A Senate committee today backed sweeping privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.
The Senate Judiciary Committee approved the package on a voice vote after about 30 minutes of debate, and sent the measure to the Senate floor, where it faces an uncertain future.
The legislation, (.pdf) sponsored by Sen. Patrick Leahy (D-Vermont), the committee’s chair, and Michael S. Lee (R-Utah) nullifies a provision of federal law allowing the authorities to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed if the content is 180 days or older.
Under the current law, the 1986 Electronic Communications Privacy Act, the government can obtain e-mail without a warrant as long as the data has been stored on a third-party server — the cloud — for 180 days or more. The government only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful to an investigation.
I haven’t passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” it states in plain English, “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.”
That’s all of it.
The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read ‘em. It’s like the Framers said: probable cause is required.
Yet a text or an email, even one sent from your bed, is treated differently — it’s afforded much less protection from government snoops, even though we’re increasingly going all digital in our communication.
Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations, according to documents obtained by a news outlet.
The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases, according to the Daily, which obtained copies of contracts, procurement requests, specs and other documents.
The use of the equipment raises serious questions about eavesdropping without a warrant, particularly since recordings of passengers could be obtained and used by law enforcement agencies.
It also raises questions about security, since the IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city.
George Zimmerman Jose Baez Serino - OrlandoSentinel.com
Lead Sanford investigator Chris Serino hires famed Casey Anthony attorney Jose Baez to represent him in prosecution of Trayvon Martin shooter.
It was a strange development in a case that has seen more than its share: Chris Serino, the lead Sanford police investigator in the Trayvon Martin shooting, hired famed Casey Anthony defense attorney Jose Baez to represent him at his upcoming deposition in the case.
It’s unclear what prompted Serino to hire a private attorney — eschewing available representation by the city of Sanford, his employer. But one issue likely to come up is his double-talk on whether there was enough evidence to support George Zimmerman’s arrest as controversy surrounding the case spiraled out of control last spring.
Serino wrote in a sworn affidavit that there was probable cause to arrest Zimmerman. But he later told the Federal Bureau of Investigation he was pressured to author that document and didn’t believe the evidence was sufficient for the manslaughter charge he recommended.
“Nobody put a gun to his head,” says Michael Grieco, a Miami defense lawyer and former prosecutor. “When you sign an affidavit, you swear under oath.”
And Serino isn’t the only Sanford officer whose testimony could prove troublesome for prosecutors in the second-degree murder case against Zimmerman: High-ranking fellow officers largely agreed in March that there was not sufficient evidence to arrest Zimmerman.
I applaud the effort to require warrants to search email. Even if it’s old email. Kudos to Sen. Pat Leahy. If I had my way significant parts of the Patriot act would have had their sunset and began the trip into history along with Osama Bin Laden. It’s a rare thing for liberties or civil rights to be restored without far more drama than like a bill going through due process. Please contact your representatives and encourage this requirement.
A Senate committee on Thursday unanimously backed sweeping digital privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.
The measure, sponsored by Sen. Patrick Leahy (D-Vermont), the head of the Senate Judiciary Committee, amends the 1986 Electronic Communications Privacy Act. The amendment would nullify a provision that allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed.
The development comes as e-mail privacy is again in the spotlight after FBI investigators uncovered an affair between then-CIA chief David Petraeus and his biographer Paula Broadwell after gaining access to e-mail accounts used by Broadwell.
Currently, the government can obtain e-mail without a warrant as long as the content has been stored on a third-party server for 180 days or more, and only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful in an investigation.
I AM THE COPS. I pull you over on the road at night. You didn’t signal when changing lanes, I say. What I’m thinking is: you’re black. During the stop I shine a light into the car and spot some dope. I arrest you. Legal?
Legal. In Whren v. United States (1996), plainclothes narcotics officers in an unmarked car—not the types who spend their time enforcing stop signs and speed limits—pulled over a young black driver for making a turn without signaling. They found cocaine in the passenger’s seat. The Supreme Court held the stop to be perfectly legitimate, rejecting the defendant’s argument that the elaborate traffic code allows police to target almost any driver. The Court’s Fourth Amendment precedents, Justice Scalia wrote for the unanimous Court, “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” This formalistic reasoning essentially dismissed the serious social issue of racial profiling. Driving while black, Scalia seemed to say, is not our problem.
Stephen Schulhofer, an eminent Fifth Amendment scholar at NYU Law School, deplores the Whren decision. He writes in his book that Whren removed most limits on police officers’ discretion on streets and highways. “For every instance involving a drug courier,” Schulhofer writes, “there are countless police actions that never make the newspapers or the criminal court docket—instances in which law-abiding citizens guilty of nothing more than a traffic infraction are subjected to an intrusive but ultimately fruitless roadside search.” More Essential Than Ever is a concise and engaging survey of Fourth Amendment law, although its warnings about the Amendment’s demise are hotter than they need to be.
