Sunday, May 15, 2011

Loss of Liberty – The Fourth Amendment

The Fourth Amendment reads :The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment was written directly in response to British general warrants (called Writs of Assistance), in which the Crown would grant general search powers to British law enforcement official. These officials could search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all.
The Seventh Circuit stated that use of GPS devices by law enforcement is a “Fourth Amendment frontier.”  The court then rejected a claim that a warrant is required before the police may place a GPS device on a car.  The case is U.S. v. Cuevas-Perez.
In this case, federal and state law enforcement officers suspected that the defendant was involved in a drug distribution operation. As part of the investigation, they attached a GPS tracking unit to the defendant’s Jeep. 
The most notable aspect of the decision is the court’s rejection of the argument that GPS devices are “different and more intrusive than those addressed in prior [Supreme Court] cases.”  The court said, “we do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads. The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.”
Additionally the Indiana Supreme Court stated “In sum, we hold that [in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Additionally they said "Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court‘s refusal to give Barnes‘s tendered instruction was not error."
A cell phone would be, by most, considered an effect, a personal effect. According to the California Supreme Court, though, the law doesn't apply to cell phones. In a 5-to-2 vote, the court ruled that police don't need a search warrant to search an arrested individual's cell phone -- because cell phones, in essence, are like clothing. Personal effects are items of personal property that one carries on one's person, including identification, jewelry, and clothing. This ruling would seem to be a violation of the Fourth Amendment right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.
The USA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permitted law enforcement to obtain access to tapping stored voicemails by obtaining a basic search warrant rather than a surveillance warrant.  Obtaining the former requires a much lower evidentiary showing. A highly-controversial provision of the Act included permission for law enforcement to use sneak-and-peak warrants.  A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance.  In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutionally violative of the Fourth Amendment.  See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL).  An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons.  These documents typically involve telephone, email, and financial records.  NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL.  Under Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime.  The Department of Homeland security has used NSLs frequently since its inception.  By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
Notice that by using the NSL you can be investigated even you are not thought to have committed a crime and no warrant is necessary.  And when this information is being gathered about you it is illegal for those from whom the information is garnered to tell you. There is no oath or affirmation, no detail of persons and things, just an intrusive witch hunt. This is definitely not what the framers of the constitution had in mind when crafting the Fourth Amendment.
The U.S. Supreme Court held that there is no reasonable expectation in privacy for information known or exposed to third parties. In United States v. Miller, federal agents presented subpoenas to two banks to produce the defendant’s financial records. The defendant argued that the Fourth Amendment required a warrant, not a subpoena, but the High Court concluded that the amendment didn’t apply. There is no reasonable expectation of privacy in the records, the Court reasoned, because the information is “revealed to a third party.” Thus, “checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” The court stated that papers are not considered private when exposed to a third party even though the party was entrusted to keep the information private and secure.
Communications service providers frequently store their customers’ communications. ISPs temporarily store e-mail until it is downloaded by the recipient. Many ISPs enable users to keep copies of previously read e-mails on the ISP’s server, as well as copies of their sent emails. It follows then that since a third party maintains the information, the Fourth Amendment may not apply.
The Stored Communications Act provides some protection, but unfortunately it is quite confusing and its protection is limited. Electronic storage is defined as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” and “any storage of such communication by an electronic communication service for purposes of backup protection.” This definition clearly covers e-mail that is waiting on the ISP’s server to be downloaded. But what about previously read e-mail that remains on the ISP’s server? According to the Department of Justice’s (DOJ) interpretation of the act, the email is no longer in temporary storage, and is therefore “simply a remotely stored file.” The act permits law enforcement officials to access it merely by issuing a subpoena to the ISP.
Electronic Communications Privacy Act adopted in 1986 states the authorities may obtain e-mail without a warrant if it is older than 180 days, thanks to the Electronic Communications Privacy Act adopted in 1986. At that time, e-mail left on a third-party server for six months was considered to be abandoned, and thus enjoyed less privacy protection. However, the law demands warrants for the authorities to seize e-mail from a person’s hard drive.
The Obama administration is urging Congress not to adopt legislation that would impose constitutional safeguards on Americans’ e-mail stored on the servers.
James A. Baker, associate deputy attorney general, testified "“The government’s ability to access, review, analyze and act promptly upon the communications of criminals that we acquire lawfully, as well as data pertaining to such communications, is vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers and other malicious actors,”. The same line for all of the loss of liberties now under way is used once again. As Benjamin Franklin said "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
The most significant deficiency is that a majority of the statutes permit government access to third party records with only a court order or subpoena — a significant departure from the Fourth Amendment, which generally requires warrants supported by probable cause to be issued by a neutral and detached judge. Unlike warrants, subpoenas do not require probable cause and can be issued without judicial approval. Prosecutors, not neutral judicial officers, can issue subpoenas.
Consider two years ago, when the FBI was stymied by a band of armed robbers known as the "Scarecrow Bandits" that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.
FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.
The Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.
However, The Eighth Circuit holds that a cell phone is a “computer” for identity fraud and U.S. Sentencing Guidelines enhancement purposes, adopting the district court's findings and the government's argument. United States v. Kramer, 10-1983 (8th Cir. February 8, 2011).
Remember that in 2007 FBI agents trying to track the source of e-mailed bomb threats against a Washington high school last month sent the suspect a secret surveillance program designed to surreptitiously monitor him and report back to a government server, according to an FBI affidavit obtained by Wired News.
Sanders wrote that the spyware program gathers a wide range of information, including the computer's IP address; MAC address; open ports; a list of running programs; the operating system type, version and serial number; preferred internet browser and version; the computer's registered owner and registered company name; the current logged-in user name and the last-visited URL.
The CIPAV then settles into a silent "pen register" mode, in which it lurks on the target computer and monitors its internet use, logging the IP address of every computer to which the machine connects for up to 60 days.
Under a ruling by the 9th U.S. Circuit Court of Appeals, such surveillance -- which does not capture the content of the communications -- can be conducted without a wiretap warrant, because internet users have no "reasonable expectation of privacy" in the data when using the internet.
The FBI has been known to use PC-spying technology since at least 1999, when a court ruled the bureau could break into reputed mobster Nicodemo Scarfo's office to plant a covert keystroke logger on his computer. But it wasn't until 2001 that the FBI's plans to use hacker-style computer-intrusion techniques emerged in a report by The report described an FBI program called "Magic Lantern" that uses deceptive e-mail attachments and operating-system vulnerabilities to infiltrate a target system. The FBI later confirmed the program, and called it a "workbench project" that had not been deployed.
The government is now telling us we have no reasonable expectations of privacy at home, on our person, papers or effects. No even discussing the violations of the police checkpoints and TSA searches, we are being trained to accept a life of no liberties. The right to freely move about without the fear of governmental interference is a key cornerstone this Republic as much as the right to be free from government intrusion into our privacy. These freedoms are under assault and we all must either stand against these attacks or fall into the hands of tyrants. We are being served with modern writs of assistance that sparked the Fourth Amendment. In 1761 British officials in Boston applied for the writs. James Otis, a fiery and eloquent lawyer, opposed issuance of these writs. He argued that the act of Parliament authorizing writs of assistance was contrary to the British common law, and therefore was void.
Otis made a brilliant speech but he lost his case, and the writs were issued in Massachusetts. Later, however, courts in some of the other colonies refused to issue general search warrants. John Adams, who heard the speech of Otis, wrote of it many years afterwards: "Then and there, the child Independence was born." It is time for the child independence ancestors to be born.

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