Monday, February 28, 2011
Not all GPS/Location tracking is created equal. I have been arguing that there is a difference between discrete short-term tracking of an individual when a crime is suspected, and long-term surveillance of an individual. In the case of long-term tracking, the aggregation of tracking data can reveal medical, religious, and political information that otherwise would be considered private. You can read my views in an October 6, 2010 post and in an upcoming law review article. I also take on Yale on this issue here.
More support for this distinction is found in a recent opinion by a NY magistrate judge. Judge Orenstein has previously denied government requests for historical cell phone tracking information. But he granted a request a few days ago. He writes: “I conclude that the shorter time period of the surveillance at issue here distinguishes the instant application from the ones that I have denied on constitutional grounds.” He explains:
The government does not seek location tracking records for a single mobile phone over a continuous period of 21 days; instead, it seeks records for one telephone for a three-day period and a separate six-day period weeks later, and also the records of a different telephone (albeit one allegedly used by the same investigative subject) for a twelve-day period several months later. Even if it would be just as impractical for the government to conduct physical surveillance in lieu of electronic tracking for such shorter periods, I cannot assume that the information gleaned over such shorter periods, separated by breaks of weeks or months, would necessarily be as revealing as the sustained month-long monitoring at issue in [other cases].
A newspaper article describes how law enforcement is using utility records to attempt to identify homeowners who are running illegal marijuana growing operations in their basements and attics.
According to the Columbus Dispatch, utilities around Ohio receive approximately 60 subpoenas each month for customer billing information. The utilities claim to be sensitive to “customers' expectation of privacy,” yet provide the information because they believe that “There's not an option to say no."
From a Fourth Amendment standpoint, law enforcement almost assuredly does not need a warrant to simply review electricity use records maintained by the electric company. While people have a heightened expectation of privacy in their homes, activities, statements, or objects exposed to public view such as a list of telephone calls, garbage set out on the curb, or aerial photographs, are not protected. The use of technology to look inside a house has been found to be unconstitutional only when it could reveal details of intimate activities within a house. Meter readings does not fit this standard, as it only reveals how much power is used, not how the power is used.
My quick review of the cases on this topic suggest that that police would have a tough time obtaining a search warrant based solely on electrical use. Most reported cases begin with the police receiving some sort of tip, and then using the utility records to corroborate the tip. The article suggests what can happen if police rely solely on high energy uses – they found a business that used a large number of computers.
The article also suggests that police cannot survey large areas. I don’t think this is correct from a Fourth Amendment/constitutional standpoint. There would not seem to be any problem with police reviewing electrical records for high users, and then conducting other permitted activities to attempt to develop probable cause for a search warrant.
Thursday, February 17, 2011
What does Watson’s Jeopardy victory mean for the Fourth Amendment? Perhaps a lot.
Watson won because it was able to quickly and efficiently sort through information to find patterns and associations. The computer is apparently able to understand words and phrases in context. Here is the desription from a CNET contributor:
From a storage perspective, much is being made of the massively huge volumes of data Watson feeds on and his ability to calculate the probability of a "right" answer from a list of several potential winners in about three seconds or less. Watson's ability to parse big data combinations and permutations in real time leads to IBM's planned extension of Watson's underlying technology into big data analytics.
In the present and future, courts will be confronted not by discrete uses GPS tracking devices, or a simple search of the contents of a cell phone. Instead, courts will confront sustained and long-term surveillance efforts by the government of targeted individuals. This surveillance will be designed to detect patterns of behavior. And it will also allow police to determine the political views, medical problems, social history, and other intimate information about people just from looking at where they go and who they communicate with. A simple example: knowing that a person is on the same corner as a psychiatrist office on Tuesday at 3:00 is not significant; knowing that the person is there every Tuesday at 3:00 is significant.
My views on GPS tracking can be found elsewhere on this blog and in an upcoming article here. My views on cell phone searches can be found in an upcoming article here.
Watson-type technology will allow even greater government analysis of data the government believes it can legally obtain. The technology can be used to detect patterns in the travel of multiple individuals, or perhaps to infer political views from simply who is e-mails and texting who. That is not a reason for fear. Rather, the recognition of this fact simply must inform future court decisions about the scope of Fourth Amendment protections.
