to be the arbiter of neutrality and civility with two paragraphs that should serve as a stinging rebuke for every reporter granting law enforcement officials vast amounts of deference while still claiming to be a member of the Fourth Estate.

Civility is a good thing, even when discussing controversial subjects. It’s a goal I often fall short of, but a goal nonetheless. Civility even on heated subjects is a good thing because of humility: we may be wrong about the things we are angriest about. It’s a good thing because of proportionality: our sense of what is outrageous enough to provoke incivility may be idiosyncratic. It’s a good thing because of perspective: the world is full of people ready to be uncivil to us about things we have every damn right to do, and if we encourage incivility we’ll get what we ask for.

[…]

But civility can take pernicious forms. It’s pernicious if we shy from calling out outrageous and despicable conduct. It’s pernicious when we give armed government officials the benefit of the doubt because the culture tells us they’re brave and nice. It’s pernicious when we don’t demand public explanations for conduct because the conduct is horrifying and unseemly. Most of all, it’s pernicious when we decide that civility is substantive rather than procedural. Civility weighs against gratuitous shouting, insults, and threats. But civility does not require that we let the government beg the question. It does not require that we accept, as true, the premises about government power that have been served to us since birth.

Balko’s response to the Aiken Standard editorial is just as damning, but his closing paragraph really nails everything the Aiken Standard got wrong when it started believing subservience to law enforcement was the same thing as “neutral reporting.” If you want to sling arrows of journalistic superiority, you’d best have your shit nailed down tight.

The most important function of the press is to be a watchdog on power. I’d think that when made aware an incident such as this, caught on video, a good newspaper would start digging around to see if there had been similar incidents. (Here’s a tip for the paper’s assignment editors: If it’s happened once, it’s probably happened before.) Instead, the Aiken editorial board has chosen to praise police and local officials, and to reserve its skepticism for the publication that reported the incident. For all its derision toward me (the 665-word editorial uses the word “blog” 10 times), maybe the Aiken Standard could stand to take a lesson or two from opinion journalism. Do that, and perhaps the next time there’s national news in Aiken, the town’s newspaper will be the outlet that breaks it.

Since the point the Washington Post broke the story the Aiken Standard couldn’t be bothered to cover until it became unavoidable, there’s been all sorts of attentiveness from the local paper. Multiple stories have appeared covering the fallout of these officers’ actions — which includes everything from the hasty installation of a citizen complaint review board to the city asking the FBI to open its own investigation into the incident. But nowhere in this flurry of coverage will you find the Aiken Standard walking back its petty attack on Balko and his “blogging.” I suppose now that it’s finally performing acts of journalism, it feels it’s too far above the fray to offer an apology to Balko for its snide editorial, or to its readers for its journalistic failings.

Filed Under: 4th amendment, aiken, illegal search, police, radley balko, south carolina
Companies: aiken standard, washington post

House Votes Unanimously In Favor Of Requiring A Warrant To Search Emails

from the yay! dept

The push to reform ECPA — the Electronic Communications Privacy Act — have been going on basically as long as this site has been in existence (i.e. nearly 20 years). There are lots of problems with ECPA, but the big one that everyone points to is that it considers any communication that’s on a server more than 180 days to be “abandoned” and accessible without a warrant. That perhaps made some amount of sense back in 1986 when the law was written, because everything was client-server and you downloaded your email off the server. But in an age of cloud computing and webmail it makes no sense at all. Still, the IRS and the SEC really, really liked the ability to use ECPA to snoop on people’s emails.

In the past few years, Congress has kept supporting reform, but it always dies when some part of the administration complains and tries to block it. And yet, each time it enters Congress, it gets more and more sponsors. And, finally, the full House has voted to pass the Email Privacy Act. It was no surprise that it passed. The bill had an astounding 315 cosponsors. Seriously:

Still, it’s impressive that the bill ended up passing unanimously, 419 votes to 0 (and 14 missing votes). On an issue like this, that’s surprising. You figured there would be some Congressional rep from somewhere arguing that this would let terrorists and child predators off the hook or something.

