Tag: Fourth Amendment

Categories
Law Privacy

New York ruling that lets police follow cellphone locations without a warrant highlights significance of Supreme Court review in Carpenter case

New Yorkers have no constitutionally protected right to privacy in information about our whereabouts that can be deduced from the data emitted by our cellphones, an appeals court in Rochester has ruled in a case that underscores the significance of a ruling expected this spring from the U.S. Supreme Court.

Sharhad Jiles was sentenced to 25 years to life in prison after being found guilty in the shooting death of Sheldon Hepburn during a 2011 robbery. At trial, prosecutors used records obtained from the company that provided Jiles’ cellphone service to place him in the location of the murder.

Jiles asked the judge to exclude the records, which revealed his location over a period of four days beginning on the data of the robbery; information that Jiles contended prosecutors needed a warrant to obtain.

Prosecutors had acquired the records, which track every time our cellphones register with the nearest tower, via a subpoena issued to the provider pursuant to the federal Stored Communications Act, which allows the government to obtain such data without a showing of probable cause of a crime. The trial judge sided with prosecutors and Jiles appealed.

On appeal, Jiles argued that so-called cell site location information is protected by the Fourth Amendment by two rulings of the Supreme Court: a 2012 decision that overturned the conviction of a Maryland man based on evidence obtained from a GPS device that police, acting without a warrant, affixed for 28 days to the underside of his automobile; and a 2014 ruling by the court that police may not, without a warrant, search the contents of a cellphone obtained from someone who has been arrested.

The New York court disagreed, citing a series of rulings by federal courts that suspects have no constitutionally protected privacy in records they voluntarily supply to a third party such as checks, deposit slips and other records filed with banks or telephone numbers they dial.

“We remain bound by the third-party doctrine when interpreting the Fourth Amendment [until] a majority of justices on the [Supreme] Court instructs us otherwise,” Justice Gerald Whalen wrote on behalf of the court in a Dec. 22 ruling.

The instruction should arrive this spring, when the Supreme Court is expected to rule in an appeal from Timothy Carpenter, who was convicted and sentenced to 116 years in prison for a series of robberies in Ohio and Michigan.

At trial, prosecutors introduced evidence of Carpenter’s location they gleaned from records obtained from his cellphone provider that revealed his movements over a period of 127 days.

Like Jiles, Carpenter contended that the government should have obtained a warrant for the records, but both the trial judge and the 6th U.S. Circuit Court of Appeals disagreed.

The Supreme Court heard arguments in the appeal on Nov. 29. Nathan Wessler, an attorney with the American Civil Liberties Union who argued on behalf of Carpenter, distinguished business records such as those filed with a bank from the location data collected by the towers that carry calls from our cellphones.

“The information in bank records can be quite sensitive, but what it cannot do is chart a minute-by-minute account of a person’s locations and movements and associations over a long period regardless of what the person is doing at any given moment,” Wessler said in response to a question by Justice Alito.

Such data gives the government “a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets,” he said later in response to a question from Justice Kennedy.

Arguing for the government, Deputy Solicitor General Michael Dreeben dismissed the distinction. By obtaining records that reveal a suspect’s historical location, the government “is doing the same thing” it did in the case of bank records, he told the justices. “It is asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customers,” Dreeben added.

As Amy Howe at Scotusblog noted, the challenge for the justices may be where to draw the line between information that is entitled to protection of the Fourth Amendment and that which the government can obtain with a subpoena.

“This is highly personal information,” Justice Breyer remarked, referring to location data that can be gleaned from cell towers.

Justice Sotomayor took note of the erosion on privacy that can accompany developments technology. “Right now, we’re only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom, “she said. “It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing. So I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.”

Justice Alito pushed back, challenging Wessler to distinguish cell site location data from bank records or telephone numbers called. Cellphone service contracts advise subscribers that the company can disclose location information to the government pursuant to a court order.

Wessler replied that the Stored Communications Act provides two ways the government can obtain records: either by a court order or a warrant. That, he argued, suggests that anyone looking at the law “would be quite reasonable and right to assume that the reason there’s a warrant prong is to deal with records like these in which there’s a strong privacy interest.”

Some experts say the march of technology means it’s time for the court to discard the third-party doctrine entirely. Writing recently in The Washington Post, Bruce Schneier, a technologist and lecturer at Harvard’s Kennedy School, noted that we store most of our data on computers that belong to other people.

“It’s our email, text messages, photos, Google docs, and more — all in the cloud,” Schneier wrote. “All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator — or police officer — could possibly collect by following you around.”

Police should be able to draw on the data to help solve crimes, Schneier said. But they first should be required to have probable cause and obtain a warrant.

“It’s long past time the Supreme Court recognized that… my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers,” he noted.

