Nov 142009
 

Jim Burrows writes:

The following posting is intended as part of the background information for a forthcoming Get FISA Right chat on the technological issues in “getting FISA right” or more generally balancing needed foreign intelligence gathering with the rights reserved and protected in the Constitution. We eagerly seek your comments here and your participation in the chat. Please post as comments here not only critiques of this posting, but also any ideas regarding who should participate in such a discussion, when we should hold it and any of the ideas that should be discussed.

We will also discuss the logistics of the chat at our next regular organization conference call or two Please join us.

One of the knottiest problems in “getting FISA right” is the question of precisely how to insure that our Constitutionally guaranteed rights are protected while any email is being spied upon. It’s a purely technical problem in one sense, but one that has huge repercussions in the Constitutional and political areas. As a dedicated nerd and and civil libertarian, let me see if I can lay it out clearly.

Read more on Getting FISA Right.

Nov 112009
 

Richard Adhikari reports:

Border protection agents have extensive rights to search electronic devices that travelers take with them through U.S. ports of entry. However, relatively few searches are actually conducted. Border agencies insist they have no interest in holding up legitimate travelers, but civil liberties groups maintain agencies’ policies on searching electronics are too broad and too vague.

Civil liberties groups continue to lock horns with the Department of Homeland Security over border searches of electronic equipment, although relatively few people have been affected.

The Department’s statistics show that only 1,000 laptops were searched between October 2008 and August 2009, a time period in which more than 221 million travelers came through U.S. ports of entry.

So why has the American Civil Liberties Union filed suit against the DHS over the issue?

Read more on TechNewsWorld.

Nov 102009
 

FourthAmendment.com brings us a court opinion out of Pennsylvania that is quoteworthy:

A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment.

The case is United States v. Mitchell, 2009 U.S. Dist. LEXIS 103575 (W.D. Pa. November 6, 2009).

Nov 042009
 

Mike McKee reports:

…..  At issue in People v. Robinson , S158528, is whether an unknown suspect’s DNA profile — as opposed to a physical description — can satisfy the so-called particularity requirement for issuing a “John Doe” warrant, and whether such warrants toll the statute of limitations for bringing criminal charges.

A third issue is whether the unlawful collection of a blood sample violates the Fourth Amendment’s protection against unreasonable searches and seizures.

DeVito represented Paul Robinson, an alleged serial rapist found guilty of an August 1994 assault on a Sacramento woman who wasn’t sure of his race and had only a vague physical description.

Four days before the six-year statute of limitations for filing charges expired on Aug. 25, 2000, prosecutors filed a “John Doe” complaint describing the then-unknown defendant from a DNA profile developed from semen at the assault site. The next day, an arrest warrant was issued, tied to the DNA profile.

Read more on Law.com.

Oct 312009
 

Scott Michelman, staff attorney for the ACLU, has an article (pdf) in the current issue of UCLA Law Review. Here’s the abstract:

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied—and decisions on the merits of core constitutional questions avoided—by court rulings that the challengers lack standing to sue under the Supreme Court’s 1972 decision in Laird v. Tatum. Last year, Congress amended the law governing foreign intelligence surveillance; the law has been challenged in court, and once again the issue of the challengers’ standing is at the heart of the case.

In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance. Unfortunately, the law of standing in the surveillance context remains murky and in important respects appears out of line with the larger body of standing jurisprudence. In some cases, courts impose on surveillance plaintiffs a stricter test for probabilistic injuries than exists in the rest of standing law; in other cases, courts do not recognize as injuries the significant chilling effects a broad and secretive surveillance program can create. This Article argues that the divergent strands of jurisprudence interpreting Laird can be synthesized with general principles of standing law into a coherent and workable doctrine that will open the courthouse doors just wide enough to permit courts to adjudicate the crucial constitutional questions presented by new and emerging regimes of government surveillance.

Hat-tip, Concurring Opinions.

Oct 312009
 

Thomas P. Crocker has an article (pdf) in the current issue of UCLA Law Review.  Here’s the abstract:

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties—to live in the company of others free from state surveillance and intrusion—the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.

Hat-tip, Concurring Opinions.

Oct 302009
 

Ashby Jones writes:

Here’s a question: Is it kosher for a law enforcement agency to, pursuant to a lawfully granted search warrant, search your Gmail account without telling you?

According to an opinion handed down earlier this year and currently making the rounds on legal blogs (here and here), the answer is yes.

The opinion, handed down by Portland, Ore., federal judge Michael Mosman, doesn’t really delve into the case’s facts. It cuts right to the legal issue: whether the government must notify the subscriber to an email service before the government undertakes a search.

[…]

Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

Read more on the WSJ Law Blog.

Over on FourthAmendment.com, John Wesley Hall comments:

The sad fact is that an amendment will be required to put a notice provision into the Stored Communications Act. People think e-mail is private like letters in transit, but “[t]he blunt fact is, they are not.” Technology is steadily overcoming the Fourth Amendment. From GPS to e-mail, our privacy is slipping away, and older notions of the meaning of the reasonable expectation of privacy no longer seem to apply. If people think that e-mail is private, then why cannot they have a subjective expectation of privacy “that society is prepared to recognize as ‘reasonable.'” Katz, infra, at 361 (Harlan, J., concurring).

The case is In the Matter of an Application of the United States for a Search Warrant on the Contents of Electronic Mail and for an Order Directing a Provider of Electronic Communication Services to not Disclose the Existence of the Search Warrant, 2009 WL 3416240 (No. 08-9131-MC, D. Ore.