Another district court has held that police may use GPS tracking devices without a warrant. As noted on fourthamendment.com, a Western District of Michigan judge has declined to follow the DC Circuit’s opinion that police need a warrant to place a GPS tracking device on a vehicle. Perhaps the key sentence from the opinion is:
Here, the technology employed did not reveal information that could not otherwise have been obtained without physical intrusion into a constitutionally protected area - it revealed information (the location of a vehicle on public roads) that could have been readily obtained by visual surveillance of a public area.
A summary of my view on the issue, including a link to an upcoming law review article, can be found here.
My take remains that the court is incorrect – it is not physically possible for the police to obtain the same type of information through traditional surveillance as they can obtain through the use of GPS devices.
Tuesday, February 15, 2011
I just finished an interesting article by Professor Weaver in the Mississippi Law Journal. The title is The Fourth Amendment, Privacy and Advancing Technology.
I was particularly intrigued by the discussion of the implications of cloud computing:
In a modern society, many items of personal information are voluntarily conveyed to third parties. The advantage of cloud computing is that users are not tied to their computers (whether at business or at home), and therefore can access their data anywhere in the world. Most commentators would be inclined to think that there is a reasonable expectayion of privacy in e-mail stored on ISPs and data stored on clouds. The difficulty is that, since the information stored on the cloud is conveyed to a third party (the owner of the cloud) for storage, [the Supreme Court’s decisions] might suggest that the information is not protected against governmental prying. . . .
Is it possible that such actions (phone calls, e-mails and cloud computing) are not protected by a reasonable expectation of privacy? One would guess not. . . . Even if someone expects the phone company to maintain records of the phone numbers dialed by a customer, for long distance purposes or to prevent harassment, one ordinarily does not expect the phone company to monitor the contents of conversations. Like a letter that one sends through the mail, while it may be possible to determine to whom the letter was addressed, one would think that the contents of the letter are accompanied by an expectation of privacy. Similarly, when one sends e-mails through an ISP, or maintains data on a “cloud,” one does not expect the ISP or the company that maintains the cloud to monitor the content of the e-mails or the data stored on the cloud. After all, e-mails and clouds are protected by passwords and other security devices that allow only the customer to access the information and prevent the owner of the hardware from accessing it. As a result, one can argue that the content of the information has not been revealed to the third party.
Monday, February 14, 2011
An Ohio Court has upheld the search of a computer for evidence of a rape and child pornography. The case is State v. McCrory.
In this case, the police were contacted by a woman who claimed that she was the victim of a sexual assault. The victim stated that she had gone to the defendant’s residence “for a job interview in response to an advertisement that appellant posted on craigslist.org for a topless maid.” During the interview – surprise! – the defendant sexually assaulted her.
The police, after some additional investigation, obtained a search warrant for the defendant’s computers. During a forensic review of the machines, the police discovered child pornography. They then sought an additional warrant to conduct further electronic searches.
The court initially rejected a claim that the information from the victim was not sufficiently reliable to support a search warrant. The court said, “The complainant in this case was not a confidential government informant or anonymous tipster providing hearsay information to police, but a direct, victim-eyewitness reporting her personal, first-hand knowledge of an identified assailant's sexual assault committed face-to-face upon her person.”
An interesting computer related claim was also raised by the defendant. He argued, in part, that the warrant “impermissibly authorized the wholesale seizure and subsequent off-site search of all his electronic media.” In particular, the defendant appeared to argue that the warrant should have contained a limitation of the type of electronic data searched, both in terms of subject matter and time. The court found that the actions of the police in this case met the legal standard, mostly because when evidence beyond the original search for evidence of the sexual assault was discovered, they sought an additional warrant. Nonetheless, the defendant suggested that “a search protocol detailing how the files should be searched and irrelevant information segregated should have been used." However, a large number of cases suggest that this is not necessary because by providing a protocol, the government would provide defendants with the ability to easily conceal evidence by changing file names, etc . . . The court also held that once the police could legally access the computer, they were permitted to open any image files to be sure that images did not relate to his victim.
Fellows from the Information Society Project at Yale Law School have posted an interesting article on technology and privacy interests, with an emphasis on GPS tracking. The article can be found here. The key part of the abstract reads:
In this paper, we argue first, that where a technology enables invasion of interests at the heart of the Fourth Amendment’s concern -- protection of citizens from arbitrary government intrusions into their private lives -- the Court’s precedents require warrants to prevent abuse, and second, that the type and scope of information collected by prolonged automated GPS surveillance enables governments to monitor a person’s political associations, their medical conditions and their amorous interests, in a way that invades their privacy and chills expression of other fundamental rights.
