Archive for November, 2012

Senate bill rewrite lets feds and local law enforcement read your e-mail without warrants: Anyone need an ACLU application form?

 

Senate bill rewrite lets feds read your e-mail without warrants

Proposed law scheduled for a vote next week originally increased Americans’ e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

 

Sen. Patrick Leahy previously said his bill boosts Americans' e-mail privacy protections by "requiring that the government obtain a search warrant." That's no longer the case. Sen. Patrick Leahy previously said his bill boosts Americans’ e-mail privacy protections by “requiring that the government obtain a search warrant.” That’s no longer the case.

(Credit: U.S. Senate)

 

 See also the follow-up story: Leahy scuttles his warrantless e-mail surveillance bill

 

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law, CNET has learned.

Patrick Leahy, the influential Democratic chairman of the Senate Judiciary Committee, has dramatically reshaped his legislation in response to law enforcement concerns, according to three individuals who have been negotiating with Leahy’s staff over the changes. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

Revised bill highlights

 

 

✭ Grants warrantless access to Americans’ electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.

✭ Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered “to the public,” including university networks.

✭ Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.

✭ Says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order, or subpoena.

✭ Delays notification of customers whose accounts have been accessed from 3 days to “10 business days.” This notification can be postponed by up to 360 days.

 

Leahy’s rewritten bill would allow more than 22 agencies — including the Securities and Exchange Commission and the Federal Communications Commission — to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

CNET obtained a draft of the proposed amendments from one of the people involved in the negotiations with Leahy; it’s embedded at the end of this post. The document describes the changes as “Amendments intended to be proposed by Mr. Leahy.”

It’s an abrupt departure from Leahy’s earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boastedlast year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.”

Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations objected to the legislation and asked him to “reconsider acting” on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday. The package (PDF) is a substitute for H.R. 2471, which the House of Representatives already has approved.

One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy’s original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.

Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said requiring warrantless access to Americans’ data “undercuts” the purpose of Leahy’s original proposal. “We believe a warrant is the appropriate standard for any contents,” he said.

An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.

Marc Rotenberg, head of the Electronic Privacy Information Center, said that in light of the revelations about how former CIA director David Petraeus’ e-mail was perused by the FBI, “even the Department of Justice should concede that there’s a need for more judicial oversight,” not less.

Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:

 

 There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations.

 

The list of agencies that would receive civil subpoena authority for the contents of electronic communications also includes the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission.

Leahy’s modified bill retains some pro-privacy components, such as requiring police to secure a warrant in many cases. But the dramatic shift, especially the regulatory agency loophole and exemption for emergency account access, likely means it will be near-impossible for tech companies to support in its new form.

A bitter setback
This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had hoped to convince Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an unrelatedprivacy-related bill supported by Netflix.

At the moment, Internet users enjoy more privacy rights if they store data on their hard drives or under their mattresses, a legal hiccup that the companies fear could slow the shift to cloud-based services unless the law is changed to be more privacy-protective.

Members of the so-called Digital Due Process coalition include Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter. (CNET was the first to report on the coalition’s creation.)

Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI’s efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a billin the 1990s protecting Americans’ right to use whatever encryption products they wanted.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which isnow looming over Web companies, as well as the reviled Protect IP Act. An article in The New Republic concluded Leahy’s work on the Patriot Act “appears to have made the bill less protective of civil liberties.” Leahy had introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

One obvious option for the Digital Due Process coalition is the simplest: if Leahy’s committee proves to be an insurmountable roadblock in the Senate, try the courts instead.

Judges already have been wrestling with how to apply the Fourth Amendment to an always-on, always-connected society. Earlier this year, the U.S. Supreme Court ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans’ cell phones, another coalition concern, is unconstitutional.

The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a ruling by the 6th Circuit Court of Appeals in 2010.

Updated at 5:00 p.m. PT with the proposed amendments, 4:28 p.m. PT to clarify sourcing and at 9:45 a.m. PT with additional details.

Here are the proposed amendments in question:

November 21, 2012 Posted Under: Uncategorized   Read More

Republican Era Bush Appointee Illinois Federal District Judge Strikes Chicago’s Handgun Permit Ordinance Under Heller and Vagueness Challenge

In a big victory for Second Amendment advocates, District Judge Samuel der-yeghiayan held:

Federal Court Upholds Right to Keep and Bear Arms and Awards the NRA $125,000 in Attorney’s Fees

On September 26, 2012 the United States District Court in the Northern District of Illinois awarded the National Rifle Association (NRA) $125,000 to reimburse it for attorney’s fees spent winning a lawsuit against the City of Chicago over a Chicago firearm ordinance on behalf of NRA member Shawn Gowder. In striking down the law, the Court held that the ordinance is unconstitutionally void for vagueness and also violates the plaintiff’s Second Amendment right to keep and bear arms. A copy of the court filings in this case and the $125,000 check from the City of Chicago can be viewed here.