The bill is certainly not perfect, and could be improved, but it’s nice to see the House get the basics right. Now, we wait and see what happens in the Senate… Will the Senate ignore a unanimous House and let this bill just die, or will it finally do the right thing and protect email privacy?

Filed Under: 4th amendment, congress, ecpa, ecpa reform, email, house, kevin yoder, privacy, warrant

Yet Another Court Says FBI's Hacking Tool In Child Porn Case Was An Illegal Search

from the the-4th-amendment-matters dept

Just last week, we wrote about another ruling in one of the many cases kicked off when the FBI took control over a Tor-based child porn site, called Playpen, and ran it for two weeks. While the courts have said that it was okay for the FBI to run a child porn service for two weeks as part of a sting operation, they’ve been having a lot more trouble with the fact that the FBI then used its control over the service to infect any visitor with malware in order to figure out who they were. In the ruling last week, in the case against Alex Levin, in the Massachusetts District Court, the court said that the malware/hacking tool represented an illegal search under the 4th Amendment and suppressed the evidence. The key issue was that the warrant was issued for searches in the Eastern District of Virginia, but Levin clearly was not there.

Now a court in the Northern District of Oklahoma, in a case against Scott Arterbury, has more or less reached the same conclusion. Specifically, Artebury’s lawyers pointed out that his computer was “seized” by the malware (called the Network Investigative Technique or NIT), and that was clearly in Oklahoma, beyond the bounds of the warrant. The government tried to play some games, arguing that it was the data that was seized in Virginia when it accessed the FBI-hosted site. The court doesn’t buy it. The NIT acted in Oklahoma, not Virginia:

The Court is not persuaded by this argument. The property seized in this instance was Arterbury?s computer, which at all relevant times remained in Oklahoma. The NIT warrant allowed the Government to send computer code or data extraction instructions to Arterbury?s computer, wherever it was located. The Government ?seized? that computer and directed it to send certain information to the Government ? all without Arterbury?s knowledge or permission. Arterbury?s computer was never in the Eastern District of Virginia and subsection (b)(2), therefore, does not apply. Furthermore, even if the property seized was electronic information, that property was not located in the Eastern District of Virginia at the time the warrant was signed. This information only appeared in Virginia after the Warrant was signed and executed and the Government seized control of Defendant?s computer in Oklahoma.

None of this, of course, is to absolve those who were actively engaged in activities around child pornography. But, as the judge notes, the FBI could have easily gotten an appropriate warrant:

Furthermore, the drafters of Rule 41 knew how to avoid the territorial limit on issuance of warrants when they wished to do so. Rule 41(b)((3) removes the territorial limitation in cases involving domestic or international terrorism. In such cases, a magistrate judge ?with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district.? Rule 41(b)(3). The drafters of Rule 41 could easily have included child pornography in Rule 41(b)(3) and, thereby, avoided the territorial limitation of Rule 41(b)(1) & (2). They did not do so. The Court can only conclude that they did not intend to remove the territorial limit in cases such as the one before the Court.

The court then delves a bit deeper to determine if it should order the evidence suppressed. Even in some of the other cases where the court found the NIT to be an illegal search, it still allowed the evidence to be used, often because of the “good faith exception.” But not here. After a long discussion about the good faith exception… the court explains it just doesn’t apply here, because this wasn’t just a technical error, but an error that destroys the entire warrant.

I conclude that where the Rule 41 violation goes directly to the magistrate judge?s fundamental authority to issue the warrant, as in the violation presented here, it is not a ?technical violation? of the Rule. The warrant is void ab initio, suppression is warranted and the good-faith exception is inapplicable.

Once again, it’s looking like the FBI and DOJ’s failure to respect the 4th Amendment means that evidence will be suppressed.

Filed Under: 4th amendment, alex levin, doj, fbi, illegal search, nit, playpen, scott arterbury

Court Tells Cops They Can't Open A Flip Phone Without A Warrant

from the RILEY-STRAIGHTEDGE dept

Lower courts appear to be taking the Supreme Court’s Riley decision seriously — give or take the occasional “there’s no Constitution at the border” decision. If the Supreme Court says there’s a warrant requirement for cell phone searches, there’s a warrant requirement for cell phone searches.

