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Fourth Amendment : Against The Wall with JJink

Couple Awarded $4M in Deputies’ Shooting

August 16, 2013 by  
Filed under General News



A Lancaster  couple was awarded more than $4 million by a  Los Angeles federal judge Tuesday for a raid by sheriff’s  deputies that caused a man to  have his leg amputated.

Angel Mendez and his wife accused the deputies – who did not have  a search warrant in their search for a wanted parolee – of  excessive force and federal civil rights violations in their  lawsuit filed against Los Angeles County.         The couple claims they were sound asleep around noon that day in  October 2010 when sheriff’s Deputies Christopher Conley and  Jennifer Pederson  busted into their wooden shack  unnannounced.

Mendez said the deputies shot their way through the front door  and into his bedroom.

“They just continued to fire,” Mendez said.

Fifteen rounds were fired. Mendez was struck 10 times and lost  his leg. His pregnant wife was hit once and feared she might lose  the baby.

U.S. District Judge Michael W. Fitzgerald handed down his ruling,  awarding $3.8 million to Mendez and $222,000 to his wife   for damages resulting from Fourth Amendment violations by the  deputies.

Los Angeles County Sheriff’s Department spokesman Steve Whitmore  said the Office of Independent Review  found the shooting  was justified and that deputies acted in self defense.

“The individual raised a weapon and pointed it at the deputies,”  Whitmore said. “They have to do what’s necessary and in this  case, they fired

read more:http://www.nbcnews.com/id/52769097

DOJ: We don’t need warrants for e-mail, Facebook chats

May 10, 2013 by  
Filed under General News


The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.

“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”

The Justice Department’s disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents “may subpoena” e-mail records from companies “without running afoul of” the Fourth Amendment.

The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:


In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.


Not all U.S. attorneys have attempted to obtain Americans’ stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys’ offices — including the northern California office that’s prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was “no.”

Still, the position taken by other officials — including the authors of the FBI’s official surveillance manual — puts the department at odds with a growing sentiment among legislators who insist that Americans’ private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone’s living room, or a physical letter stored in a filing cabinet, should apply.

In response to prodding from Sen. Ron Wyden (left), acting IRS commissioner Steven Miller said the agency would change its written policies.In response to prodding from Sen. Ron Wyden (left), acting IRS commissioner Steven Miller (right) said last month that the agency would change its written policies.

(Credit: U.S. Senate)

After the IRS’s warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: “We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”

Steven Miller, the IRS’ acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data — Google Drive and Dropbox files, private Facebook and Twitter messages, and so on — could be accessed without a warrant.

Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals’ 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.

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Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans’ e-mail messages that were more than 180 days old with an administrative subpoena or what’s known as a 2703(d) order, both of which lack a warrant’s probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.

The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: “Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away… By obtaining access to someone’s e-mail, government agents gain the ability to peer deeply into his activities.”

A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congress to update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices.

In November, a Senate panel approved the e-mail warrant requirement, and acted again last month. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, introduced similar legislation in the House of Representatives.

The political pressure, coupled with public petitions and increased adoption of cloud-based services, has had an effect. In 2011, James Baker, the associate deputy attorney general, warned that requiring search warrants to obtain stored e-mail could have an “adverse impact” on criminal investigations. By March 2013, however, Elana Tyrangiel, an acting assistant attorney general, indicated that the department would acquiesce on some privacy reforms.

“They dropped their opposition in Congress, but they’re going to try to wiggle out from under the Fourth Amendment whenever possible,” says the ACLU’s Wessler. “They probably realize that they couldn’t figure out a way to respond to hard questions from Congress anymore.”

Separately, the New York Times reported Tuesday evening that the Obama administration may embrace the FBI’s proposal for a federal law mandating that tech companies build in backdoors for surveillance. CNET reported last year that the FBI has asked the companies not to oppose such legislation, and that the FBI has been building a case for a new law by collecting examples of how communications companies have stymied government agencies.

