The Foreign Intelligence Surveillance Court

By: Timothy P. Flynn

A secret court; something very offensive to our Democracy.  Even as lawyers, we here at the Law Blogger had never heard of such a stealth tribunal until Edward Snowden blew the whistle on one of its rulings [i.e. the FISA Court's "classified" order to turn over all of Verizon's phone tracing data to the NSA].

Actually, the FISA Court has been around since the 1978 passage of the Foreign Intelligence Surveillance Act.  Following the September 11th terrorist attacks on our country back in 2001, FISA has been repeatedly amended, primarily through the Patriot Act.

Not surprisingly, since 9/11, FISA has expanded steadily along with the powers of the FISA Court.  The Bush Administration based its warrantless wiretapping practice on FISA; the Obama Administration, to the surprise of many of its supporters, has not only continued the program, but expanded the scope of electronic surveillance to apparently everyone in America.

The Edward Snowden case has shined a light on the 11-member FISA Court.  What that light has shown is that the secret court has evolved from providing quick case-by-case rulings on electronic surveillance scenarios, to building a body of "classified" constitutional decisions that are now hefting the weight of judicial precedent; all without a scintilla of public scrutiny.

We here at the Law Blogger would like to know:  who is on this secret court?  What decisions are they making that may affect our right to privacy?  And do we even still have a right to privacy while connected to the internet or connected to a cell phone?

The FISA Court's recent classified decisions have become so constitutionally significant that a recent NYT article compares the secret court to a "parallel Supreme Court".

One example of the shrouded jurisprudence emanating from the FISA Court is the application of the "special needs" exception to the warrant requirement of the 4th Amendment in terrorism cases.  Normally, law enforcement cannot conduct a search or seizure of a person without a warrant based on probable cause.

In 1989, SCOTUS created the "special needs" exception to the 4th Amendment's warrant requirement in the context of public transportation.  SCOTUS ruled that public railway workers could be drug-tested by the government without a warrant on the basis that the minimal privacy intrusion of the worker was superseded by the need for public transportation safety.

Apply this logic to the modern terrorism cases, and any matter that evokes our "national security" opens the door for the FISA Court to invoke the "special needs" exception.  This fast-expanding exception is now poised to swallow the 4th Amendment's warrant requirement whole.

Although we do not get to read the secret court's decisions, from which there is a very limited and rarely used appeal process, we are told -via the NYT- that a sturdy pillar of jurisprudence and precedent has arisen from the FISA Court: the collection of Metadata does not offend the 4th Amendment.

Well, ok, if the Star Chamber says so.  But we here at the Law Blogger thought that ours was an adversarial justice system characterized by thesis, antithesis, and synthesis.

Post Script: October 15, 2013 - The FISA has given the green light in several of its recent cases for the NSA to continue to collect cell phone use data on U.S. Citizens.  We wonder if our emails are also subject to NSA scrutiny...

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Posted in: 4th Amendment,Edward Snowden,FISA Court,Foreign Intelligence Surveillance Court,metadata,Patriot Act,privacy,SCOTUS,search and seizure

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 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

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