The Central District of Illinois has just handed down a decision that makes it clear, in no uncertain terms, that any examination of a cell phone’s contents, no matter how brief, is a search covered by Riley.

The Pekin Police Department participated in a couple of FBI-assisted controlled buys of weapons and drugs involving defendant Demontae Bell. Shortly thereafter, Bell was arrested.

Upon Bell’s arrest, a black mobile flip phone was located on his person. After Bell was arrested, he was transported to the Peoria Police Department and placed in an interview room. Shortly thereafter, Officer Sinks arrived at the police station (he was not the arresting officer). At the suppression hearing Sinks testified that before interviewing Bell with agent Nixon, he opened the door to the interview room, grabbed Bell’s cell phone from a bag or container outside the door, opened the phone (purportedly to turn it off) and showed the home screen depicting the rifle to Bell with an inquisitive look.

Officer Sinks then powered off the phone. He handed it over to FBI Special Agent Nixon and told him about the photo he had seen. Sinks then removed the phone’s battery and recorded the serial number. A little more than a week later, the FBI obtained a warrant to search the phone. Five months later, another search warrant was obtained specifically targeting date/time information related to the photo Officer Sinks saw on Bell’s phone.

Seems like a cursory examination of a flip phone would be covered, but Judge James Shadid points out the Supreme Court only allowed warrantless examination of cell phones if there were exigent circumstances or to ensure the phone did not pose a threat to officers (i.e., contain a concealed weapon). The government argued that opening a flip phone is not a “search” and that the photo of a gun the officer saw was in “plain view.” The court disagrees, pointing out that “plain view” means “plain view” without law enforcement interaction of any sort.

The government’s response to Bell’s Motion asserts that Officer Sinks’ opening of the flip phone did not constitute a search. While it is true that a “cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes,” Officer Sinks’ opening of Bell’s cell phone exceeded a “cursory inspection” because he exposed to view concealed portions of the object—i.e., the screen. See Arizona v. Hicks, 480 U.S. 321, 328-29 (1987). The Supreme Court specifically addressed this issue in Hicks, noting that the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches is much more than trivial for purposes of the Fourth Amendment.” Id. at 325. Officer Sinks’ opening of the flip phone, like the officer moving the stereo equipment in Hicks, “exposed to view concealed portions of the [object]” and thus “produced a new invasion of [defendant’s] privacy.”

Even though the court finds Bell to have a diminished expectation of privacy in the home screen of his phone (as opposed to its contents), that’s still not enough to ignore the stipulations of the Riley decision. Lock screens or homescreens may only show limited information in relation to the contents of a phone, but they can still display a wealth of information law enforcement can only obtain with a warrant.

The lens through which all information on a cell phone is observed is the screen. On both flip phones and more modern, advanced devices, “notifications” are regularly displayed on the home screen or lock screen indicating text messages, missed calls, and other alerts. The position that the government advances here—that officers can always open a phone and look at the screen to turn the phone off without conducting a “search” at all—is inconsistent with Riley’s requirement that “unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”

Just as Riley analyzed and rejected California’s attempt to create across the board exceptions, such as a rule allowing police to search call logs, without a warrant, the Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.

The government attempted to use two exceptions provided by the Riley decision: officer safety and threat of remote destruction of evidence. Both of these arguments are dismissed just as quickly and soundly as the government’s “plain view” argument. The court notes that Officer Sink’s actions gave no indication he was worried about a concealed weapon or data being wiped from the phone.

In any case, if remote wiping was a concern, officers could have removed the battery without opening the phone, as was clearly demonstrated by Officer Sinks himself.

Officer Feehan testified that the policy was put in place partly because snooping software could be used to listen in on conversations when the phone is turned off but still connected to the battery, and other methods could “compromise data” on the phone. While the procedure may be outdated as applied to modern cell phones that lack removable batteries, that problem was not present here, and the video later showed Officer Sinks removing the battery. Where officers have two equally effective options to turn off a phone, they should choose the less intrusive option. That was not done in this case, and as a result, incriminating evidence was found.