Last week, FBI former counterterrorism agent Tim Clemente told CNN that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clemente added in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the National Security Agency — “there’s a way to look at digital communications in the past.”

FBI may be reading emails without a warrant

May 9, 2013 by  
Filed under General News

source:Suzanne ChoneyNBC News

The FBI and some U.S. Attorneys’ offices around the country may be reading emails without a warrant, according to documents obtained by the ACLU and made public Wednesday.

The documents “paint a troubling picture of the government’s email surveillance practices,” wrote Nathan Freed Wessler, attorney with the ACLU’s Speech, Privacy and Technology Project, in a blog posting.

“Not only does the FBI claim it can read emails and other electronic communications without a warrant — even after a federal appeals court ruled that doing so violates the Fourth Amendment — but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content,” he wrote.

The Fourth Amendment protects citizens against unreasonable searches and seizures.

“The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.”

The ACLU obtained documents from the FBI and U.S. Attorneys’ offices via federal Freedom of Information Act requests.

The FBI told NBC News, via an emailed statement, that in “all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines.”

The bureau’s field offices “work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.”
NBC News also contacted the Department of Justice for comment, and will update this post when we hear back.

Last month, the ACLU shared IRS Criminal Tax Division memos and manuals which indicated the agency is not always following a 2010 appellate court ruling that the government must obtain a warrant before ordering email providers to turn over messages. That information also was obtained through a FOIA request.

In a statement to NBC News then, the IRS did not directly address the ACLU’s concerns, but did say  “Respecting taxpayer rights and taxpayer privacy are cornerstone principles for the IRS. Our job is to administer the nation’s tax laws, and we do so in a way that follows the law and treats taxpayers with respect.”

The ACLU said the FBI and U.S. Attorneys’ Office documents show “if nothing else” that “federal policy around access  to the contents of our electronic communications is in a state of  chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ  Criminal Division should clarify whether they believe warrants are  required across the board when accessing people’s email.”

The civil liberties organization is also pushing for passage of amendments to the federal Electronics Communication Privacy Act. The act was passed in 1986, before email and the Internet became part of everyday life.

The law, as now written, does not require the government to have a search warrant when requesting access to emails and messages more than 180 days old that are stored online. Such information can be gathered by obtaining a subpoena, which is easier to get than a warrant.

A bill by Sen. Patrick Leahy, D-Vermont — who authored the original ECPA bill 27 years ago — would update the law by requiring a search warrant if the government wants to read emails stored with third-party providers, such as Google or Yahoo.

It would also eliminate the 180-day rule and require the government to notify a person whose emails or other electronic communications have been disclosed, within 10 days of obtaining a search warrant. The bill is making its way through the Senate.

“When ECPA was enacted, email was primarily a means of communicating  information, not storing it,” Leahy said in a statement. “Today, we use our email  accounts as digital filing cabinets, where we store many of the  personal documents and sensitive information that the Fourth Amendment  was meant to protect. This bill takes an essential step toward ensuring  that the private life of Americans remains private

2 out of every 3 Americans lost Fourth Amendment protections to DHS

February 20, 2013 by  
Filed under General News

Two out of every three people reading this could have your electronic devices searched, without there being any reasonable suspicion, because the Department of Homeland Security has decided that such search and seizures do not violate your Fourth Amendment protection against unreasonable search and seizure. Border agents don’t need probable cause and they don’t need a stinking warrant since they don’t need to prove any reasonable suspicion first. Nor, sadly, do two out of three people have First Amendment protection; it is as if DHS has voided those Constitutional amendments and protections they provide to nearly 200 million Americans.

United States Constitution Free Zone Map shows 2 out of every 3 Americans lost Fourth Amendment protections to DHS

Those numbers come from the ACLU’s estimates of how many people live within 100 miles of the United States border, since Homeland Security’s Office for Civil Rights and Civil Liberties (CLCR) concluded that border searches of electronic devices do not violate the Fourth Amendment. Previously, the ACLU called this area the Constitution-Free Zone and provided a map showing how many people within states along the all our borders are affected without constitutional rights. The estimate is that nearly two out of three Americans live in the Constitution-Free Zone.