The NRA’s motion for attorney’s fees in the case of Gowder v. Chicago was granted following a successful NRA motion for summary judgment. The Gowder case challenged the constitutionality of a Chicago ordinance that banned people with certain non-violent misdemeanor convictions from possessing firearms in their homes for self-defense. Mr. Gowder had a misdemeanor conviction for “unlawful use of a weapon” (simply having a handgun on his person outside his own home). When Mr. Gowder wanted to possess a firearm in his home and sought a firearm permit (as is required by the Chicago ordinance), his application was denied. Even though his misdemeanor record did not prevent Mr. Gowder from obtaining a Firearm Owner’s Identification card, Mr. Gowder could not obtain the firearms permit necessary to possess a firearm in his own home because the law prohibited permits from being issued to anyone convicted of “an unlawful use of a weapon that is a firearm,” even if it was just a misdemeanor conviction.

In its June ruling on the summary judgment motion, the Court held that the “Chicago Firearm Ordinance does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, in that it does not define the term ‘unlawful use of a weapon.’ It appears that the City of Chicago merely borrowed from an Illinois criminal statute the term ‘unlawful use of a weapon,’ which sounds extremely serious on its face, but in reality can include simple unlawful possession.”

Although the Court was not required to consider whether the ordinance violated the Second Amendment (because it already determined that the ordinance was unconstitutionally vague), the Court nonetheless considered the U.S. Supreme Court decisions of District of Columbia v.Heller (which declared that a ban on handgun possession in the home violates the Second Amendment) and McDonald v. Chicago (which declared that the Second Amendment is fully applicable to the States), and held that the Chicago ordinance violated the Second Amendment as well.

According to the Court, the firearm ordinance did “not differentiate between those who have been convicted of a felony or a misdemeanor, or between those who have been convicted of a violent or non-violent crime, and thus the denial of a [firearm permit] does not find valid foothold in statutory history.” The effect of the ordinance “is to forever strip certain persons residing in Chicago of their constitutional right to protect themselves in their own homes, including, for example, a person convicted forty years ago of simply possessing a firearm (and not unlawfully using it against another).”

After evaluating the ordinance under a text, history, and tradition analysis, as well as a under the more conventional tests of strict scrutiny and intermediate scrutiny, the Court held that the ordinance was unconstitutional under any legal standard of review.

 

November 20, 2012 Posted Under: Uncategorized   Read More

Come On, A Faulty Tail Light Means The Police Can Assault Your Family And Ransack Your House?

You really got to read this story.  Is it me or does this sound like a story from The Onion?

Federal Court: Traffic Stop Does Not Justify Home Entry

Tenth Circuit US Court of Appeals rules a police officer cannot enter a home over a minor traffic violation.

10th Circuit courtroomA police officer has no right to pursue a minor traffic stop into a home, according to a ruling handed down Wednesday by the US Court of Appeals for the Tenth Circuit. A three-judge panel considered what happened after police in Sulphur, Oklahoma saw a suspect allegedly driving with faulty taillights on July 23, 2007.

Murray County Deputy Sheriff Craig A. Billings signaled seventeen-year-old Joshua Burchett, who was driving the car, to pull over. Burchett continued on for two blocks, parked in the driveway of his parents’ three-bedroom home, ran inside and hid in the bathroom. Billings called for backup and Sulphur Police Officers Steve Watkins and Tony Simpson arrived at the scene.

Billings began kicking the door, which woke the parents, Jose and Christina Mascorro. Jose Mascorro opened the door and Billings pointed a gun at his head, yelling, “On your knees [expletive]. Where is he? Where is he?” When Christina Mascorro asked whether Billings had a warrant, she was blasted in the mouth with pepper spray. Billings then sprayed the other residents, including Mascorro’s 14-year-old son. Christina Mascorro retreated to a back bedroom and called 911. Officer Watkins pulled her outside while Deputy Billings kicked in the door to the bathroom, gun drawn, to retrieve Burchett.

