Porn in the Closet: A Tribute to CPSC 183 – by “Jennifer S – YLT2012”

Say you wake up in the morning, after a hard night of partying, surrounded by empty bottles, your hungover girlfriend, and your laptop—with windows open to kiddie porn. How the hell did that get there? What the hell is wrong with you? And what legal conundrum will you find yourself in should the police discover your hoards of mysteriously downloaded child pornography? And if, by chance, you like making fannish vids of The Land Before Time set to Prince music, can you legally claim fair use? Yes.

This is the situation that our hero faces in our magnum opus, “Porn in the Closet,” a musical tribute to the great lyrical prodigy R. Kelly. Check out the original R. Kelly song here. “Porn in the Closet” is a scandalous synthesis of modern legal code and case law governing the legality of internet activity, privacy, and free speech in the United States today.

Allow us to explain the twisted tale of our “Porn in the Closet” protagonist. Poor P. Kelly (the “P” of course stands for “Porn”) wakes up to discover child pornography–for decency’s sake, here represented by Sesame Street characters with censored chests. Police officers who thermo-scanned the house, thinking P.Kelly had a marijuana growing operation, enter P. Kelly’s place with a warrant. Their warrant was unlawfully obtained, however, according to the 2001 Supreme Court Ruling in Kyllo v. United States, which found that thermo-scanning violates the Fourth Amendment’s protection against unlawful search and seizure. P. Kelly lets the officers in, and they discover the laptop full of kiddie porn hidden in the closet. The laptop was given away by the sound of a Skype call, which we may legally use in our video because this is created for educational purposes and is therefore not a copyright violation, but rather fair use!

While the officers, P. Kelly, and his girlfriend Polly ponder what do about the kiddie porn situation, two DMCA (Digital Millenium Copyright Act) Agents walk in. While DMCA agents typically issue take-down requests online, the artist formerly known as the Artist Formerly Known as Prince is particularly vengeful with protecting his music online. P. Kelly had created fannish vids, splicing footage from The Land Before Time movies with Prince songs. Thankfully, Judge Pierre Leval is on hand to clear up any confusion about transformative work and fair use. Judge Leval is in midget form, an homage to Chapter 9 of the original “Trapped in the Closet.” Our song is, of course, a parody and therefore fair use. Fannish vids are also, in fact, fair use, according to Section 107 of Title 17 of the U.S. Code.

Another knock comes on the door. P. Kelly questions what else he could have possibly done… Did they eat Roger Whitmore, the cannibalized cave explorer in The Speluncean Explorers? Did they hack into SendMail and create a virus, like the worm that wrought havoc in 1990, created by bored college student Robert Tappan Morris? No, we will never know what other internet crimes or gaffes P. Kelly has committed, because our favorite deus ex machina saves the day. Brad Rosen, in all of his glory, brings our tale to a close.
Follow along with our lyrics:
Seven o’clock in the morning
And the rays from the sun wakes me
I’m stretchin’ and yawnin’
My laptop is there right beside me
And I hear her retching from the bathroom
Then along comes Polly, she kisses me
And unsurprisingly she’s hungover, skank.

Now I’ve got this dumb look on my face
Like, what have we done?
How could I be so stupid to have downloaded all this kiddie porn?
Must have blacked out last night
Oh, what was on my mind?
Met on 4chan, took her home
Didn’t plan to sing this song
Knock on the door hearin, “Police, open up!”
My girlfag looks at me
Tells me to delete the kiddie porn
Keep trying to close windows
“Kiddie porn move out my way”
Police said “We have a warrant”
“Open up sometime today!”
“Shit think, shit think,  shit quick: put it in the closet.”

“Smelled weed last night,
Got a warrant to search your place.
Thermo-scanned your house,
Think you have a growing space.”
“Grow weed? What, we don’t do that.
That was just my tanning bed.”

You’re not gonna believe it, but things get deeper as the story goes on
Next thing you know they hear my laptop with the kiddie porn

“This is child pornography
We’re going to have to take you in”
“Whoa, this isn’t our kiddie porn
Someone else must have put that there.
We’re not into that
We only watch porn between legally-consenting, and unionized disease-free adults”

I’m telling you now, I wish this was the worst part of my day
But then another knock
In walks an agent of the DMCA
We’re by the closet, like man, what the fuck is happenin’?
“We have a takedown request”
From the artist formerly known as Prince
Is this about my fannish vids?  Those were transformative
Land Before Time needed a bit of Prince
Fair use from section 107 of Title 17 of the US Code
A midget said, “Vidding is fair use.”
“Oh I didn’t watch it”
And I’m like, “God it’s Judge Pierre Leval from the second circuit!”