Full Article

Bill would clip wings of private drone use

July 23, 2012 by  
Filed under General News

the washington times:

This week, Rep. Ted Poe, a Texas Republican and former judge, will  introduce the Preserving American Privacy Act, which sets strict limits  on when, and for what purpose, law enforcement agencies and other  entities can use unmanned aerial vehicles, or UAVs.

Drones are being used on a limited basis by some police and federal  departments, but they will be available for commercial and private use  in 2015.

This concerns lawmakers and Fourth Amendment advocates who fear that  drone use will be abused and that Americans’ privacy rights will be  eroded.

full story:http://www.washingtontimes.com/news/2012/jul/20/congress-steps-efforts-regulate-drones/

Supreme Court Deals Blow To Government Surveillance, Saying Warrant Needed For GPS Tracking

January 23, 2012 by  
Filed under General News


We finally have a victor in one of the most talked-about court cases of 2011. The Supreme Court issued its opinion [PDF] Monday in U.S. v. Jones, a case that asked whether the government needs a warrant to slap a GPS tracker on a suspect’s car. The Supreme Court was unanimous in its decision: The government lost. Privacy won.

D.C. police had suspected nightclub owner Antoine Jones of running a cocaine ring; they got a warrant to put a tracker on his car, but it expired before they placed it there. The government argued that our movements on public streets are public, and not entitled to privacy protections, and thus that it didn’t need a warrant to track those public movements. The Supreme Court’s opinion, authored by Justice Antonin Scalia, focused on Antoine Jones’s property rights — that it was unreasonable for the police to ‘trespass’ and place a tracker on his property (in this case, his wife’s Jeep Cherokee) without a warrant.

“The Government physically occupied private property for the purpose of obtaining information,” writes Scalia. His focus on property rights is not surprising, as Scalia, an originalist, has previously expressed skepticism about a “right to privacy” as it’s not specifically described in the Constitution.

His opinion and concurring opinions from Justices Sonia Sotomayor and Samuel Alito, though, leave the door open for a more generous interpretation of citizens’ rights to be protected from government surveillance — saying the Fourth Amendment is meant to protect people, not places, from ‘unreasonable searches and seizures’ — so that even if you’re in a public place, you are still entitled to some privacy.

In a way, the Jones case is already a dated one. Who needs to put a GPS tracker on someone’s car when we already all carry GPS trackers in our pockets in the form of cellphones and smartphones? Many of the Justices brought this up during oral arguments, and it surfaced again in their opinions.


English: United States Supreme Court building ...The Supreme Court is as vexed by privacy questions as everyone else

“[P]hysical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones,” writes Sotomayor in her concurring opinion. During oral arguments, she raised the idea of government tracking people using satellites from space with cameras that could hypothetically follow a person from place to place — not requiring placing a tracker on them, or even intercepting location information from a device they carry. “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.”

Justice Alito goes further, calling it “ironic” that the Court bases its decision about a radical new technology — GPS tracking — on “18th-century tort law.” He says it’s old-fashioned to limit the concept of invasion of privacy to a physical intrusion, suggesting that the Court instead decide whether long-term monitoring of someone’s location is a violation of privacy — no matter the means used. He suggests that “short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable,” but that long-term monitoring — four weeks in Jones’s case — constitutes actual “searches” and should require a warrant.

Scalia scoffs a bit at Alito’s imprecision in defining “short term” vs “long term.” He does express some agreement with Sotomayor though, regarding tracking using a phone or a device installed by a car’s manufacturer. In the court’s opinion, Scalia wrote that “situations involving merely the transmission of electronic signals without trespass would remain subject” to scrutiny from the Supreme Court. “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question