Categories
Law

Here’s the difference between evidence seized without probable cause and evidence obtained legally

Just as the Constitution requires the suppression of evidence that police seize in an illegal arrest, the law limits that suppression to evidence that was obtained illegally, a New York appeals court has ruled.

Items collected from a defendant must be excluded from the evidence presented against him at trial if the police lacked probable cause to arrest him, but his identification by the victim and statements he later makes to police after waiving his Miranda rights are admissible, the Appellate Division’s fourth department ruled on Sept. 30.

The appeal arose from a conviction of Fleming Ashford III, who in Oct. 2011 pleaded guilty to armed robbery in the first degree. The case began when police in Rochester responded after midnight to the robbery of a taxi driver. Less than 10 minutes later, they found Ashford, who matched the driver’s description, running from them near the crime scene. After detaining him, an officer searched Ashford and seized a phone, money and a do-rag from the pocket of his jeans.

The police then brought Ashford in front of the driver, who identified Ashford as the person who robbed him. From there, police took Ashford to the station, where he waived his right to remain silent. From a courtyard near where Ashford was arrested, police retrieved a gun, some clothing and keys that belonged to the victim.

On appeal, Ashford asserted that the police lacked probable cause to arrest and search him, and, consequently, that the physical evidence, his identification by the driver and his statements to police all should have been suppressed.

The court disagreed with respect to the driver’s identification of Ashford, Ashford’s statements to police and the items collected from the courtyard.

“Here, defendant did not meet his burden of establishing that the showup identification of him, his statements to the police, and the items seized… were causally related to his unlawful arrest prior to the showup identification procedure,” Associate Justice John Centra wrote for the panel. (In New York, running from the police, by itself, does not give police probable cause to stop and search you.)

The appellate division agreed with Ashford as to the evidence seized from him but held that police “had reasonable suspicion to pursue defendant and detain him for the purpose of the showup identification,” according to Centra, who vacated Ashford’s plea “inasmuch as the erroneous suppression ruling may have affected [his] decision to plead guilty.”

According to the court, police were permitted to frisk Ashford to check for weapons but not permitted to search him. “In other words,” added Centra, “only evidence that has been come at by exploitation of that illegality should be suppressed.” (citation omitted).

Categories
Law

The deaths of Alton Sterling and Philando Castile remind us of the stakes of being stopped

I started writing this post before the deaths of Alton Sterling and Philando Castile, black men who were fatally shot last week by police in the name of public safety. But their deaths underscore the subject, which is the high stakes of unlawful stops by police.

Sterling appears to have been pinned to the ground by officers in Baton Rouge when one of them shot him. The circumstances of his death resembled those of Eric Garner, a black man who died two years ago in a police chokehold while being arrested on Staten Island.

Garner died at the hands of police while being arrested for selling loose cigarettes. Sterling was selling CDs outside a food mart. The store’s owner reportedly considered Sterling a friend.

As Emily Badger at Wonkblog notes, both men died while hustling. “In the days after Garner’s death,” writes Badger, “mourners kept juxtaposing the scale of that misdemeanor with what happened next: How could a few loosies justify a response so forceful it snuffed out a grown man’s life?”

The deaths of Garner, Sterling, Castile and too many others, underscores the stakes for all of us, but particularly for people of color, of being stopped by police.

Three years ago, Judge Shira Scheindin of the U.S. District Court in Manhattan invalidated a program of the city’s police department that authorized officers to stop mostly black or Latino residents of the city who happened to be leaving privately owned apartment buildings in the Bronx.

The stops lacked a legal basis, ruled Judge Scheindlin, who observed that the consequences of a conviction, which, after all, can follow from an arrest, have become more severe over the nearly 50 years since the U.S. Supreme Court held that the Fourth Amendment applies to so-called stop-and-frisk procedures. A criminal record can render you unable to obtain a job, rent an apartment, obtain government benefits or, in some states, serve on a jury or vote, she noted.

Justice Sonia Sotomayor reminded us of that recently when she dissented from a ruling by a majority of the court that evidence discovered by police during an illegal stop can nevertheless be admitted in a subsequent criminal trial of the person stopped if the person happened to have an outstanding warrant for his or her arrest.

In short, you can be stopped illegally – in violation of your constitutional rights – and if there happens to be a warrant pending for your arrest, the law will overlook the unlawfulness of the stop.

The case before the court concerned an appeal by Edward Strieff, a white man from Salt Lake City, who six years ago left a house that was under surveillance by police who had received a tip that the occupants were dealing drugs. Detective Douglas Fackrell watched Strieff walk toward a convenience store nearby. In the store’s parking lot, Fackrell stopped Strieff, identified himself and asked Strieff what he was doing at the house.

