National Security vs Individual Privacy in the Big Data Era

By:  Timothy P. Flynn

This post is about the rights of a now famous arrest warrant fugitive, and about each of our rights to maintain private electronic data.

The Fourth Amendment to the United States Constitution guarantees rights to all private citizens:

...to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This important amendment arose, in part, as a response to abuses of power during the American Revolution associated with the reviled "writ of assistance"; a general search warrant that allowed the King's soldiers to toss your home with or without reason.

Fast forward to the 21st Century, which opened with unprecedented foreign terrorist attacks on our soil, and we see that our "papers and effects" have been digitized.  Most of us now have fairly robust electronic profiles as opposed to actual "papers and effects".

Now, 13-years into the e-Century, and a dozen years after the fateful 9/11 attacks on New York and Washington, the federal government wants, and apparently gets, direct access to the Big Data of our private lives.  This access has been granted in the name of national security and is backed by the Patriot Act, and other powerful national security-based federal laws.

The extradition and federal prosecution of  Edward Snowden will test these opposing concepts of liberty and national security in the digital age.  Like the cases of Julian Assange and Aaron Swartz, Snowden's revelations about the federal government's snooping is becoming a digital clarion call.

Snowden, a former NSA contractor, made some significant disclosures about what the NSA has been doing, to the Guardian newspaper in London earlier in the month.  The feds have been hunting him with an international arrest warrant ever since for violations of the Espionage Act.

Apparently, Mr. Snowden is now on the move, internationally, as in Jason Bourne style.  Only this is real, not fiction.  Once the United States has Mr. Snowden either extradited or rendered back to the US, he will face criminal charges in federal court in Virginia for leaking the NSA's digital secrets to the media.

Since its inception in 1917 up to the current administration, Presidents have only charged 3 individuals with violating the Espionage Act.  President Obama has prosecuted 6 individuals under the Act.

What does this tell us about the balance between our rights to have our data secure from the prying eyes of the government, and the governments duty to protect our shores from invasion?  Can both interests be served simultaneously?

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Posted in: Aaron Swartz,Big Data,Edward Snowden,Espionage Act of 1917,Fourth Amendment,Juian Assange,NSA,privacy rights

Appeals Court Creates New Crime to Affirm Conviction

This case, State v Helen, arose out of North Carolina.  The facts, on the surface, were about as favorable as it gets for the prosecutor.

The accused had a tail light out.  [If I had a dime for every defendant I represented who was pulled over for a tail light...]  The officer stopped the motorist; the stop led to a search of his vehicle and, eventually, a drug conviction.

Here is the problem that arose on appeal: in North Carolina, there is a little known wrinkle in their motor vehicle code which provides that, so long as a motorist's other tail light is functioning, having one light out is not a violation.

This case went all the way to the North Carolina Supreme Court.  Now, if I was sitting on that High Court, my vote would be to reverse the conviction.  If the officer lacked probable cause to conduct a traffic stop, then basic Fourth Amendment constitutional law provides that the evidence seized in an illegal stop and search is excluded as the proverbial "fruit of the poisonous tree".

A constitutional "no-brainer", right?  Guess again.  The divided High Court essentially created a new traffic law by holding that, so long as the officer held a reasonable belief that a law had been broken, the search was legal.

But citizens, take note that this "reasonably-held-belief" standard does not work both ways.  If you, the motorist, reasonably believe that you are obeying the traffic laws, [say you are texting in a municipality where you believe no distraction ordinance has been adopted], but in fact, you are violating a provision of the traffic code, then your ignorance of this law is no defense and you can get a ticket.

The "take away" from this case from North Carolina is that ignorance of the law is ok if you are a peace officer, but not if you are an ordinary citizen.

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Posted in: criminal defense lawyer,Fourth Amendment,law enforcement,police,pretext search,search and seizure

SCOTUS Ends Term With Historic Decisions

Chief Justice John Roberts

On the penultimate business day in June, the United States Supreme Court concluded its term with the announcement of its historic decision in National Federation of Independent Business v Sebelius; the Obamacare case that tested the constitutionality of the Affordable Care Act.  As unlikely a jurist as could be found, a visibly uncomfortable Chief Justice John Roberts, announced that Obamacare was upheld in a 5-4 opinion that he authored.

The ACA was upheld on the somewhat questionable grounds of Congress' power to levy a tax.  More than a few legal scholars characterize the so-called "individual mandate" requiring individuals to secure health insurance or pay a penalty, as Congress levying a punishment, not a tax.  The consensus among these same scholars, however, is that challenging the constitutionality of the ACA was a colossal waste of time; legislation of this nature has routinely passed constitutional muster dating back to the social programs of the 1930s.

We here at the Law Blogger cannot wait for the contribution from our guest blogger, Professor Robert Sedler, to weigh in on this decision.  Stay tuned for that.