“Why is he a midget?”
“We needed a midget.”
She says, “Baby, we’re in deep shit.”
Another knock on the door.
We stop, all look at each other
Like, Who the hell is that
We say, “What else did we do?”
We need a jailbreak IRL
Did we eat Roger Whitmore?
Did we hack into mail?
The knocking gets louder
I pull out my Baretta
They pull out their Tasers
Said “Don’t tase me bro!”
Midget opens the door
I can’t believe it’s Brad Rosen…

Lolkatz – by “David C – YLT2012”

I had heard some people talking about some Facebook “chain-letter” type status that was going around, but it took a few more weeks before I saw this on my news feed one morning.

Is this real life?

This post made me feel a lot of things- anger, despair, and a deep sadness for my friend’s lack of understanding of how the world works. I could have just told him how wrong he was, but I applied the Munroe test and decided against it.

This type of posting reveals a sort of paradox in our culture today. Brad always says that in the future, everyone will have 15 minutes of privacy, as the evolution of this quote. The introduction of the Internet and social media sites like Facebook and Twitter make it easier to publish everything. And when I say everything, I mean everything.

Srsly

TMI

So in a world where we are dishing our lives on Facebook and Twitter, from vague statements to admitting to crimes, can we really expect any privacy? Apparently my friend thinks he does.

This expectation might have a few bones to pick with Facebook’s Terms and Agreements, but I think that there’s an interesting question being put forth. Facebook is not necessarily the best option for privacy, but there are alternatives (even to Google now!) that offer a little more privacy. In the future, one of these types of sites may be more appealing/ dominant in the social media world (please?) and it might be more reasonable to expect privacy. This could be a way to protect people under the test formed from Katz v. United States, where Katz made a private telephone call in a phone booth (back in 1964) and was recorded by a bug placed on the ceiling of said booth. Naturally he sued, since it was an unwarranted search, as Katz should be able to expect privacy when entering a glass booth that blocks people from hearing him.

Based on a true story
The movie interpretation of Katz v. US

As such, we now have a test, where if the person expected privacy (subjectively) and society accepts this expectation (objectively), then any search in that situation would need a warrant. So in theory, if there was a massive shift in thinking in our society, we could make the Internet a place where we expect privacy and it illegal for the government to access my sexy Spring Break photos.

Obviously there are some problems with this idea. The terms and agreements of these sites not being conducive to privacy, and therefore allow things like our e-mail to be open to search. However there is the bigger issue of the Internet being an open space where people can post and host content that is available everywhere. We have to start putting up walls before we can begin to expect privacy online. Whether that’s closed groups and message boards (with a host willing to give you privacy) or some other method, it seems as though if this type of Internet becomes popularized, we can finally expect privacy online.

Except not really.

 

So even if we construct these walls, it seems as though California v. Ciraolo sets some weird precedents. There are ways to get around walls (or in this case, fences) that might not be obvious to us at first glance but are pretty innocuous and won’t usually invade on our privacy (like a freaking airplane passenger) but, in my opinion, we manipulated to create an unlawful search. While I don’t have an immediate example, it seems as though this could be brought up as a precedent to protect some roundabout way to illegally search citizens on the Internet.

"Hey, does that look like weed to you?"

So where does that leave us? Katz’s law allows society to change and come to accept different norms of what is supposed to be private. That is why the test is so powerful and useful. At the same time, we have very strange precedents on what is a legal search that still have to be tested in the cyber arena. Even though the Internet isn’t a private place now, but there is the potential and this issue of privacy is still being worked out and has yet to come to a head. But when it does, I think that both Katz’s rule and the Ciraolo ruling will be very important to remember.

4th Amendment v 2.0 – by “Nimisha G – YLT2012”

The Fourth Amendment in all its glory

The fourth amendment guarantees our right to be free from “unreasonable searches and seizures”  in our “houses, papers, and effects.” Basically, if we have a general right of privacy in a particular space, we are entitled to protection under the fourth amendment. So the police can’t just barge in on me dancing in the comfort of my home without a warrant. Thank goodness for that.