As part of the arrest, Fackrell asked Strieff for identification, which Strieff produced. Fackrell relayed the information to a police dispatch, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell then arrested Strieff for that violation. When the officer searched Strieff incident to the arrest – a basic precaution when arresting someone – he discovered a baggie of methamphetamine and drug paraphernalia.

The state charged Strieff with unlawful possession. Strieff sought to suppress the evidence, which he asserted was inadmissible because it was derived from an unlawful stop – that Fackrell had no legal basis for detaining Strieff in the first place. At a hearing on whether to suppress the evidence (because of the illegal stop), the prosecution conceded that the stop was unlawful, but argued that the evidence should be admitted because the existence of a valid arrest warrant lessened the connection between the unlawful stop and the discovery of the drugs.

A trial judge agreed with the state, ruling that the short time between the illegal stop and the search weighed in favor of suppressing the evidence but that the existence of a valid warrant constituted an extraordinary intervening circumstance. The judge also noted that Fackrell, who had been conducting a legitimate investigation of a suspected drug house, had not engaged in flagrant misconduct.

The Utah Supreme Court reversed, holding that the evidence was inadmissible because only a voluntary act by Fackrell – such as his confessing or consenting to the search – could have severed the connection between an illegal search and the discovery of evidence.

A majority of Justice Sotomayor’s colleagues disagreed, holding that the evidence discovered on Strieff was admissible because the unlawful stop was sufficiently weakened by the preexisting warrant. Writing for the majority, Justice Clarence Thomas explained:

“The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

Reread that last sentence. There is no evidence that the officer’s illegal action was flagrantly unlawful.

Huh.

According to Justice Sotomayor, the decision raises a principle at the core of the Fourth Amendment: that two wrongs don’t make a right. The alternative – that the warrant somehow rights the wrong – she wrote, is “a remarkable proposition.”

What’s more, she noted, the reasoning by the majority threatens to give police an incentive to stop suspects illegally because outstanding warrants are common.

Citing the Justice Department’s investigation of the town of Ferguson, Missouri following the fatal shooting of Michael Brown, an 18-year-old black man, by a white police office who had stopped him (and who may or may not have had probable cause to stop Brown), Justice Sotomayor noted that Ferguson, with a population of 21,000, had 16,000 people with outstanding warrants against them. In one year in New Orleans, she observed, officers made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid parking tickets. She cited data from Utah that shows the state lists more than 180,000 misdemeanor warrants in its database.

Unlawful stops “have severe consequences much greater than the inconvenience suggested by the name,” she wrote. “Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more,” she added. And, she explained:

Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check… And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you ‘arrestable on sight’ in the future.

Think about how fortunate you are if you’ve never been arrested. Even if you’ve never so much as jaywalked, you might have stood in the wrong place at the wrong time, or been mistaken for someone else and arrested by accident. And that alone might change the trajectory of where you work or where (or whether) you live.

As Justice Sotomayor, who grew up in public housing in the Bronx, noted, the appeal by Strieff involved a stop in which the officer, by arresting Strieff without justification, set in motion a series of events that led to Strieff’s conviction.

“The white defendant in this case shows that anyone’s dignity can be violated in this manner,” she wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny.”

She continued, “For generations, black and brown parents have given their children ‘the talk’ – instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.”

The majority’s ruling, wrote Justice Sotomayor:

“… legitimizes the conduct that produces this double consciousness” and “tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

To Justice Sotomayor, the people who are targeted routinely by police are “canaries in the coal mine whose deaths, civil, and literal, warn us that no one one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

Categories
Privacy

Cell site records privacy comes to the Supreme Court

This fall the Supreme Court will decide whether to hear an appeal that addresses the privacy each of us has in information our cellphones exchange with the network that reveals our movements over time.

The matter comes to the Court in an appeal by Quartavious Davis, an Alabama man who was convicted in 2011 of a string of seven armed robberies in Miami, Florida that netted him a sentence of 162 years in prison. Federal prosecutors tied Davis to the heists—which included robbing a pharmacy, an auto parts store, a beauty salon, and a fast food restaurant—in part from transmissions between his cellphone and the towers it transmitted to as he moved about town.

Prosecutors obtained the cell site data pursuant to an order from a federal magistrate judge that authorized them to review Davis’ phone location for a period of 67 days in September and October of 2010 that straddled the heists.

According to court papers, the records, which prosecutors obtained from MetroPCS, Davis’ service provider, revealed 11,606 points of information about his whereabouts, including calls he allegedly placed to and received from co-conspirators.

At trial, Davis moved to exclude the location information, asserting that prosecutors obtained it without a search warrant. Prosecutors relied instead on the Stored Communications Act, a federal law that authorizes law enforcement to obtain records a magistrate deems relevant to an ongoing criminal investigation.

The problem, Davis asserts, is that the government’s obtaining the location data constituted a search within the meaning of the Fourth Amendment. That required prosecutors to obtain a warrant supported by probable cause, which means prosecutors would have had to demonstrate to a judge a reasonable basis for believing a crime had been committed.