Jose and Christina Mascorro, after being treated at the hospital, were arrested and charged with obstructing a police officer in the performance of his duty. The district court judge described the state of their home as “ransacked” after the officers left. The Mascorros sued, claiming the officers made an illegal entry, used excessive force and made a false arrest. The law enforcement officers moved to dismiss the case based on their qualified immunity from prosecution. They argued that their actions were justified because they had been in “hot pursuit” of a fleeing suspect.

The appeals court considered US Supreme Court precedent on the question to determine whether “exigent circumstances” authorized their entry into a home without a warrant. They found only felony cases allowed such entry in extreme cases.

“We do not find the circumstances here amount to the kind of exigency excusing an officer from obtaining a warrant before entering a home,” Judge Terrence L. O’Brien wrote for the court. “The intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit. The risk of flight or escape was somewhere between low and nonexistent. Moreover, there was no evidence which could have potentially been destroyed and there were no officer or public safety concerns.”

Police officers lose their qualified immunity if their on-duty actions violated a constitutional right. The panel found these officers could be sued because they violated the Fourth Amendment protection against unreasonable searches and seizures.

“No reasonable officer would have thought pursuit of a minor for a mere misdemeanor traffic offense constituted the sort of exigency permitting entry into a home without a warrant,” O’Brien concluded.

A copy of the decision is available in a 50k PDF file at the source link below.

Source: PDF File Mascorro v. Watkins (US Court of Appeals, Eleventh Circuit, 8/31/2011)

 

 

November 20, 2012 Posted Under: Uncategorized   Read More

In A Potential Split In The Circuits, The First Opinion Post Jones Comes From The Sixth Circuit And Holds Citizens Do Not Have A Reasonable Expectation Of Privacy In The Data Emanating From Cell Phone That Showed Its Location–Your “Ping Ain’t Protected”

Temporary, throw away phone users, beware. Your pay-as-you-go phones probably have GPS. And, according to a federal appeals court in Cincinnati, police can track the signal they emit without a warrant.

The U.S. Court of Appeals for the Sixth Circuit ruled thatthe Drug Enforcement Administration committed no Fourth Amendment violation in using a drug runner’s cellphone data to track his whereabouts. The DEA obtained a court order to track Melvin Skinner’s phone, after finding his number in the course of an investigation of a large-scale drug trafficking operation.

The DEA didn’t know much about Mr. Skinner or what he looked like. They knew him as Big Foot, the drug mule, and they suspected he was communicating with the leader of the trafficking operation via a secret phone that had been registered under a false name. Agents used the GPS data from his throw-away phone to track him, and he was arrested in 2006 at a rest stop near Abilene, Texas, with a motorhome filled with more than 1,100 pounds of marijuana.

Mr. Skinner was convicted of drug trafficking and conspiracy to commit money laundering. On appeal, he argued that the data emitted from his cell phone couldn’t be used because the DEA failed to obtain a warrant for it, in violation of the Fourth Amendment.

The question in the case was whether Mr. Skinner had a reasonable expectation of privacy in the data his phone emitted. It’s a question that several courts are wrestling with. Federal law enforcement authorities, as in this case, say that investigators don’t need search warrants to gather such information.

Justice Department lawyers argued in a court brief that “a suspect’s presence in a publicly observable place is not information subject to Fourth Amendment protection.”

Judge John M. Rogers, writing for the majority, agreed:

There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this.  If it did, then technology would help criminals but not the police.

He was joined by Judge Eric L. Clay. Judge Bernice B. Donald, who concurred but disagreed with the majority’s Fourth Amendment reasoning, said the DEA couldn’t have figured out the identity of Mr. Skinner, the make and model of his vehicle or the route he would be driving without the GPS data from his phone.

“It is not accurate…to say that police in this case acquired only information that they could have otherwise seen with the naked eye,” she wrote. “While it is true that visual observation of Skinner was possible by any member of the public, the public would first have to know that it was Skinner they ought to observe.”

The opinion can be found here

Other Circuits:  The Fifth Circuit has had all briefing and oral argument under submission since October 2012; The Third Circuit has previously ruled that Magistrates can require a warrant for this information and probable case.

The Fifth Circuit docket for the case is

11-20884 Docketed: 12/14/2011
Nature of Suit: 1890 Other Statutory Actions
In re: Appl of USA for Hist Cell Site
Appeal From: Southern District of Texas, Houston

 

The Third Circuit case can be found here : note, 9th Circuit Judge Tashima was on the Third Circuit panel on the case.

 

Congress is holding hearings on the issue, here:

November 20, 2012 Posted Under: Uncategorized   Read More