Nov 112009
 
 November 11, 2009  Court, Surveillance, U.S. Comments Off on The PC Privacy Battle at the Border

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
 
 November 10, 2009  Court, Surveillance, U.S. Comments Off on Court: Compulsory taking of DNA from pretrial detainee violates Fourth Amendment

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
 
 November 4, 2009  Court, U.S. Comments Off on Calif. Justices Seem OK With DNA-Based Warrant

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
 
 October 31, 2009  Surveillance, U.S. Comments Off on Article: Who Can Sue Over Government Surveillance?

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.