The distinction matters to Davis, who was sentenced at age 22 and faces the rest of his live in prison, but also to anyone who uses a cellphone, which is to say nearly all of us. Ninety-two percent of American adults own a cellphone or smartphone, according to a study published in August by the Pew Research Center. And 90 percent of cellphone owners say they frequently carry their phone with them.

Cell site information reveals an abundance of information about us. As Justice Sotomayor wrote in 2012 in a case that found the government’s attaching a GPS device to a vehicle for 28 days to be a search within the meaning of the Fourth Amendment, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Davis’ appeal presents the Court with an opportunity to revisit the so-called third-party doctrine, which holds that you lack a reasonable expectation of privacy in information you disclose voluntarily to third parties. The approach, which traditionally applied to things like a suspect’s bank records, makes less sense in an age in which, as Justice Sotomayor noted in the concurrence cited above, “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The Court has recognized as much. Last year the justices ruled unanimously that police may not, without a warrant, search information on a cellphone from someone who has been arrested. Writing for the Court, Justice Roberts noted:

“Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

In Davis’ case, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that the government violated his rights under the Fourth Amendment by obtaining the cell site location records without a warrant. Still, the panel sided with the trial judge and upheld the conviction because prosecutors relied in good faith on the magistrate’s order.

By a vote of 6 to 5, the entire Eleventh Circuit later reversed the panel, holding that the government did not violate the Fourth Amendment when it obtained the location data because Davis had no reasonable expectation of privacy in records held by his service provider.

The ruling set up a split among federal appeals courts. The U.S. Court of Appeals for the 4th Circuit ruled in August that the government’s accessing cell site data constitutes a search under the Fourth Amendment. That makes the case ripe for review by the Supreme Court, Davis contends. According to the Electronic Frontier Foundation, which filed a friend-of-the-court brief urging the Court to decide the case:

“Given the prevalence of cellphones and smartphones, and the increasing number of law enforcement requests for this sensitive information, this case thus presents a question of compelling national importance. The number of Americans promised that [cell site location information] remains private and accessible to law enforcement only with the protections of a search warrant is increasing. Yet, this legal protection is not uniform, and the federal courts in particular have issued conflicting opinions on the topic, leaving the public and law enforcement in limbo.”

The number of requests by law enforcement for location data is rising. According to figures cited by EFF, AT&T projects it will receive nearly 76,000 requests for cell site location information this year from law enforcement, up 19% from a year earlier and just under the number of such requests received in 2012. Verizon is projecting a 55% increase in the number of so-called cell tower dumps, a majority of which, EFF observes, occur without a warrant.

Note that Davis’ appeal ties to historical location data. Several states already require police to obtain a warrant before tracking a cellphone in real time. This chart from 2011 will give you a sense of how long your cellular provider retains a record of towers used by your phone.

For the Court to take up Davis’ case, at least four justices will have to vote to hear the appeal. In addition to an opportunity to unify the circuits, the justices could use the appeal to clarify the standard for assessing the government’s conduct. Orin Kerr, a professor of law at George Washington University, says the Eleventh Circuit’s reasoning also may make the case worthy of review. As Kerr wrote in The Washington Post following the appeals court decision:

“Instead of the… rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.

This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.”

According to the Reporters Committee for Freedom of the Press, allowing warrantless access to cell site data also undermines freedoms guaranteed by the First Amendment. “In part because location data can be so revelatory, journalists frequently go to great lengths to ensure that the locations where they meet their sources are kept private, and that their communications are confidential,” the group writes in a friend-of-the-court brief.

From precedent, we know the justices are paying attention to the privacy implications of technology. In that regard, they seem likely to read a concurrence by Judge Robin Rosenbaum, a member of the Eleventh Circuit who, despite finding the search of Davis’ location data reasonable under the Stored Communications Act, expressed concern.

“In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life,” Rosenbaum wrote. “And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling.”

Categories
Life Privacy Tech

Facebook loses appeal over search warrants

Facebook cannot challenge the constitutionality of a search warrant on its users’ behalf prior to the government’s executing the warrant, an appeals court in New York has ruled in a decision that delineates a boundary for Internet privacy.

The ruling follows a lawsuit by Facebook to void 381 search warrants the company received two years ago from the Manhattan district attorney’s office, which obtained then in connection with an investigation into Social Security disability claims by a group of retired firefighters and police officers whom the DA suspected of feigning illness they attributed to the aftermath of the 9/11 attacks.

Upon receiving the warrants, which sought information derived from the users’ accounts, Facebook asked the DA to withdraw the warrants or to strike a provision that directed the company to refrain from disclosing their existence to users whose postings were to be searched. The DA’s office asserted the confidentiality requirement was needed to prevent the suspects being investigated from destroying evidence or fleeing the jurisdiction if they knew they were being investigated.