Fortunately, the fourth amendment has been around for a while, so courts have been able to iron out a lot of the nitty gritty. In Katz v U.S. (1967), the court defined a search as having occurred if someone has an expectation of privacy regarding the thing being searched and if it is found that that expectation of privacy is reasonable. Now what in the world does reasonable mean? In Katz, federal agents recorded a conversation of Charles Katz making illegal gambling wagers from a telephone booth. The court ruled that Katz had a reasonable expectation of privacy in the telephone booth since he closed the door of the telephone booth. By closing the door, Katz made clear his expectation of privacy; thus even when the recording devices the federal agents used were attached to the outside of the booth, the agents infringed upon Katz’s fourth amendment rights.

Reasonable Expectation of Privacy in the Digital World

Of course, the definition for what is considered a “reasonable expectation of privacy” is changing and depends largely on the circumstances. In Katz, Katz’s expectation of privacy in the telephone booth was reasonable given the physical boundaries Katz set by closing the door. But in the digital world, it is much more difficult to close the door.

Behind the closed door

Fortunately, we have a reasonable expectation of privacy on our computers, cell phones, and other digital devices. For example, as described in this recently published article on Arstechnica.com, police seizure of text messages on a cell phone was unconstitutional since the police infringed upon the cell phone owner’s expectation of privacy by conducting a warrantless search. As the court in State v. Smith (2009) ruled, we are actually entitled to a higher expectation of privacy with cell phones than closed containers or address books due to cell phones’ “ability to store large amounts of private data.” Courts are thus attempting to measure reasonable expectation of privacy on digital devices by comparing them to their physical analogs.

But as we begin to be able to store more and more information in tinier spaces, even searches of limited parts of a particular device have higher probabilities of invading our privacy. Content that might not have been included in a search is, in essence, easier to, unintentionally, ‘discover.’

Luckily, courts have already touched upon this issue. In U.S. v. Walsher (2001), the court found that “[b]ecause computes can hold so much information touching on many different areas of a person’s life, there is greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” So since computers and cell phones, as well as other devices, are able to hold so much information it is more difficult to search them without invading privacy, even with warrants.

But courts have yet to strike a balance between reasonable expectation of privacy in digital devices and the rights to search and seizure granted to law enforcement through warrants.

Third Party Doctrine

Okay, so we have a reasonable expectation of privacy with physical devices. Woohoo!

The same must apply to whatever we have online, like our emails, facebook conversations, etc. right?

Wrong.

....but it must be done!

According to the third party doctrine, also known as the Stored Communications Act we lose our expectation of privacy as soon as we share something with a third party. This includes Gmail, Facebook, Yahoo, and other online service provides. These companies, by law, can turn over your information to the government. Granted, the government can’t go on a fishing expedition in your email account without due reason but can ask to have access to something more specific, like a particular email.

And the same applies to facebook.

the death of online privacy

By exchanging information over the internet, you are essentially making the choice that you have lost your ‘reasonable expectation of privacy,’ as far as the government is concerned. (So private companies cannot get your information from internet service providers the same way that the government can)

So basically, the internet is essentially a public forum with regards to your fourth amendment rights.

We could all learn a thing or two from them

The Future of the 4th Amendment

So as we grow more dependent on technology to store our personal information, the definition for a person’s reasonable expectation for privacy is more and more up in the air. The law hasn’t fully adapted to technological trends, but when it does, will we see the emergence of a 4th amendment for the digital age?

But hopefully not.

 

 

Wake up Sheeple! – by “Bay G”

 

Last June, Alex Kozinski (chief judge of the 9th district court) wrote this blog piece lamenting the death of the Fourth Amendment.  It was critical, yes.  A public warning?  Surely.   That said, the Fourth Amendment is not actually dead, yet.  But true to Kozinski’s argument, it is dying – a long and drawn out death by spoon technology.

