Tag Archives: warrantless searches

Civil Liberties, Edward Snowden, Featured, Politics, Privacy, States Rights, US

Five Years After Snowden, Michigan Set to Be First State to Impede NSA’s Warrantless Surveillance

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On the heels of the fifth anniversary of whistleblower Edward Snowden’s disclosure of classified National Security Agency (NSA) documents to journalists, one state legislature has recently taken steps to hold the government agency accountable for its warrantless surveillance programs by making it illegal for state and local governments, including law enforcement and public utilities, to support the NSA’s warrantless spying on American citizens.

According to Michigan’s Fourth Amendment Rights Protection Act, also known as Public Act 71 of 2018, state and local governments can only assist or provide support to the federal government’s collection of data if there is a search warrant or the informed consent of the targeted party. The bill is set to take effect in just a few weeks on June 17th.

While the NSA has no publicly disclosed facility in the state, the bill’s proponents have asserted that it sends a clear message to the federal government regarding the lack of popularity for its warrantless wiretapping of millions of Americans in violation of the legal protections granted to them by the Constitution.

“It hangs up a sign on Michigan’s door saying, ‘No violation of the Fourth Amendment, look elsewhere’,” said Republican state Rep. Martin Howrylak, the bill’s author, according to the Washington Examiner. “Democrats as well as Republicans would certainly stand very strong in our position on what this law means.”

“This new law guarantees no state resources will be used to help the federal government execute mass warrantless surveillance programs that violate the Fourth Amendment protections enshrined in the U.S. Constitution,” Howrylak said soon after the bill was first passed earlier this year in March.

“Michigan will not assist the federal government with any data collection unless it is consistent with the constitution,” he added.

The Michigan law seeking to condemn the NSA’s most controversial program is not the first of its kind. However, it is the first to have been passed successfully without having been  subsequently watered down. For instance, in 2014, state lawmakers in Maryland sought to shut off power and water to NSA headquarters but many of its sponsors dropped their support of the bill after a powerful political backlash. A similar bill was floated in Utah’s state legislature at the same time, but went nowhere after it was rejected by the state’s governor.

“It hangs up a sign on Michigan’s door saying, ‘No violation of the Fourth Amendment, look elsewhere.'”

The only state to have passed a bill similar to Michigan’s is California, which passed the Fourth Amendment Protection Act in 2014. However, that piece of legislation protects the Fourth Amendment in name only as it bans local assistance “in response to a request from a federal agency” and “if the state has actual knowledge that the request constitutes an illegal or unconstitutional collection.”

Despite the efforts being made by state legislatures to restore the Fourth Amendment, such efforts have been largely absent at the national level in recent years. Earlier this year, in January, Congress voted to extend the government’s warrantless surveillance of American citizens for another six years. However, Congress’ reauthorization of the program was more than a mere extension of the program as it actually helped expand the NSA’s authority by codifying some of the more controversial aspects of the program, suggesting that interest in protecting and restoring the Constitution is largely found at the state and local levels of government.

Civil Liberties, Featured, Technology

Report: FBI Paid Geek Squad Employees to Spy on Customers

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After court documents in the 2017 prosecution of a California child pornography case revealed that a Kentucky Geek Squad employee had been used as an informant to obtain evidence, the Electronic Frontier Foundation filed a Freedom of Information Act lawsuit to seek further information on the level of institutional cooperation between the FBI and Best Buy’s Geek Squad computer repair service.

According to OC Weekly, during a routine repair job a Geek Squad tech reportedly found a questionable image in the trash space on a California defendant’s computer using forensic tools, reported it to the FBI, and received a $500 payment for the tip. Files found in the trash space of a computer are often irretrievable without professional tools and can exist on someone’s computer due to a malware attack without the computer user’s knowledge.

Electronic Frontier Foundation’s lawsuit discovered that the FBI had paid other Geek Squad employees the $500 fee for informant services. Best Buy admitted to EFF that four employees have received the payouts.

The lawsuit also revealed a memo noting that the FBI conducted a 2008 Cyber Working Group meeting at the Geek Squad’s Brooks, Ky. location, described as the company’s primary repair hub “east of the Rocky Mountains,” demonstrating that cooperation between the FBI and the Geek Squad goes back at least a decade.

The memo noted that the FBI’s Louisville Division “has maintained close liaison with the Geek Squad’s management in an effort to glean case initiations and to support the division’s Computer Intrusion and Cyber Crime programs.”