After the DA declined to withdraw the warrants, Facebook sued to either quash them or compel the DA remove the non-disclosure provision. The trial court sided with the DA and Facebook appealed.

The appeals court affirmed that the legality of the searches could be determined only after the searches themselves were conducted. “There is no constitutional or statutory right to challenge an alleged defective warrant before it is executed,” Judge Dianne Renwick wrote for a unanimous panel of the court’s appellate division in a ruling released July 21. “We see no basis for providing Facebook a greater right than its customers are afforded.”

The constitutional requirement that a warrant can issue only upon a showing of probable cause as determined by a judicial officer helps to ensure the government does not exceed its authority when requesting a search warrant and eliminates the need for a suspect to make a motion to void the warrant before it can be served, the court noted. “Indeed… the sole remedy for challenging the legality of a warrant is by a pretrial suppression motion which, if successful, will grant that relief,” Renwick explained.

According to Facebook, which was joined in the appeal by Google, Twitter, Microsoft and other tech industry firms, the federal Stored Communications Act also gave the company the right to challenge the warrants. But that law, which protects the privacy of email and other communications stored on servers belonging to ISPs, authorizes ISPs to challenge subpoenas and court orders but not warrants obtained from a judicial officer based on a showing of probable cause, the court noted.

Despite its ruling, the court agreed with Facebook that the DA’s serving 381 warrants swept broadly and suggested the users themselves may have grounds for suppression. “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home,” wrote Renwick. “These bulk warrants demanded ‘all’ communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook users accounts only 62 were actually charged with any crime.”

Through civil liberties groups hoped the appeal might bolster protections for Internet privacy, experts said the ruling makes sense as a matter of law. As Orin Kerr, a professor of criminal procedure at George Washington University Law School who has written extensively about privacy and the Internet, wrote in The Washington Post:

“Think about how this plays out in an old-fashioned home search. If the cops show up at your door with a warrant to search your house, you have to let them search. You can’t stop them if you have legal concerns about the warrant. And if a target who is handed a warrant can’t bring a pre-enforcement challenge, then why should Facebook have greater rights to bring such a challenge on behalf of the targets, at least absent legislation giving them that right?”

Still, “that doesn’t mean the warrants were valid,” added Kerr, who imagined that the defendants themselves seem likely to challenge the sweep of the material seized from their Facebook accounts if they haven’t already.

For its part, Facebook disagreed with the ruling but said the company had not decided whether to appeal. “We continue to believe that overly broad search warrants—granting the government the ability to keep hundreds of people’s account information indefinitely—are unconstitutional and raise important concerns about the privacy of people’s online information,” Jay Nancarrow, a spokesman for the company, told the Times.

The DA’s office noted that the investigation led to the indictment of 134 people and alleged hundreds of millions of dollars in fraud. “In many cases, evidence on [the suspects’] Facebook accounts directly contradicted the lies the defendants told to the Social Security Administration,” Joan Vollero, a spokeswoman for the district attorney’s office, said in a statement.

 

Categories
Law Privacy

Search of seized hard drives highlights questions of privacy in a digital age

A federal appeals court in New York has agreed to hear anew an appeal that explores the contours of privacy in a digital age.

At the urging of one of their colleagues, a majority of judges on the 2nd Circuit U.S. Court of Appeals voted on June 29 to rehear an appeal filed by Stavros Ganias, an accountant from Wallingford, Connecticut who was convicted in 2011 of two counts of tax evasion and sentenced to 24 months in prison.

The ruling reopens an appeal decided in June 2014 by three judges of the court, who in a divided ruling vacated Ganias’ conviction after concluding that the government violated his Fourth Amendment rights when it retained files from his lawfully searched computers for more than two-and-a-half years and then searched them again when it later developed probable cause.

The case highlights a difference between searches of books or papers and searches of computers and other electronics, which can hold files that range from the professional to the personal and may encompass far more information about someone from whom the government seizes such devices than the warrant itself authorizes.

In deciding to review the ruling, the majority asked the parties and their allies to address two questions that the court will consider when it convenes for oral argument on Sept. 30.

“(1) Whether the Fourth Amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard drives for some two-and-half years, and then searched the non-responsive files pursuant to a subsequently issued warrant; and

(2) Considering all relevant factors, whether the government agents in this case acted reasonably and in good faith such that the files obtained from the cloned hard rives should not be suppressed.”

At issue is a prosecution that stemmed from Ganias’ work on behalf of a company that had been hired by the U.S. Army to provide security and maintenance services at a vacant facility in Stratford, Connecticut.

