Archives for: January 2013, 24

01/24/13

Permalink 07:27:26 pm, by fourth, 369 words, 892 views   English (US)
Categories: General

ArsTechnica: "Google stands up for Gmail users, requires cops to get a warrant"

ArsTechnica: Google stands up for Gmail users, requires cops to get a warrant | As e-mail privacy laws stall in Congress, Google pushes for stronger standard by Cyrus Farivar:

The United States remains far ahead of all governments who request user information from Google, according to the company’s latest Transparency Report (July through December 2012) which was released on Wednesday.

American government agencies (including federal, state, and local authorities) made over 8,400 requests for nearly 15,000 accounts—far exceeding India, the next largest country in terms of information requests. In 88 percent of those queries, Google complied with at least some, if not all, of the requests.

For the first time, the search giant is also breaking down the type of legal requests that were made.

Google said that 22 percent of those requests were made under probable cause driven search warrants delivered via the Electronic Communications Privacy Act (ECPA). Authorities have also been known to request information using ECPA subpoenas, which are much easier to obtain. It's unclear how many of the subpoenas or warrants Google complied with—the company has only said it complied in part or in full to 88 percent of total requests from American authorities.

"In order to compel us to produce content in Gmail we require an ECPA search warrant," said Chris Gaither, Google spokesperson. "If they come for registration information, that's one thing, but if they ask for content of e-mail, that's another thing."

GooglePublicPolicy.blogspot: Transparency Report: What it takes for governments to access personal information by Richard Salgado, Legal Director, Law Enforcement and Information Security

The numbers:

•68 percent of the requests Google received from government entities in the U.S. were through subpoenas. These are requests for user-identifying information, issued under the Electronic Communications Privacy Act (“ECPA”), and are the easiest to get because they typically don’t involve judges.
•22 percent were through ECPA search warrants. These are, generally speaking, orders issued by judges under ECPA, based on a demonstration of “probable cause” to believe that certain information related to a crime is presently in the place to be searched.
•The remaining 10 percent were mostly court orders issued under ECPA by judges or other processes that are difficult to categorize.

http://googlepublicpolicy.blogspot.com/2013/01/transparency-report-what-it-takes-for.html

Permalink 08:50:39 am, by fourth, 194 words, 969 views   English (US)
Categories: General

What if the good faith exception gets to apply to dog sniffs?

It is settled, as of now at least because the issue is in SCOTUS, that a drug dog alert is probable cause. United States v. Salgado, 2013 U.S. Dist. LEXIS 8808 (D. S.D. January 17, 2013).* [Note: This long discussion of what a drug dog does and why, including accuracy, seems almost like a prelude to imposing Davis-type good faith on drug dogs if SCOTUS reverses in its current cases.]

Officers had knowledge of a small drug sale by defendant, and that was probable cause to stop him. United States v. Elliott, 2013 U.S. Dist. LEXIS 8829 (E.D. Mich. January 23, 2013).*

Defendant consented to a search while on state parole. He was a fugitive from supervision, and officers were looking for him. When he was found, he’d put a gym bag in a car. The gym bag was properly searched. United States v. White, 2013 U.S. Dist. LEXIS 9122 (S.D. Ill. January 23, 2013).*

There was clearly probable cause for the automobile exception in this case, and defense counsel was not deficient for not filing a motion to suppress on what would be a frivolous ground. Marin-Vega v. United States, 2013 U.S. Dist. LEXIS 8593 (M.D. Fla. January 22, 2013).*

Permalink 03:45:48 am, by fourth, 265 words, 1131 views   English (US)
Categories: General

DigitalCrazyTown: "Google Exec: Data Privacy Laws Violate the Fourth Amendment"

DigitalCrazyTown: Google Exec: Data Privacy Laws Violate the Fourth Amendment by Cynthia Brumfield:

(Washington, DC) The main existing law that limits the scope of law enforcement electronic snooping violates the Fourth Amendment to the Constitution when it comes to Internet communications, a top Google expert said here today. Speaking at the Congressional Internet Caucus' Annual State of the Internet Conference, Google's Director of Law Enforcement and Information Security Richard Salgado said that "our view is that the statute [the Electronic Communications Privacy Act or ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant." The Fourth Amendment guards against unreasonable searches and seizures by the government.

ECPA, drafted in the 1980s when telephones were the primary mode of electronic communications, does not extend to email or other forms of Internet communication. Under ECPA, government authorities can and do request user information records with either commonplace, easy-to-issue subpoenas or with little more than written notices stating that the data are pertinent to an investigation. Telephone wiretaps, on the other hand, are usually subject to more stringent requirements for search warrants, which are issued by courts and judges and are based on the legal standard of probable cause.

Two queries:
(1) Why is this website the first to report this?
(2) Why isn't Google, with more money than the U.S. Government, not litigating this? Or are they waiting for the right opportunity to sue?

This just states the obvious: Technology can overwhelm statute, and that makes it unconstitutional. That's exactly what happened with ECPA.

FourthAmendment.com

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by John Wesley Hall
Criminal Defense Lawyer and
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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)


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

"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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