As any fifth grader may recite, the fourth amendment assures that: “the right of the people […] against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause […]”.   So where does technology come into the picture?  Technology has transformed the practicality and scope of “search and seizure” for law enforcement, all the while weakening the citizenry’s defense of what is “unreasonable”.  This one-two punch has effectively overhauled much of what Americans used to believe about privacy.  We will first look at some new ways technology is helping the government “search”, as well as (more interestingly) the new ways technology is undermining one’s defense for a “reasonable expectation of privacy”.  Then I offer some defensive technology to help you fight fire with fire!

this guy is fighting fire with fire

Perhaps the most infamous new weapon in the government’s privacy arsenal are the backscatter x-ray full-body-scanners.  These machines, which have been deployed to several airports around the US, produce high quality “naked” photos of a subject.  Although the face and genitals are always blurred, advocacy groups like the ACLU have unsurprisingly risen up against this new practice as unreasonable and invasive.   In a testament to modern citizen complacency, a Washington Post article from last November reported that only 32% of surveyed travelers verbally opposed the scanners, and even fewer went so far as to ‘opt-out’.  To be fair, I myself I consented to such a scan without much of a second thought last winter break.

an example of the x-ray back-scatter full body scanning technique

For further example, in 2007, the Bush Administration took the first steps towards allowing satellite surveillance to be used domestically. This military technology, with its ability to see high resolution through clouds and even buildings , is perhaps even more invasive than the “virtual strip searches” described above.  The decision was reversed, in 2009, when strong protest by the ACLU resulted in the closure of the program.  Nevertheless, the technology exists and history shows that the government is all to willing to use it.

As a final example, consider GPS tracking.  Previously the stuff of Bond and Batman, ever since 2010 these trackers can be applied to private vehicles on private property – often without a warrant.   It is worth noting that this ruling only holds precedent in the 9th (which is Kozinski’s own) circuit.  This issue burst into the public spotlight in October of last year, when a twenty year old Arab-American student in California discovered a tracker on his car.  Yasir Afifi took photos of the device and posted to the popular Reddit social news site where his post rose quickly to the front page.  According to Wired magazine, the FBI followed up with Yasir Afifi within days to recover their “highly expensive” piece of equipment, but they offered little explanation.

 

Taken as a sample, these three technologies work well to highlight the growing power of big brother’s all-seeing eye. That said, what is ultimately more dangerous is technology’s ability to render us complacent and legally defenseless – which is really the core of Kozinski’s article.

It comes down to the Third Party Rule in fourth amendment considerations.  That is, we only have a reasonable expectation to privacy over things we haven’t revealed to other people or in public. Well that doesn’t seem to be a problem; I mean, we’re not walking around broadcasting our lives to the public are we?  SPOILER ALERT: yes, yes we are.  Far beyond the easy examples of posting photos to Facebook, Twitter, or Instagram (bieber shout out!), consumers are sharing their personal information and implicitly voiding their rights to privacy every day through mundane, innocuous tasks.

via: http://www.telegraph.co.uk/technology/google/4513282/Google-launches-Latitude-tool-to-help-you-track-friends-and-family.html

Take for example, supermarket loyalty programs – the enemy of choice for Kozinski’s article.  They seem innocent enough: sign a quick form, and get 40c off that planters unsalted six pack of heart-healthy peanuts.  I speak from experience, it’s an easy sell.  The problem, constitutionally speaking, is that I have now granted access of my purchase history to a third party, I can no longer reasonably expect that to be private.  The government knows this, and uses it.  And loyalty programs are just the beginning.  Fast-trac cards for toll-booths keep electronic record of your whereabouts.  Amazon, Zappos, and GoodGuyGuns.com have databases with your order histories.  Heck, Google Latitude and the new iOS 5 let you ‘share’ your realtime, granular location 24 hours a day!  As we give up more and more control of our information for increasing convenience of service, we further limit our own “reasonable expectation of privacy.”

Many of these services have limited contracts, detailing certain controls over who can access your information and under what circumstances.  But the majority of these contracts are unapproachable to the average consumer, and yet to be critically examined in court.  At the end of the day, you are still sharing private information with a third party entity.  Benjamin Franklin once famously said that “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”  I wonder what he would have to say about giving up liberty for not security, but convenience, and the chance to get 15% off your next purchase of Keebler Chips Deluxe.

They just came out of the trees, man. They came out of the trees...

Now, as so often is the case, the hope of humanity falls on Oregon.  Ron Wyden, the democratic senator responsible for blocking the COICA bill we studied last week, has proposed new legislation regulating the exact contexts under which law enforcement may track your phone (and you) with GPS technology.

