Tag Archives: Federal Appeals Court

Stingray Surveillance Case Reaches Federal Appeals Court

The 7th Circuit federal appellate court will become the first federal appeals court to examine the Fourth Amendment issues related to cell phone surveillance tools known as cell-site simulators or stingrays. The 2013 case, known as United States v. Patrick, involves Milwaukee resident Damian Patrick, his arrest for a probation violation, and the likelihood that the police illegally used a stingray to locate him.

Truth In Media has written extensively about how these devices are being used to track suspected criminals while largely operating without oversight from local, state, or federal authorities. Exactly how the devices operate and what data they collect and/or save has been unknown because of a vast amount of secrecy surrounding the tools.

The Electronic Frontier Foundation describes the Stingray as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cellphone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”

On October 28, 2013, Damian Patrick was arrested while sitting in the passenger seat of a rented white Chevy Malibu in northern Milwaukee. A police report indicates that two Milwaukee Police Department (MPD) officers stopped the vehicle and ordered Damian Patrick and the driver to exit. The officers noticed a gun on the floor of Patrick’s seat and arrested him for an arrest warrant for probation violation.

Patrick was unaware he was being monitored by local police as well as the FBI. Since that time, questions have arose regarding how exactly the police knew Patrick’s location. Ars Technica writes: 

“How did the Milwaukee Police Department and the FBI magically descend upon Patrick’s location? The arrest reports are vague, making references only to an ‘unknown source’ and ‘prior knowledge.’ The report says, ‘We [police] obtained information‘ to the fact that Patrick, wanted on a felony probation violation, happened to be in that parking spot.

Less than a month later, Patrick faced one count in violation of federal gun laws. His lawyer filed a motion to suppress the ‘unlawful seizure’ on the grounds that nothing in the tip “was predictive”—the officers couldn’t have known that there was a reasonable suspicion to seize Patrick.”

Patrick caught a break in 2014 when one of the arresting officers, Phillip Ferguson, revealed that a “law enforcement officer” was “tracking” his phone. While court records indicate that the MPD asked the court for a pen register or trap and trace order for Patrick’s phone, it is likely that the MPD and/or the FBI used a stingray to grab the data out of the air.

The use of pen register or trap and trace orders with stingray technology has created a situation where many judges end up approving of technology that they do not quite understand. Law enforcement often seek approval of cell site simulators using outdated pen register, trap and trace orders without fully explaining to the judge the capabilities of the technology.

Patrick’s attorney, Chris Donovan, filed his opening brief in the appeal earlier this month asking the court to overturn the arrest based on violation of Patrick’s Fourth Amendment protections. Since the court did not have a warrant to use a cell site simulator “fruits of this illegal search must be ordered suppressed, specifically that the gun that was found laying at his feet when he was arrested,” Donovan wrote.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed an amicus brief in support of Damian Patrick. The ACLU and EFF also note that Wisconsin passed a 2014 state law which requires warrants for stingray technology.

The case is a prime example of the growing dangers of technology in the hands of government with little to no oversight. Despite promises that the tools would only be used in emergency situations, the surveillance devices are becoming increasingly normalized.

As EFF attorney Jennifer Lynch noted, “It looks like the police are using stingrays for pretty minor crimes— crimes that run the gamut.”

Appeals Court Rules to Protect Memos on Obama’s Targeted Killings

A federal appeals court has ruled that the Obama administration can continue to conceal memos related to the individuals on a list of “suspected terrorists” who are targeted and killed by the United States.

The document, which was unsealed on Monday after a decision was reached last month, was handed down by a three-judge panel of the U.S. 2nd Circuit Court of Appeals, in response to a Freedom of Information Act request to obtain the memos by the New York Times and the American Civil Liberties Union.

The panel consisted of Judges Jon O. Newman, José A. Cabranes and Rosemary S. Pooler. They unanimously ruled that the U.S. government has the right to classify approximately 10 documents detailing targeted killing operations against non-American citizens outside of the U.S.

“We emphasize at the outset that the lawfulness of drone strikes is not at issue,” Judge Newman wrote. “This appeal, like the prior one, primarily concerns whether documents considering such lawfulness must be disclosed.”

[RELATED: Game of Drones: Majority of Americans Support Strikes, While Uninformed]

Jameel Jaffer, a lawyer for the ACLU, told the New York Times the union strongly disagrees with the idea that “crucial legal memos can lawfully be kept secret.”

“In a democracy, there should be no room for ‘secret law,’ and the courts should not play a role in perpetuating it,” Jaffer said. “The government should not be using lethal force based on standards that are explained only vaguely and on facts that are never published or independently reviewed.”

[RELATED: Leaked Documents Reveal Details about Obama’s Drone Program, U.S. ‘Assassination Complex’]

In October, a series of leaked documents gave insight into the inner workings of Obama’s drone program in Afghanistan, Yemen and Somalia. The documents claimed that from January 2012 to February 2013, as a part of the campaign Operation Haymaker in Afghanistan, “U.S. special operations airstrikes killed more than 200 people,” but only “35 were the intended targets.”

