Archives for: May 2011, 27


Permalink 10:46:35 am, by fourth, 227 words, 3009 views   English (US)
Categories: General

Wired: "Bill Would Keep Big Brother’s Mitts Off Your GPS Data"

On Bill Would Keep Big Brother’s Mitts Off Your GPS Data by Spencer Ackerman:

The reauthorization of the Patriot Act looks like a forgone conclusion. But next month, a bipartisan band of legislators will try to mitigate a different kind of damage done to civil liberties: the government’s warrantless collection of location data beamed out by your car or mobile phone.

The courts aren’t sure whether so-called “geolocation” data taken from GPS devices or cellphones is covered by the Fourth Amendment, as’s blog Threat Level has extensively reported. That ambiguity has largely enabled law enforcement to snatch it up without getting a warrant or showing probable cause.

Sen. Ron Wyden, a Democrat, and Rep. Jason Chaffetz, a Republican, want to make things crystal clear: no warrant, no geolocation info.

“GPS devices are everywhere and that’s a good thing,” Chaffetz tells “We just don’t want nefarious characters tracking people without someone knowing, nor do I want law enforcement to be able to just follow everyone all the time.”

A bill they’ve collaborated to draft prevents the government from getting tracking data sent by your smartphone, GPS unit or other device — including any “successor device,” a nod to as-yet-unimagined tech — without a court order. It exempts geolocation collection from the Patriot Act’s “business records” provision.

Permalink 08:28:27 am, by fourth, 105 words, 3023 views   English (US)
Categories: General

WaPo: "Congress approves extension of USA Patriot Act provisions"

In today's Washington Post: Congress approves extension of USA Patriot Act provisions:

Racing against the clock, Congress approved a four-year extension Thursday to key provisions of the USA Patriot Act that will allow federal investigators to continue to use aggressive surveillance tactics in connection with suspected terrorists.

Overcoming objections from a bipartisan clutch of libertarian-minded lawmakers, the legislation passed the Senate, 72 to 23, and the House, 250 to 153.

. . .

Under the provisions extended into 2015, investigators can obtain court orders to follow suspected terrorists with “roving wiretaps” that cover multiple phone numbers and carriers. They also will extend provisions that allow investigators to seize customer records for suspected terrorists.

Permalink 08:17:42 am, by fourth, 963 words, 3113 views   English (US)
Categories: General

SCOTUS: Camreta v. Greene moot; so why did they take it?

SCOTUS decides Camreta v. Greene is moot. The case “promised” to decide whether there was a privacy interest in a child at school being interrogated. The Court does reiterate that § 1983 cases could [not should] be decided on the merits before turning to qualified immunity so the constitutional claims will be decided for the future [not something many courts care to do; after all, it is a way of protecting government officials from lawsuits]. Here, however, the case was moot. From the Syllabus:

To begin with the nature of these suits: Under § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But if those officials are entitled to qualified immunity, a court can dismiss the damages claim without ever deciding its merits—and so the qualified immunity situation threatens to leave standards of official conduct permanently in limbo. To prevent that problem, this Court has permitted lower courts to determine whether a right exists before examining whether it was clearly established. See, e.g., Pearson v. Callahan, 555 U. S. 223, 237. Here, the Ninth Circuit followed exactly this two-step process so that it could settle a question of constitutional law and thereby guide the future conduct of officials.

Given its purpose and effect, such a decision is reviewable in this Court at an immunized official’s behest. If the Court’s usual prevailing party rule applied, the official would either have to acquiesce in a ruling he had no opportunity to contest in this Court, or defy the lower court’s view, adhere to what has been declared an illegal practice, and invite further law suits and possible punitive damages. Id., at 240–241. And applying this Court’s usual bar on review would undermine the purpose of the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting v. Mellen, 541 U. S. 1019, 1024 (SCALIA, J., dissenting from denial of certiorari). Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too may it support this Court in reviewing the correctness of the lower court’s decision. This holding is limited in two respects. First, it addresses only this Court’s authority to review cases in this procedural posture. The Court need not decide if an appellate court can also entertain an appeal from a party who has prevailed on immunity grounds. Second, the holding concerns only what the Court may review, not what the Court actually will choose to review. Going forward, the Court will consider prevailing parties’ petitions one by one in accord with its usual standards for granting certiorari. Pp. 7–14.

2. A separate jurisdictional problem requires the Court to dismiss this case at the threshold: The case is moot. In a dispute of this kind,both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of Camreta, who remains employed as a child protective services worker, and so has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she no longer needs protection from the challenged practice. She has moved to Florida and is only months away from her 18th birthday and, presumably, from her high school graduation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” there is no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203.

When a civil suit becomes moot pending appeal, this Court has authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings ... as may be just under the circumstances.” 28 U. S. C. § 2106. The Court’s “established” practice is to vacate the judgment below, see, e.g., United States v. Munsingwear, Inc., 340 U. S. 36, 39, to ensure that “those who have been prevented from obtaining the review to which they are entitled [are] not ... treated as if there had been a review,” ibid. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences.” Id., at 40–41. A constitutional ruling in a qualified immunity case is a legally consequential decision. When happenstance prevents this Court’s review of that ruling, the normal rule should apply: Vacatur rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200, and clears “the path for future relitigation,” Munsingwear, 340 U. S., at 40. Because mootness has frustrated Camreta’s ability to challenge the Ninth Circuit’s ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school, that part of the Ninth Circuit’s decision must be vacated. Pp. 14–18.

Why would four members of the Court decide to take a case that they should have seen was likely going to become moot? This is the second time this Term they have dodged a case: Remember Tolentino v. New York? Cert dismissed as improvidently granted.

Every cert grant in a Fourth Amendment case by the Roberts Court creates serious risk of damage to the Fourth Amendment and individual privacy in America. Herring v. United States's gutting of the exclusionary rule is Exhibit 1. It takes four votes for a cert grant, and the conservative bloc [the Death STAR*] seems willing to do anything to advance the power of government over the citizen.

It is just bad form to take a case and then dodge it. This tells me that their cert grants are slanted to aid the government. Maybe I'm just overly cynical, but that's what I feel in my heart of hearts.


* Scalia, Thomas, Alito, Roberts.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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