But even with new protective legislation, all the fourth amendment writing in the book can’t hold much against the “Border Search Exception”, as described in US vs. Arnold.  As of early 2008, customs and border patrol agents need neither warrant nor probably cause to search travelers and their belongings at the crossing.  While there was a temporary extension to limit the search of electronics, this has since been over ruled. Effectively, when entering the country your laptop is fair game for prying eyes.

 

THREAT LEVEL MIDNIGHT

So how do you protect yourself?

CargoCollective.com/4thamendment offers boxer briefs with the fourth amendment printed in metallic ink! Take that, TSA

 

Sites like FlexYourRights.org do an excellent job instructing citizens on their fourth amendment rights, and how to protect themselves in instances like a routine traffic stop.  But what about when you’re crossing the border?  How do you protect your privacy when the government has legal access to search you, your belongings, and your data? I offer this quick introduction into protecting your privacy online and on the road:

q
obligatory hacking picture!

1)  Encrypt your data.  Having a password is not enough – a well versed teenager can bypass Windows and OSX account security in minutes.  Instead try PGP Desktop or True-Crypt (http://www.truecrypt.org). On my mac, I use Disk-Utility to make small encrypted images on my machine to store personal data.

2)  Clear your browser cache and history, and securely wipe your deleted files. [windows] [mac].

3)  Choose a strong password (yes, they are bypass-able, but a good first line of defense.)  And shut down your computer before reaching customs.  This way the RAM (temporary memory which may be holding your password unencrypted) has time to ‘clear’.

4) Consider a cloud encryption service like Google Docs, DropBox, or Carbonite, and upload all sensitive data to download later once you have crossed the border.

5)  If you must keep your data on hand, further consider making a hidden encrypted partition on the drive, or otherwise storing the files on a small microSD card.

6)  Finally, when you get to your destination, you may want to completely wipe your device if you did not retain control of it for the entire transition.  Even the most basic of trojans can resist detection these days!

Less relevant to border crossings, but good practices to stay safe (and private) online:

1) Only use HTTPS (as oppose to HTTP) when accessing any site to which you log in.  (bank, facebook, gmail… even iGoogle).

2) Avoid accessing your personal accounts or using your unprotected device on unencrypted or public networks

3) Limit the data Google, Facebook, Amazon, etc can collect about you.

4) Don’t let services like Twitter, Facebook, Instagram, and iPhoto record the geo-locations of your photos and travels.

5) Tightly manage your online publishing

 

In short: our increasing complacency as citizens to divulge personal details to third parties is weakening our defense of privacy.  At the end of the day, the fourth ammendment needs YOU as much as you need the fourth amendment.

More Technology = Less 4th Amendment – by “Zach T”

I am confident that most people would agree the framers of the constitution had no idea as to what types of technological innovations were in store for the United States’ future. Consequently, they probably did not know the degree of resilience the constitution would need in order to endure and address the inconceivable degree of technology innovation that has constantly (and unavoidably) forced continuous amendments of individual rights. While this can be applied to basically every aspect of the law, it is especially germane to the adaptation of the 4th amendment and the evolution of the right to privacy.

According to the 4th amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,…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.” It is clear that the 4th amendment exists to guarantee and protect the privacy of Americans to the fullest extent possible. BUT, this guaranteed protection is limited and bound by the continually changing interpretations of what constitutes an “unreasonable search.” This phrase was never well defined, and its definition has become even more distorted by the growing variables created by technological advances.

Essentially, the central factor in a court’s determination of a search’s “reasonable-ness” is whether an individual demonstrated a “reasonable expectation of privacy.” How might one demonstrate this expectation, you ask? Well there is a seemingly simple answer to that question, but it has been convoluted with what is/is not deemed private in today’s world of technology and communication. Unless you can prove that you had a legitimate expectation that the evidence obtained would not be available to the public and that you took measures to ensure its privacy, then you do not have protection under the 4th Amendment. Any behavior or communication that could possibly (or knowingly) be exposed to public view is fair game to “search and seize”. This is where the overwhelming nature of technology spoils all the fun! (that is, if “fun” = a definite expectation of privacy).