Based on a tip from a confidential source that the contractors had stolen copper wire and other equipment from the facility, in Nov. 2003 investigators from the Army obtained warrants to search several premises, including the offices that housed Ganias’ accounting firm.

There, pursuant to the warrant, the agents made identical copies of the hard drives of Ganias’ computers. Though the imaging also copied Ganias’ personal files—contained in programs such as QuickBooks and TurboTax—the agents assured Ganias they were looking only for materials that tied to the investigation. The following spring, after discovering suspicious payments by the contractor to a business owned by someone who had not reported any income from that business, the Army invited the IRS to join the investigation. Investigators from the Army gave the IRS copies of Ganias’ hard drives so that agents from the IRS could review the evidence.

By December, the agents from both the Army and IRS had extracted the files that tied to their investigation of the contractor. They knew the warrant did not authorize them to review other records retrieved from the hard drives. Still, they retained the files that had nothing to do with the investigation.

For its part, the IRS started to suspect that Ganias had failed to report the contractor’s income properly. In July 2005—about 20 months following the seizure of the hard drives—the IRS broadened its investigation to include possible tax fraud by Ganias. The agent in charge of the investigation did not review Ganias personal financial records, which she knew to be beyond the scope of the warrant.

The following February, the government asked Ganias and his attorney for permission to review Ganias’ personal files that had been copied from the hard drives. After Ganias did not respond, the IRS obtained a warrant to search the images of Ganias’ financial records seized in 2003. Because Ganias had revised the original files shortly after the Army copied the drives in 2003, the original records would not have existed absent the government’s retaining the images.

At trial, Ganias sought to suppress the computer files that became the subject of his appeal. Judge Alvin Thompson of the U.S. District Court in Hartford denied the motion, explaining:

“Here… where the searches and seizures were authorized by a magistrate judge, where government agents scrupulously avoided reviewing files that they were not entitled to review, and where the defendant had an alternative remedy pursuant to [a motion to return property] to avoid the complained of injury, i.e. that the government held his data for too long without returning or destroying it, the defendant has not shown that his Fourth Amendment rights were violated.”

On appeal, the court noted that the framers of the Constitution sought to end the practice of the British of searching the premises of opponents and seizing their papers, books and records indiscriminately pursuant to so-called general warrants. Consequently, the court noted, the Fourth Amendment requires that warrants will be available to the government only on a showing of probable cause and a description of the places to be searched and the items to be seized. According to Judge Denny Chin:

“These Fourth Amendment protections apply to modern computer files. Like 18th Century “papers,” computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted.”

The court observed that investigators who carry out a warrant may do so by making mirror images of the information stored on hard drives that the investigators can later review off-site. According to the court, the government must review the material within a reasonable period—there’s no one-size-fits-all rule—and that material is subject to exclusion from evidence when the government seizes items outside the scope of the warrant (a practice that starts to resemble a general warrant) and fails to act in good faith.

In the case of Ganias, the court concluded that the government had overstepped its authority. According to Chin, the government’s retaining Ganias’ records for two-and-a-half years interfered with his rights in those files.

“Without some independent basis for its retention of those documents in the interim, the government clearly violated Ganias’ Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation,” wrote Chin, who rejected the government’s contention that it obtained a second warrant to search Ganias’ files.

“If the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant,” he added.

The ruling, which vacated Ganias’ conviction, surfaces a tension between the reasonableness of a search—in this case the length of time the government retains records swept up in a search—and the need for the government to establish that it has not altered evidence in its custody. As the Harvard Law review noted in December:

“Although the court properly found that Ganias’ Fourth Amendment rights had been violated, the decision failed to appreciate the importance of authentication requirements for electronic evidence. As a result, Ganias may unnecessarily complicate prosecutions by potentially creating a perceived ‘right to deletion’—a prescription that federal prosecutors must delete files nonresponsive to a warrant sooner rather than later. The court could have avoided any potentially burdensome effects of this prescription on the evidentiary authentication process had it issued a more narrow ruling merely suppressing the evidence.”

The decision to reexamine the ruling also may tie to a question posed by Orin Kerr, a professor of criminal law and procedure at George Washington University who has commented on the case. “Is the real problem here that the government has over-seized and is taking unfair advantage of having extra stuff available to it, or is the real problem only that too much time has elapsed before the government is taking that advantage?” Kerr wrote in The Washington Post following Chin’s ruling.

Kerr suggests the same facts as Ganias except imagines the government developed probable cause for the second crime days after carrying out the first warrant. “Should that case come out differently?” he asks. “And if it could come out differently, is that because we intuit that the information for the second warrant likely is still… available on the original hard drive or because we think that the government’s seizure did not go on for so long as to become unreasonable?”

The first briefs are due by July 29.

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Law

NSA phone records case shows the power of standing

Like many things, legal arguments can have an elegance about them.