Here is a summary of some of the more significant decisions issued by SCOTUS this term:

• Churches are entitled to a "ministerial exception" to their adherence to state and federal employment laws, enabling them to hire whomever they want to stand at the pulpit; the remaining question in this case is how deep into the employee roster this ministerial exception goes.

• Police must secure a warrant, as required under the 4th Amendment's "search and seizure" clause, prior to attaching a GPS tracking device on a vehicle.

• Corporations and unions can spend unlimited amounts of money on political campaigns as the Court upheld it's game-changing Citizens United decision and applied it to a Montana law.

• An accused has a right to the effective assistance of legal counsel under the Sixth Amendment during the criminal plea-bargaining process.

• The prosecutor's expert witness may discuss laboratory test results [usually involving blood samples and DNA] without the live testimony of lab analysis that assisted in processing the sample, and this does not violate the "confrontation clause" of the Fifth Amendment.

• State criminal laws that require that a juvenile convicted of murder be sentenced to life in prison without the possibility of parole are unconstitutional.

The justices will reconvene for the 2012-2013 term in October.  Must be nice to be one of nine justices on the High Court.  After deciding such weighty decisions that affect our lives, you really get to enjoy your summer!

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Posted in: Chief Justice John Roberts,Fifth Amendment.,Fourth Amendment,Law Professor Robert Sedler,SCOTUS,Sixth Amendment

SCOTUS Imposes Warrant Requirement for GPS Vehicle Tracking

Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

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Posted in: Chief Justice John Roberts,Fourth Amendment,Justice Sonia Sotomayor,SCOTUS,search and seizure,United States v Jones

Michigan State Police Extracting Cellphone Data During Traffic Stops

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Posted in: ACLU,American Civil Liberties Union,Cellbrite UFED,FOIA,Fourth Amendment,freedom of information act,Michigan State Police,MSP,search and seizure

Are Digital Inspections Constitutional?

Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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Posted in: articulable suspicion,constitutional law,criminal law,digital inspection,Fourth Amendment,Judge Bernard Friedman,law enforcement,probable cause

Satelite Tracking Devices May Constitute a Fourth Amendment "Search"

At the Law Blogger, we often see the use of GPS tracking devices in the divorce context.  What happens when the police use such devices to gather evidence of crime?  Are your movements constitutionally protected?

Two cases percolating their way to the SCOTUS (a petition for certiorari already filed in one) involve police use of high-technology tracking devices.  The High Court will be asked to decide: a) whether the prolonged monitoring of a suspect via GPS technology is a "search" under the meaning of the Fourth Amendment; and b) whether police entry onto private property to plant the device invalidates such a search.

If the petitions are granted, these questions could be briefed, argued and decided in the 2011 term of the Court; the "day-after-tomorrow" on our common law clock.

Brief legal background:  More than 25-years ago, SCOTUS ruled in U.S. vs Knotts that the police could use an electronic "beeper" to track a suspect's movements to and within a drug lab without triggering the warrant requirement of the Fourth Amendment.  Federal courts throughout the various circuits across the country, and the patchwork of state courts, have developed a wide array of conflicting laws governing the extent and duration such monitoring can take before the surveillance becomes a search requiring a warrant based on probable cause.

Now its time for the SCOTUS to clarify things.

In Pineda-Moreno vs United States, petitioner, an Oregonian, maintained a huge pot farm hidden deep within the forests of Southern Oregon and Northern California.  Using a variety of high-tech GPS devices, some as small as a stick of gum, federal agents were able to build a manufacture/distribution case against Juan Pineda-Moreno.

The federal agents came onto the curtailage (privately-owned surrounding area) of Mr. Pineda-Moreno's manufactured home to place a variety of devices onto his Jeep from June through September back in 2007.  They were even able to replace the batteries on some of the tracking devices.  Juan was oblivious to their efforts.

In his guilty plea (he is currently finishing up a 4-year prison sentence), Pineda-Moreno preserved his right to challenge the fed's "search" of his person; his movements.  The Ninth Circuit Court of Appeals ruled the agents' tracking was not a "search" within the meaning of the Fourth Amendment.

The other case is coming to SCOTUS via a likely government petition for cert in Maynard vs U.S. where the D.C. Circuit has ruled far differently than the Ninth Circuit on a variety of related issues.

SCOTUS has long held that police may closely scrutinize a vehicle; particularly a moving vehicle.  What this technology, and now, these cases, focus the Court on is whether extensive tracking transforms our vehicles from objects of public viewing (without any reasonable expectation of privacy) into purveyors of private information which can only be tapped via a probable cause warrant.

Stay tuned as SCOTUS catches up to, and rules on, the latest law enforcement surveillance techniques.

Sidebar Note to all you certified marijuana users out there, palliative or recreational; federal charges are a real risk, with harsher sentencing consequences.

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Posted in: attorney,Fourth Amendment,GPS,medical marijuana,SCOTUS,search and seizure,surveillance