EFF’s Aaron Mackey, who expressed worries that the stings could violate customer’s 4th Amendment privacy protections, said, “Other documents show that over the years of working with Geek Squad employees, FBI agents developed a process for investigating and prosecuting people who sent their devices to the Geek Squad for repairs. The documents detail a series of FBI investigations in which a Geek Squad employee would call the FBI’s Louisville field office after finding what they believed was child pornography.”

He continued, “The FBI agent would show up, review the images or video and determine whether they believe they are illegal content. After that, they would seize the hard drive or computer and send it to another FBI field office near where the owner of the device lived. Agents at that local FBI office would then investigate further, and in some cases try to obtain a warrant to search the device.”

According to ZDNet, Best Buy said in a statement that it does not instruct employees to search for child pornography and other illegal content, but that if it is discovered accidentally the company’s policy is to report to authorities, citing a “moral and, in more than 20 states, a legal” obligation to do so. Best Buy claims its employees are not allowed to go out of their way to search for this data, though the data collected in the 2017 California child pornography case that led to these revelations appears to contradict that policy by having been conducted with forensic software meant to analyze trash space.

“We have learned that four employees may have received payment after turning over alleged child pornography to the FBI. Any decision to accept payment was in very poor judgement and inconsistent with our training and policies. Three of these employees are no longer with the company and the fourth has been reprimanded and reassigned,” Best Buy’s statement added.

The EFF says that because the FBI paid these Geek Squad employees to search for information on individuals who have not been accused of a crime, they were effectively conducting warrantless searches on behalf of the government, “and thus any evidence obtained as a result of the illegal searches should be thrown out of court.”

Featured, Politics, US

Supreme Court Ruling: Police Cannot Search Cell Phones Without A Warrant

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In a colossal decision favoring digital privacy, the Supreme Court unanimously ruled 9-0 Wednesday that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested” due to the immense amount of private information now commonly contained on cell phones.

In a ruling over two separate cases in California and Massachusetts, the Supreme Court ruled in favor of privacy rights over the necessity of investigating crime. Defendants David Riley of California and Brima Wurie of Massachusetts sought to overturn their convictions due to the fact that their convictions had stemmed from their phones being searched without a warrant. The Supreme Court ruled that both searches were unconstitutional.

While police are still allowed to examine a phone to specifically ensure it is not a weapon, the ruling states “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”

“Modern cellphones are not just another technological convenience,” said Chief Justice John G. Roberts Jr. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

ACLU national legal director Steven R. Shapiro responded to the ruling: “By recognizing that the digital revolution has transformed our expectations of privacy, today’s decision is itself revolutionary and will help to protect the privacy rights of all Americans. We have entered a new world but, as the court today recognized, our old values still apply and limit the government’s ability to rummage through the intimate details of our private lives.” 

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Featured, Politics, US

Supreme Court Authorizes Warrantless Stops & Searches Based on Anonymous Tips

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Washington, D.C., April 24, 2014- On Tuesday the U.S. Supreme Court issued a ruling that allows police to stop and search a driver based exclusively on an anonymous tip.

In a 5-4 split decision, the court ruled that the reliance on an anonymous call is reasonable due to the fact that “a 911 call has some features that allow for identifying and tracking callers.” The justices atypically didn’t split along standard ideological lines as two of the most conservative justices, Justice Clarence Thomas and Justice Antonin Scalia, respectively wrote the majority opinion and dissent.

The Supreme Court has previously given the police the authority to act on anonymous tips, but requires sufficient detail so that law enforcement has a basis of reasonable suspicion of criminal activity.

 Justice Scalia decried this ruling as “A freedom-destroying cocktail.”

In the case, Prado Navarette v. California, an anonymous tip of reckless driving was called in to 911. Officers responded but didn’t see any evidence of the alleged reckless driving, which was interpreted as implying drunken driving, after following the truck for a number of miles. The subsequent stop and search resulted in officers finding marijuana.

Justice Thomas claimed in the majority opinion that the 911 tip, that a pickup truck ran the caller off the road, was reliable enough for a traffic stop to be allowed without violating the constitutional rights of the driver.

In Justice Scalia’s scathing dissent he asserts:

“The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.”

He goes on to state that:

“Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers’, of a people secure from unreasonable searches and seizures.”

Justice Scalia was joined in his dissent by Justice Ruth Bader Ginsburg, Justice Elana Kagan, and Justice Sonia Sotomayor.

Here are a few of the other key points from the dissent:

“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

“All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences even if 911 knows his identity.”

The implications of this ruling will most likely be far reaching. With the current ruling in effect, someone with a vendetta can simply make an anonymous call to 911 and that will be sufficient to pull a person over and search. This ruling is a serious blow to liberty and what was left of the 4th Amendment.

 

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