Look no further than the arguments advanced by the plaintiffs in the lawsuit that led a federal appeals court to rule last week that the government’s collection of information about the telephone calls of Americans violates the USA Patriot Act.

The decision, which was reported widely, marks the first time an appeals court has declared the surveillance program that the National Security Agency has used to harvest telephone numbers and other details of calls made or received in the US for at least the past nine years to be illegal.

Besides invalidating the bulk collection of so-called metadata, the decision reveals some terrific lawyering by the American Civil Liberties Union, which filed the lawsuit on June 11, 2013, six days after The Guardian, reporting on leaks by former government contractor Edward Snowden, published an order from the FBI to Verizon directing the company to hand over metadata for all calls on its network that either began or ended in the US.

Under the Constitution, federal courts only have the power to resolve actual disputes between real parties. Thus, to sue, a plaintiff must show a concrete personal stake in the outcome of the case, a requirement known as standing. It’s not enough to dislike a law. You have to show injury.

For its lawsuit, the ACLU needed a Verizon customer whose phone records had been collected by the government. A customer who might claim that the government’s collecting his or her phone records harmed the plaintiff in some way. For that, the ACLU looked no further than its own offices.

As the ACLU charged in court papers, the organization was itself a customer of Verizon, which provided the ACLU with landline, Internet and wireless services throughout the period covered by the order. The NSA’s harvesting of the ACLU’s metadata exceeded the government’s authority and constituted a seizure in violation of the Fourth Amendment, the group charged.

In court papers, the ACLU described its standing as follows:

The information collected includes plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact plaintiff for legal assistance or to report human-rights or civil liberties violations, as well as those whom plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact plaintiff.

In other words, the ACLU communicates with people about matters that are sensitive or privileged and who depend, as the group noted, “on their ability to keep even the facts of their discussions” with the ACLU confidential.

The trial court determined that the ACLU had standing to file the lawsuit.

On appeal, the government took issue with the ruling, charging that the ACLU had failed to demonstrate that the NSA had reviewed any of the metadata collected from the group. Thus, the government charged, the ACLU had failed to allege an injury sufficiently concrete to support standing.

The US Court of Appeals for the 2nd Circuit disagreed, noting that the ACLU had alleged injury from the very collection of metadata, regardless whether the government reviewed the information.

“Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them,” wrote US Circuit Judge Gerard Lynch for the majority. “Appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the [Foreign Intelligence Surveillance Court]; and the records have been collected.”

The appeals court observed that the government admitted that when it searches its database its computers search all of the information stored in it. That means the government searches the ACLU’s records, which are among the millions of records stored in the database, electronically.

Finally, the court noted that the ACLU also had standing to challenge a violation of its right to freedom of association guaranteed by the First Amendment. As the court observed, the government’s forcing a group that’s engaged in advocating for the civil liberties of its membership to disclose its members can itself violate the right to associate freely.

“When the government collects appellants’ metadata, appellants’ members interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point,” Lynch added.

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Law

Warrant that police did not know about no defense against false imprisonment claim, New York court rules

The police cannot rely on a warrant they did not know about to later provide a legal basis for an arrest, a New York State appeals court has ruled.

The appeal arose in connection with the arrest of Malvin Omar Urena, who was arrested without explanation nearly two years ago while standing with friends in the courtyard of his apartment building in the Bronx.

Police later charged Urena with interfering with a so-called buy-and-bust operation by shouting “Police, police, police.” He was detained for more than a day before the District Attorney’s office declined to prosecute, citing a lack of probable cause for his arrest.

Urena later sued the city for false arrest and imprisonment. A trial judge dismissed the claims, finding that a warrant issued in December 2011 for Urena’s arrest provided a basis for police to apprehend him.

Not so, says the court’s appellate division.

“Since the police were unaware of the warrant when they arrested plaintiff, the arrest cannot be found to have been based on the warrant,” wrote a panel headed by Associate Justice Angela Mazzarelli in a decision published Friday.

“Plaintiff correctly argues that the warrant that had been issued for his arrest in December 2011 does not render his May 2013 arrest ‘privileged’ so as to preclude his claims,” the panel added.

In general, the law permits police to arrest suspects without a warrant provided the police have probable cause. That means there’s a reasonable basis for finding that a crime has been committed.

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Law

Anonymous tips and the Fourth Amendment

How should courts treat anonymous tips in determining whether a legal basis exists to stop, arrest or search someone consistent with the Constitution?

That’s the question in a decision published Nov. 28 by New York’s Court of Appeals, which heard appeals from three men, all of whom were charged with crimes based on evidence obtained in part from calls to 911 by unidentified callers.

Consider the case of Dr. Eric Johnson, who pleaded guilty to several counts of driving while intoxicated following a breath test that showed Johnson had a blood-alcohol content nearly twice the legal limit. At trial, Johnson moved to exclude from evidence the results of the test and statements he made to the police after being pulled over on the night of October 1, 2011 while driving his blue BMW in upstate Ontario County.