There has been a discernable and, depending on your priorities, alarming trend defining the relationship between technology and privacy by the rights guaranteed by the 4th amendment. The trend: as technology expands…privacy protection /4th Amendment rights diminish. To prove this is not just a blanket statement, I will go through some examples that prove this assertion.

Wiretapping

This was one of the earliest examples of U.S. authorities exploiting newly developed technologies to obtain private information by means of intruding 4th Amendment protection. Wiretapping was first operationalized in 1870, and it was not until Katz v. United States (90 years later) that the U.S. effectively restricted this new form of “searching” – a method made possible by the technology innovation of that time period.

Among other precedents set by the infamous and standard-setting Katz v. United States, this case established the unprecedented doctrine that the 4th Amendment must exist to “protect people, not places.”

Publicly Private

With new technology and its inherent ubiquity, the scope of the 4th Amendment could no longer be property-centric. Bare with me here, but the Katz ruling enabled citizens’ to be “publicly private.” Katz’z phone booth conversation was visible to the public, but the conversation itself was private. Up until this point, the government did not need to address this aspect of the “in public” model, and it is even more prevalent today with the ability to access computers, cell phones, etc. from essentially anywhere. By the very nature of establishing that physical intrusion is not required to constitute a search, this ruling has since applied to every 4th Amendment matter involving the investigation of private sources of technology.

GPS Tracking

 

As evidenced in a recent Wall Street Journal article, “Courts have consistently ruled that the use of a GPS device to track people outside their home is not a “search” under the Fourth Amendment.” This goes back to the notion that if an individual takes part in something “in public” then they cannot claim to have had a reasonable expectation of privacy, and are thus unprotected from an unwarranted search. GPS, like the telephonic innovation that preempted wiretapping, is another technological breakthrough that has proven to impair the strength of the 4th Amendment in privatizing individual activities.

Aerial Observation

 

Just some innocent observation...

In 1986, the Supreme Court ruled in California v. Ciraolo that a warrantless aerial observation of a person’s backyard did not violate the 4th amendment. Again, more innovation, less privacy.

Concealed Radio Transmitters

In 1971, the Supreme Court ruled in United States v. White that using concealed radio transmitters worn by undercover informants does not violate the 4th Amendment protection against unreasonable searches and seizures, and therefore does NOT require a search warrant. The Supreme Court held that a defendant’s expectation that another individual with whom he is talking will not reveal incriminating information to the police is by no means protected under the constitution. Realistically, what would stop another individual from going to the police even if he is not an undercover agent?

Border Search Exception

It is not the exception itself that you should think about in the context of this article, but rather the justification behind institutionalizing this legal doctrine – it is a perfect example of technology’s growing facilitation of increased leniency for privacy invasion and less privacy protection. The doctrine exempts searches of travelers and their property from the warrant requirement expressed in the 4th Amendment (which includes laptops and electronic storage devices). The source of recognition here in addressing the technological connotation at stake is the Ninth Circuit’s reversal of the ruling in U.S v. Arnold. The panel “rejected the argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.” Originally, the court ruled that, due to the private nature of the information contained in a laptop, border agents MUST HAVE reasonable suspicions before an unwarranted search of someone’s digital data device. This begs the question; with the vast amount of space available to store (personal) information, should digital devices be treated the same as personal property wherein agents need a warrant to seize such devices?

**Accordingly, take Ohio’s State v. Smith as an example. The Ohio Supreme Court decided that since cell phones have the “ability to store large amounts of private data,” the very nature of the device creates a higher level of privacy expectation, thus officers must obtain a warrant to search a cell phone.

BUT WAIT…..

Just this month, California experienced a perfect example of how convoluted the standards are across the country, and across time, as to how/whether an individual’s privacy/technology is protected under 4th Amendment.

The Headline: California Veto Enables Police for Warrantless Cellphone Searches.” But what about State v. Smith?? Apparently Governor Jerry Brown would not fit in in Ohio. Gov. Brown vetoed the legislation that would require police to obtain a court warrant to search suspects’ mobile phones. I.e. any police officer can, without restriction, access anyone’s e-mail, call records, text messages, photos, banking activity, etc. How’s that for civil liberties?