The documents also noted that during a five-month period of the same operation, “nearly 90 percent of the people killed in airstrikes were not the intended targets.”

While a FOIA lawsuit forced the Obama administration to reveal a secret memo in 2014 that authorized the killing of U.S. citizen Anwar al-Awlaki in Yemen in 2011, the new ruling makes it unlikely that the lawsuit will produce additional information.

In 2012, Ben Swann was the first journalist to question President Obama on the constitutionality of a “Presidential kill list” including the names of U.S. citizens. Swann pointed out that the list, which had included Anwar al-Awlaki, resulted in U.S. citizens being targeted without the right to a fair trial.


Federal Court: Obamacare Contraceptive Mandate Violates Religious Freedom

A federal appeals court in St. Louis ruled on Thursday that the contraception coverage mandate required by the Affordable Care Act and paid for by a government subsidy, as well as the opt-out process for religiously affiliated employers, violates the employers’ religious freedom.

That coverage, which is paid for by a government subsidy, was struck down by the 8th Circuit Court of Appeals after four Christian nonprofits- Heartland Christian College, CNS International Ministries Inc, Dordt College and Cornerstone University- filed lawsuits against it, noting that they object to emergency contraceptives.

The court ruled that the employers should not have to include contraceptive coverage in their healthcare plans, and that forcing the employees to seek individual exemptions to the law, puts a “substantial burden” on their religious rights.

The Hill reported that the court’s ruling “includes 30 references to Burwell v. Hobby Lobby, the 2014 Supreme Court case that allowed certain for-profit companies to opt out of the mandate,” which led to several nonprofits filing lawsuits seeking the same permission.

[RELATED: Supreme Court Rules In Favor Of Hobby Lobby]

The current law states that employers must provide contraceptive coverage for their employees or they must pay a fine, and if they choose to go through the process of opting out of the requirement, the coverage has to be provided by the insurers.

The Associated Press reported that since Obamacare was signed into law in 2010, “roughly 100 lawsuits from businesses and religiously affiliated colleges, hospitals and other not-for-profit organizations” have been filed, challenging the contraceptives requirement.

[RELATED: Obamacare Subsidies Upheld By Supreme Court]

In response to the ruling, a spokeswoman for the White House said that the Obama administration is “disappointed” and claimed that “as all of the other seven courts of appeals to address this issue have held,” the current process “strikes the proper balance between ensuring women have equal access to health care and protecting religious beliefs.”

Reuters noted that this court’s decision differs from all other appeals courts that have considered the issue, which makes it more likely that the Supreme Court will issue a ruling at some point in its coming term, between October and June.

DoJ Asks Surveillance Court To Ignore Federal Court’s Ruling On Illegal NSA Spying

Hours after President Obama signed the USA Freedom Act, which would continue the National Security Agency’s mass surveillance program, while transferring its bulk data collection to private phone companies, the Department of Justice filed a request asking a FISA court to continue the NSA’s collection for six months.

The request, which was filed with the Foreign Intelligence Surveillance Court on June 2, asked the Court to “approve the Government’s application for the bulk production of call detail records for a 180 day transition period,” claiming that this request is appropriate, despite the fact that on May 7, a federal appeals court ruled that NSA spying is illegal.

In the request, which was written by Justice Department national security chief John Carlin, the USA Freedom Act’s six-month “orderly transition” clause is referenced, but Carlin does not address whether the clause still applies now that the program was supposed to have shut down completely at midnight on May 31.

The NSA’s mass surveillance program, which was allowed under Section 215 of the Patriot Act, became illegal at 12:01 a.m. on June 1, when the section expired. GOP Presidential candidate and Sen. Rand Paul (R-Ky.) led the campaign to block a direct extension of Section 215, and took to the floor of the Senate for 10 hours and 30 minutes to speak out against NSA spying.

The Guardian noted that Carlin also suggests that the Obama Administration “may not necessarily comply with any potential court order demanding that the collection stop,” and might “seek to challenge the injunction.”

“In the event an injunction of some sort were to issue by the district court,the Government would need to assess, in light of the nature and scope of whatever injunction the district court issued, its ability to carry out authority granted under an order issued by this Court,” Carlin wrote.

A report from the Washington Post in Jan. 2014  found that after analyzing 225 terrorism cases inside the United States, the NSA’s bulk collection of phone records “has had no discernible impact on preventing acts of terrorism.” 

In the request, Carlin claimed that although the DoJ has considered the Federal court’s ruling on NSA spying in its evaluation of the government’s application, “Second Circuit rulings do not constitute controlling precedent for this Court,” and they are requesting that the NSA’s bulk data collection program continue, even though the majority of the data collected “ultimately will not be terrorist-related.”