Both the results of the test and his statements constituted the so-called fruits of an unlawful stop, Johnson contended.

Though the trial court admitted the evidence, the Court of Appeals agreed with Johnson that the call to 911 that led police to follow his car – the caller had reported seeing a blue BMW being operated by someone who appeared to be “sick or intoxicated” – lacked reliability sufficient to allow police to reasonably suspect criminal activity. According to the court:

The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated. Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction.

At issue is the Fourth Amendment to the Constitution, which protects against arbitrary arrests and unreasonable searches by the government. As Judge Jenny Rivera observed in an opinion that dissented in part from the majority’s ruling:

Anonymous tipsters differ from known police informants, whose identities are not secret and whom police may have prior experience as reliable sources of information about criminal activity…The case law illustrates a general concern about the use of information from informants, in particular anonymous tipsters, as a basis for police intrusions because of the ease with which anonymity facilitates false reporting.

To find a tip sufficiently reliable for a determination of probable cause, courts in New York State follow a two-part test taken from rulings by the US Supreme Court in Aguilar v. State of Texas, a 1964 decision, and Spinelli v. US, a decision the court issued five years later. Taken together, the so-called Aguilar-Spinelli test requires a judge to conclude that an informant is reliable and that the informant has a basis of knowledge for his or her tip.

Six states, including New York, follow the Aguilar-Spinelli test. The rest of the union applies an analysis adopted in 1983 by the US Supreme Court that simply examines all the facts to see if they add up to probable cause. That means in New York, information supplied to police by someone who calls 911 cannot provide the basis for a search or seizure unless the government can establish the reliability of the informant’s knowledge and show that the informant is generally credible.

Tips can be credible when they predict the future behavior or movements of a suspect, or when the informant has a history of providing police with tips that turn out to be reliable.

Anonymous tips also can give rise to reasonable suspicion, which is the lesser level of proof that police need to frisk someone or to stop a vehicle when an officer suspects that criminal activity may be present.

Though a stop can be less intrusive compared with a search or arrest, the Constitution still requires that police have a basis for interfering with someone’s liberty based on information supplied anonymously. As Judge Sheila Abdus-Saalam explained in a concurring opinion:

As is true of an arrest premised on uncorroborated anonymous hearsay, a stop based on an unreliable tip may unjustly expose an individual to a high degree of physical intrusion without any credible cause for suspicion. If such stop were permitted, police could freely abuse the people on authority of the most preposterous reports, and malicious tipsters could easily use incredible rumors to convince the police to physically harass the targets of the tipster’s ire.

While such suspicion also demands that a tip be reliable in its assertion of illegality, New York courts forsake the Aguilar-Spinelli test in favor of examining all the facts when deciding whether a tip is reliable enough to justify a police stop.

In its ruling, the court let stand the guilty pleas of John DiSalvo and Costandino Argyris, who, following their indictments on varied weapons-related charges, asked the trial judge to suppress the items recovered from their persons and automobile as the fruits of an unlawful seizure.

According to the men, a 911 caller’s failure to predict their actions rendered the informant’s tip too unreliable to justify the stop of a Mustang they were driving through Queens on July 19, 2007.

“I saw a black Mustang, brand new black Mustang with like four guys and I saw one of them put in a big gun in the back of the car,” the caller told the operator. The caller described the men as “big burly white guys” though he said he did not know what they where wearing.

When the operator interrupted the caller and asked whether he wanted to provide his name and telephone number, the caller replied, “No, I don’t really want to, I just saw something and I say something, like they say.”

A few minutes later, Sergeant Louis Bauso, on patrol in his car, saw a Mustang which bore the license plate number relayed by report from 911. Bauso got out of his car, pointed at the Mustang and yelled at it to pull over. The driver disregarded Bauso, who returned to his car and pursued the vehicle.

Around that time, Officer Kashim Valles, on patrol in his car, saw the Mustang drive toward him. Valles used his car to cut off the Mustang, called for backup, got out of his car and pointed his gun at the vehicle. Bauso, his partner and about six other officers arrived.

All of the officers trained their guns on the Mustang while Valles shouldered his weapon and directed the Mustang’s occupants to leave the car.

DiSalvo emerged from the passenger seat with what Valles observed to be a gun in his waistband. Valles ordered DiSalvo to put his hands on the car, while Valles handcuffed him, recovering the gun and some cash.

Valles then ordered the remaining occupants to step out of the vehicle one by one. Argyris emerged wearing a bulletproof vest. When Valles searched Argyris he recovered a metal club and a switchblade. During a search of the car, Valles found a loaded .380 caliber handgun and a box of .9 millimeter ammunition on the back seat.