In the article, the authors argue that court opinions permitting the warrantless use of GPS devices fail “to recognize the intrusiveness of prolonged surveillance by invisible, automated devices that continuously gather and analyze detailed information about a person’s movements for an unlimited period of time.”
Readers of this blog know that I have been making this same point for a few months now. On October 6, 2010 I wrote, “long-term surveillance of a targeted individual unrelated to any particular criminal action violates a reasonable expectation of privacy.” And in an upcoming law review article I write:
the use of GPS tracking devices for long-term surveillance is not merely an enhancement of the type of surveillance traditionally conducted by police, as no police agency could deploy the skill and resources to, undetected, record the type or amount of information provided by a GPS tracking device. And, . . . no reasonable person would expect to be the target of such a massive police surveillance operation. Accordingly, because the use of these devices infringes on a legitimate expectation of privacy, the use of these devices constitutes a search which, absent the present of another exception, requires a warrant.
Elsewhere, I have expressed the idea that technology permits an unwarranted intrusion into the personal lives of citizens – and that the aggregation of tracking data can reveal medical, religious, and political information that otherwise would be considered private. I am glad to see that the folks at Yale have picked up on my ideas.
Sunday, February 13, 2011
The renewal of the PATRIOT Act has brought some Fourth Amendment issues front and center.
Last week the House failed in a vote to renew the PATRIOT Act. This is the Act, passed in response to 9-11-2001 that provides the authority for court-approved roving wiretaps on multiple phones, the seizure of certain business records, and other and electronic monitoring.
The Fourth Amendment issues raised by the Bill are fairly complicated. But what is notable is that – perhaps unlike previously – the search and seizure issues are getting some attention. Some liberals in Congress who initially support the Act now are concerned about the Fourth Amendment implications. A Washington Times article describes the situation:
Reps. Charles B. Rangel of New York, Debbie Wasserman Schultz of Florida, and James E. Clyburn, the assistant minority leader from South Carolina, were among those to change their stance. All of them say they want a full review of the law, before it is renewed.
Rep. Sheila Jackson Lee, Texas Democrat, who also switched positions, aired a similar argument on the House floor Thursday, saying the “voice of the people should assure that the Fourth Amendment protections against unreasonable search and seizure has not been violated.”
But what is more interesting is that conservatives have also raised privacy concerns. For example, Senator Rand Paul (someone I probably rarely agree with) said, “These provisions up for renewal empower the federal government to violate the Fourth Amendment rights of our citizens.” A Boston Globe article describes the views of a new Republican Congressman:
Justin Amash of Michigan objected to renewing the provisions on grounds that they may conflict with the Fourth Amendment prohibition on unreasonable searches. “I cannot support them as currently written,’’ Amash said in a statement.
I will be watching to see if any real discussion of these issues emerges, or if the whole bill is renewed with little debate. I think the former will benefit the country.
Thursday, February 10, 2011
An Ohio court recently reviewed the search of a computer. The case is State v. Trotter.
In this case, the victim, a middle-school aged female, and some friends attended a party at the defendant’s home. While she was intoxicated, she was sexually assaulted by the defendant.
After the defendant was arrested, the police asked his wife her consent to take clothing from the home and to take photos. She consented. Later, she also consented to a complete search of the home. During this serach, the police seized a computer. The nmext day, the wife consented to a search of the computer's contents. This search revealed child pornography, and a warrant was later obtained for a more detailed forensic review of the computer.
The question before the court was whether the defendant’s wife had freely and voluntarily given consent for the serach of the computer. The court found that the wife “voluntarily and freely gave her consent to the police to search the home, to take the computer, and to search the computer's contents. [She] testified that no threats or promises were made to obtain each consent and that she was not under any type of duress when she gave each consent.”
A key to this decision may be that the defendant had made no effort to encrypt or otherwise limit access to the computer.
An Ohio Appeals Court recently upheld a decision that law enforcement officers violated the Fourth amendment rights of a defendant. The case is State v. Ruff
In this case, a Huron County Sheriff's Office Lieutenant was called to a residence for a reported burglary. She observed that the the home had been "ransacked" and television sets and weapons were stolen. The owner said that his ex-girlfriend had a key and that she was now dating the defendant. Around this time, the defendant had been stopped for driving without a license, and an ammunition box identified by the homeowner was found in his possession.