The result is suppression of the evidence specific to the Constitutional violation: the picture of an AK-47 Officer Sinks saw when he opened the phone. Because warrants were obtained for a more thorough search, supported by probable cause unrelated to the photo Sinks saw, the suppressed evidence is pretty much reinstated in whole as the incriminating photo was located on Bell’s phone. While it doesn’t do much for Bell, it does at least send a message to law enforcement that the Riley decision is to be respected and that cutting corners or skirting around the edges of the ruling won’t be tolerated.

Filed Under: 4th amendment, flip phones, privacy, riley, supreme court, warrants

Court: Border Search Warrant Exception Beats Riley In The 'Constitution-Free Zone'

from the protections-arbitrarily-applied-to-protect-inland-electronic-devices dept

The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already.

The area of the United States where the Constitution does not apply — while still being fully within the borders of the US — apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone.

The court notes the Riley decision says one thing but the “border exception” says another.

Heading in one direction is the Supreme Court’s bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty.

Balancing the two competing interests in this case, the court ultimately finds the government’s national security interest outweighs citizens’ privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by “cursory” searches of devices, it is only violated a little.

Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest. Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable.

The “border exception” the court carves out for a warrantless search of cellphones at the border somehow relies on exceptions carved out in the original Riley decision, despite saying Riley doesn’t control border searches.

The two cases can be reconciled. The most obvious path for reconciliation is to conclude that the border search exception is among the traditional exceptions to which Riley’s warrant requirement does not apply. This approach finds safe footing in the Supreme Court’s statement that “other” “exceptions” may continue to justify a warrantless search. Riley, 134 S. Ct. at 2494 (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”). It also is consistent with the observation from Montoya de Hernandez, (473 U.S. at 539), about when balancing individual privacy rights against rights of the sovereign, the balance “is qualitatively different . . . than in the interior” and the balance is “struck much more favorably to the Government.” This approach also avoids the spectacle of deeming that Riley undercut 200 years of border search doctrine without even a mention.

Not as much of a “spectacle” as the California court would think, considering the Riley decision set aside years and years of the government relying on dubious analogies like “containers” or “pair of pants” to justify the search and seizure of anything carried on or near a person (like in their vehicle) incident to arrest. It may not date back 200 years, but it does date back to the Fourth Amendment itself, which is a controlling authority with more than 200 years worth of history.

The case here deals with an actual border crossing (Calexico, California) but the government has basically declared any area within 100 miles of a border can be called “the border” for the sake of searches and detainments predicated on reasonable suspicion or, in many cases, law enforcement hunches.

As for this case, it’s hardly the ideal test for balancing Riley against the border search exception. For one, the defendant challenging the warrantless cellphone search was already neck-deep in reasonable suspicion, thanks to the discovery of drugs in his vehicle. Officers on scene had more than enough reason to detain him and likely had uncovered enough damning evidence to support a warrant affidavit. Of course, they did not seek one. Instead, they briefly browsed his phone until they found further suspicious content.

Some courts refuse to give officers a pass when they could have gotten a warrant but choose not to. Those courts are in the minority. This court is part of the majority.

Here, illicit narcotics had been discovered. Caballero had been arrested. Reasonable suspicion had jelled into probable cause. For the time being, he and his cell phone were safely in the hands of government agents. Other than the increased administrative work required, there is no apparent reason why Riley’s search warrant requirement could not be applied without undercutting the interests supporting the border search doctrine. One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made. Nevertheless, as long as this Court can apply circuit precedent without running afoul of intervening authority, it must do so.

Being within 100 miles of the border means never having to seek a warrant, even if the government has both the time and the probable cause to do so… at least until someone manages to push a challenge up to the appeals court level or beyond.

Filed Under: 4th amendment, border searches, constitution free zones, phone searches, privacy, riley, supreme court, warrant