In a ruling certain to profoundly shape the ongoing debate over surveillance reform in Congress, the U.S. Court of Appeals for the Second Circuit has ruled that the National Security Agency’s indiscriminate collection of Americans’ telephone calling records exceeds the legal authority granted by the Patriot Act’s controversial section 215, which is set to expire at the end of this month.
Comments Cato scholar Julian Sanchez, “While the court didn’t reach the crucial question of whether the program violates the Fourth Amendment, the ruling gives civil libertarians good reason to hope that a massive and egregious violation of every American’s privacy will finally come to an end.”
- “Second Circuit Declares NSA’s Telephone Dragnet Unlawful,” by Julian Sanchez
- “In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property,” by Jim Harper
For Techdirt, Tim Cushing writes: The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees’ cell phones contains some truly terrible suppositions. Here’s a brief recap of the situation in this case:
In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.
The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.
As was noted by Orin Kerr at the Volokh Conspiracy, a lot has changed since 2007. The phone the police searched seven years ago was a grey flip phone with limited capabilities. Unfortunately, the Court is using this case to set precedent for a nation full of smartphones, which contain considerably more data and are roughly the equivalent of a person’s home computer, rather than the address book the government refers to in its arguments. Read the rest of this entry »
The LA Times’ David Savage reports: Police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected, the Supreme Court ruled Tuesday in a Los Angeles case.
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it.”
— Justice Ginsburg
The 6-3 ruling, triggered by a Los Angeles Police Department arrest in 2009, gives authorities more leeway to search homes without obtaining a warrant, even when there is no emergency.
The majority, led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate’s approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures.
“…it’s up to each and every one of us as free Americans. Do your civic duty: Take out your smartphones, America, and stand your ground for freedom.”
As the Sun-Sentinel reports, 33-year old Brandy Sherling was stopped by a Broward County, Florida sheriff’s deputy for a minor traffic violation. When she told the officer she was recording the conversation on her smart phone, he demanded she give him the phone and told her (erroneously) that she was committing a felony by recording him. The argument went on for over four minutes. Finally the officer pushed Ms. Sherling from her car, twisting her arm and spraining her wrist in the process. She spent a night in jail—but was never charged. Now she’s suing. Good for her.
[See also – 7 Rules for Recording Police]
Oh, not because she’s going to get a ton of taxpayer’s cash from Broward County. Because she shows us the way we Americans will ultimately protect our freedom and civil rights in a nation where the desire for security now trumps the Bill of Rights.
From the NSA sweeping up metadata to local police scanning license plates, the authorities believe they have carte blanche to surveil us. So as they spy on us, we have a civic duty to return the favor – just like Brandy did with her smartphone.
You see, the only real safeguard we have against this new wave of creeping, technology-driven totalitarianism is to expose the abuses, and create tidal waves of public outrage. The surveillance community instinctively understands how powerful and deeply ingrained our distrust of government “security” runs, even in red states. Justice Scalia, certainly no liberal, penned the 2012 Supreme Court opinion in United States v. Jones, which found the warrantless use of GPS auto tracking devices violated the Fourth Amendment. Read the rest of this entry »
John Glaser writes: In what many described as yet another indication of a monumental shift happening in the Grand Old Party, the Republican National Committee last week passed a resolution calling for an end to the National Security Agency’s bulk collection of Americans’ phone records.
But the party’s apparent shuffling to a more limited government, civil liberties-conscious platform may not be as genuine as some believe.
The RNC’s resolution, which passed by an “overwhelming majority,” declares “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution.”
I just had this conversation recently, about how few people are alert and informed about what their rights are, and can act accordingly (and respectfully). When confronted by a law enforcement official it’s easy to be intimidated. Easy to be misled. Or simply not confident enough to manage the encounter and be your own best advocate.
I saw a YouTube video recently featuring a young, hyper-informed law student who’d been detained by a cop, simply for legally carrying a pistol (in a state where open carry is permitted) because a passerby spotted it and it made them uncomfortable. Then complained to the police about seeing a man walking down the sidewalk with a gun on his belt and thought the somebody better look into it.
A policeman (who clearly didn’t understand the law any better than the complaining citizen did) confronted the guy, detained him, and had him surrender the weapon. Not realizing his detainee was fully aware of his rights, and with no shortage of confidence. The cop was stubborn, and confused. The law student was agitated, impatient (but not rude or abusive) and had complete verbal control of the situation. Arguing, citing case law, refusing to cooperate, not even giving his name. (news to me, you’re not required to give your name just because a cop is curious, if you’re not under arrest, and you’re obeying the law. This law student flat-out refused to identify himself to the cop) The whole incident captured on video. It’s brilliant. More on this in a moment… back to Theodore Dalrymple:
Theodore Dalrymple writes: Don’t be intimidated by police at your door. These rules will help protect your rights and improve your odds of avoiding a home search.
No Warrant, No Search!
The Supreme Court has ruled that the home is entitled to maximum search protection. Even if they have probable cause to believe something illegal is going on inside your home, the 4th Amendment requires police to get a signed search warrant from a judge to legally enter and search.
Clip from the DVD, 10 Rules for Dealing with Police
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said the judge, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”
Bloomberg’s crusades mean more people will die
Question: What do the National Rifle Association and the American Civil Liberties Union have in common? Answer: The determination to stop New York Mayor Michael Bloomberg from having his way with guns. The NRA defends the Second Amendment’s right to bear arms. The ACLU defends the Fourth Amendment’s constraints on “stop- and-frisk.” Between the two, guns will remain on the street and more people will die.
The numbers are irrefutable. Last year, 419 New Yorkers were murdered, mostly by gunfire. In 1992, the figure was 1,995. That works out to approximately four fewer New Yorkers a day who were not killed by guns. Yes, crime has fallen across America, but nowhere has the drop approached New York City’s. Some of that is due to whiz-bang policing, computers and all that jazz. But some of it is due to stop-and-frisk. There are simply fewer guns on the street. (The New York Police Department estimates that in 1993, “as many as 2 million illegal guns were in circulation in New York City,” many of them imported from Virginia.)
Rightly or wrongly — a court will ultimately decide — the city’s stop-and-frisk program has collided with the Fourth Amendment’s injunction against “unreasonable searches and seizures.” More controversially, U.S. District Judge Shira A. Scheindlin has ruled that the program is racial profiling at its most pernicious and that, too, is illegal. After all, of an incredible 4.4 million stops, an overwhelming number were of black or Hispanic men — and resulted in relatively few arrests. It did not seem to matter to the judge that an equally overwhelming number of both assailants and victims were also black and Hispanic men. Her gavel came down. The city was guilty.