With its prohibition of “unreasonable searches and seizures,” and its requirement that judges issue warrants only “upon probable cause,” the Fourth Amendment restrains police activity with judicial oversight: if probable cause exists, the police must apply to a judge or magistrate for a search or arrest warrant in most circumstances. Schulhofer returns to this framework again and again in his book. A liberal, Schulhofer disdains wooden originalism but is a strong believer in first principles: warrants and probable cause are written directly into the Fourth Amendment, and they matter. Instead of interpreting the Constitution based on what the founders supposedly intended at the time—the dubious and results-driven method favored by some conservatives—Schulhofer interprets it based on the touchstones written into the document itself. If a judge is not overseeing a police officer, he wants to know why. Call it big-picture originalism.
The 9th Circuit agreed Thursday to grant an en banc rehearing over a California law that lets police collect DNA from any adult who is arrested for a felony.
In February, a divided three-judge panel found no constitutional problem with the law.
“We agree that the California DNA Act would be unconstitutional if it allowed police officers to collect DNA samples from random citizens on the street without any probable cause to believe that they committed a crime,” Judge Milan Smith Jr. wrote for the majority. “In reality, however, the police cannot collect DNA without first determining that there is probable cause that the individual committed a felony.”
That decision can no longer be cited as precedent now that the court has granted rehearing.
The latest two-page order notes that Judges Jacqueline Hong-Ngoc Nguyen, Paul Watford and Andrew Hurwitz did not participate in the deliberations or vote as to the rehearing.
A class of sampling subjects sued the state in 2009, claiming the collection of DNA samples constituted an illegal seizure of their genetic information and violated their due process rights. Lead plaintiff Elizabeth Haskell was arrested in March 2009 at a peace rally. She claims police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek, the typical method officers use to collect DNA.
Representing Haskell, the American Civil Liberties Union claimed the swab method constituted an unconstitutional search.
As she did, Rodda says, Lopez demanded that she stop. She did, she says, and Lopez “frisked and searched plaintiff’s purse without her consent and without probable cause to do so.”
Rodda says she did not show any signs of aggression toward Lopez, and complied with all her commands.
The complaint continues: “Officer Lopez admitted that plaintiff was compliant with her demands at all times.
“Officer Lopez then demanded to plaintiff that she was taking the video camera for ‘evidence.’
“Officer Lopez then confiscated the video camera.
“Officer Lopez took the video camera home instead of tagging it into evidence.
“Officer Lopez admitted she viewed the video in her home.
“Officer Lopez admitted she never tagged the ‘evidence’ into evidence at APD.
“Three days later, the video was returned to KOB.
“However, the video clip with the kid being thrown down in police brutality was deleted.
“An independent expert reviewed the video camera and was able to recover the deleted clip of the kid being thrown down.
“The expert determined that the clip was deleted while the camera was in Officer Lopez’s possession.
“Thus, Officer Lopez tampered with evidence.
“Officer Lopez then issued a criminal summons charging plaintiff with criminal trespass.”
Police in Delaware may soon be unable to use global positioning systems (GPS) to keep tabs on a suspect unless they have a court-signed warrant, thanks to a recent ruling by a superior court judge who cited famed author George Orwell in her decision.
In striking down evidence obtained through warrantless GPS tracking, Delaware Judge Jan R. Jurden wrote that “an Orwellian state is now technologically feasible,” adding that “without adequate judicial preservation of privacy, there is nothing to protect our citizens from being tracked 24/7.”
The ruling goes against a federal appeals court’s decision last summer that allowed warrantless tracking by GPS.
Unless there are special circumstances, “the warrantless placement of a GPS device to track a suspect 24 hours a day constitutes an unlawful search,” Judge Jurden wrote in her ruling (PDF). “In this case, there was insufficient probable cause independent of the GPS tracking to stop Holden’s vehicle where and when it was stopped, and therefore, the evidence seized from Holden’s vehicle must be suppressed.”
Jurden argued that the same legal principle that allows officers to tail a suspect in traffic, without a warrant, doesn’t apply to GPS because the devices reveal far more about a person under surveillance than physical surveillance could — and more than police need.
“Prolonged GPS surveillance provides more information than one reasonably expects to ‘expose to the public,’” she wrote. “The whole of one’s movement over a prolonged period of time tells a vastly different story than movement over a day as may be completed by manned surveillance.”
She added, “It takes little to imagine what constant and prolonged surveillance could expose about someone’s life even if they are not participating in any criminal activity.”