Later, after conducting some surveillance, a vhehile driven by the defendant;s friend was stopped. The defendant and incriminating evidence was found inside.
The court held that the lieutenant did not have reasonable suspicion of criminal activity to justify the stop. She “acknowledged that she did not know who was either driving or riding in the white pickup truck. The truck was not the vehicle at the earlier traffic stop. She stopped the truck based on the assumption that [the defendant] was inside.”
Monday, February 7, 2011
A new appeals court cases addresses what happens when the government violates the Electronic communications privacy act (ECPA). The answer is: nothing, at least in the criminal trial.
The case is U.S. v. Clenney from the Fourth Circuit.
In this case, the defendant was charged with possession of a firearm by a convicted felon. The police initially were investigating an attempted extortion matter. They obtained a warrant to search the defendant’s home and, there, observed “a Boost Mobile phone, which, according to the phone records, was the make of the phone belonging to the phone number from which the” allegedly illegal calls had originated. During the search, the officers also found a firearm.
One of the issues raised in the case is that the police violated the ECPA by obtaining the defendant’s cellular phone records during the investigation. Normally, the government must use a subpoena for basic information like call records and subscriber info, or must obtain a ocurt order or search warrant for more detailed information. The court held, however, that even if the statute had been violated, the evidence could still be used at trial:
The usual avenue for suppression — operation of the exclusionary rule occasioned by a Fourth Amendment violation —is not available to [the defendant. The police officer] did not violate the Fourth Amendment when he obtained the cellular phone records. Phone customers have no constitutionally cognizable privacy interests in basic subscriber information.
The reason is that the ECPA provides for civil remedies, but does not explicitly require the court to exclude the evidence.
Thursday, February 3, 2011
CNET reports that Oregon Senator Ron Wyden is sponsoring legislation to track cell phones without a warrant. An interview with the Senator is posted here.
I found the following to be the most interesting quote:
My sense is -- and we'll see as we get the bill introduced -- we'll see something of a division of opinion in terms of what we're proposing. I think there are some in the Justice Department and law enforcement and intelligence generally who think that this field really does need some clarity and there's a role for precisely what we're doing.
And then there are some who won't be in favor of legislation and will largely say, "look it's a dangerous time and we need to get our hands on all of this information." To that I say: that kind of attitude will not produce the kind of certainty and predictability that we need to address legitimate national security interests and a respect for people's privacy. This is more likely to cause confusion and frustration of interests in both areas.
It seems too early to comment on the bill – but I agree that clarity is needed in this issue. My own view, as I expressed elsewhere, is that I would like to see the bill acknowledge a difference between law enforcement efforts to use historical cell phone information to solve a past crime, and a more general monitoring of an individual over an extended period of time. The long-term monitoring raises additional privacy concerns. One possible approach – not requiring a warrant for a brief period of historical data, but requiring a warrant to data over a longer period of time or to permit real-time tracking – seems to strike a balance between the needs of law enforcement and privacy interests.
Tuesday, February 1, 2011
A Court of Appeals punted on the question of whether the police may search the contents of a cell phone when a person is arrested. The unpublished opinion is here.
The Eleventh Circuit was reviewing the conviction of a man for multiple drug charges. When he was arrested, the police search his cell phone and found the names of others in the drug conspiracy on his contacts list. However, the court held that even if the defendant’s constitutional rights were violated, the use of this information was “harmless error” because “there was overwhelming evidence of [the defendant’s] guilt.”
This is an important issue in the intersection of the Fourth Amendment and Technology. Some – not me – have even gone so far as to call this a “very cool” issue. I have been writing a lot on this issue, and you can find a law review article on the topic here. That is why I am disappointed the court said:
Whether the warrantless search of a cell phone incident to arrest violates a person's Fourth Amendment expectation of privacy is an unanswered question in this Circuit. It is a fairly difficult question, however, it is also a question that we need not answer today.
Before I had written that we had entered the Silly Season in lawsuits alleging that the TSA procedures violated Fourth Amendment rights.
Silly Season is over. The lawsuits have now moved into parody. I read the other day that Jesse Ventura (the former wrestler/former Minnesota governor), has filed his own lawsuit against the TSA.
I am not sure what I can add to the discussion? Most people behind these suits don't really understand the Fourth Amendment. And people are trying to take advantage of a media frenzy for self-promotion. Now, they seem to be making these points themselves better than I can.