The Reality

The truth is, yes, the immense growth of technology for the last century has been integral in the gradual weakening of the 4th Amendment. It has dictated how much protection we can expect – an expectation that is now significantly less substantial as a result of both the sophisticated surveillance methods authorities have at their disposal, as well as the access every individual now has to advanced technologies. By this I am indicating that the government feels the need to regulate more heavily due to how much one can accomplish and maneuver with digital mechanisms today. With new innovations in technology creating such a worrisome threshold for criminal actors to communicate and execute harmful agenda, the central issue stretches far beyond the mere relationship between technology and the 4th Amendment. More important than expecting an unconditional right to privacy, we as Americans should be thinking about what we are willing to sacrifice to ensure national safety andthe regulation of potentially criminal activity.

Where Should Priorities Lie?

I expect a strong right to privacy just as much as the next American. However, in recognizing the incredible abilities technology has given the world, I am more than willing to give up whatever degree of privacy necessary to make sure that those who are hiding something from the government/public are given as little room possible to act and communicate freely and privately. The indisputable fact is, unless you are hiding something that you probably know you should not be doing, then as an American citizen, you should really have no reason to resist searches and seizures. The people who fight the issues at stake with the 4th Amendment should only be those who are hiding something illegal. If you do not fall under this category, then I really do not think you should take issue with the U.S. MAYBE crossing a few lines to ensure the safety of our country. So what is more important: getting your 100% protection of personal privacy or letting authorities slightly infringe upon the 4th Amendment as they see fit to identify criminal activity.   This applies both domestically and internationally.

I am not implying you should not feel entitled to your constitutional rights, but I am implying that there is a certain balance wherein both sides need to make mature sacrifices.

Fourth Amendment Rights and Warrantless GPS Tracking – by “Taylor G”

“This is the kind of thing we like to throw lawyers at,” the ACLU told Yasir Affi, according to a Wired article from October 2010. Affi, a US citizen since birth, had just days before found a GPS tracking device planted on his car. FBI agents reclaimed the device, offering no explanation as to why Affi had been targeted for GPS tracking in the first place.

The GPS tracking device Affi found on his vehicle

The ACLU, as well as many others, sees warrantless GPS tracking as a violation of our Fourth Amendment Right to be protected against unreasonable searches and seizures. This fall the Supreme Court will consider the issue when it hears US v. Jones, a case involving a man’s conviction of conspiracy to distribute cocaine, a conviction that was based in part on four weeks of GPS data collected surreptitiously by the police.

Specific Issues with Warrantless GPS Tracking

Many organizations have filed amicus briefs with the Supreme Court, arguing why tracing a person’s movements using GPS without a warrant is a violation of Fourth Amendment Rights. The Yale Law School Information Society Scholars brief, for example, portrays GPS tracking as “superhuman,” giving law enforcement monitoring capabilities that are so beyond what they could otherwise accomplish as to effectively make them omniscient. This omniscience, the brief says, is a violation of privacy.

As Orin Kerr writes on SCOTUSblog, figuring out whether we can reasonably expect privacy from GPS tracking on public land (like roads) is complicated by an Inside/Outside standard that has arisen out of Fourth Amendment cases like Katz, Kyllo and Place. That is, “A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be.” Kerr dislikes the idea of doing away with the inside/outside dichotomy, which leads him to conclude that the court should permit warrantless GPS tracking.

Many people would disagree with Kerr, if only because the idea of the police being able to track your every movement on a whim is an extremely unsettling prospect. Kerr formulates his thoughts in order to answer the question when and where can we expect privacy? And there are few public situations in which you can reasonably expect privacy, a closed phone booth being one of them, but likely not the open road.

In order to try to figure out where our unease with GPS tracking comes from, I changed how I was looking at the issue from one of identifying where people can expect privacy, to trying to figure out what kind of privacy we fear losing to warrantless GPS searches.

If you’re driving on public roads you can hardly expect that your location is secret or deserving of secrecy. However, the people that see you driving in one area of town don’t know where you are going or where you have come from. Similarly, when you arrive in a new part of town the people who might see you there have no idea where you had been driving before. My point is that at any given moment your location is probably known to strangers because of the public nature of driving, but those same strangers don’t know where you have come from and will likely not know where you go after leaving the vicinity. Thus, I believe it is reasonable to expect that most of your driving history remains private from any particular individual, despite the fact that at any moment in time your location is not private. Where I drive reflects a lot about who I am through indicating where I spend my time and what activities I do. Even though strangers may see me at distinct moments during the day, no one person gains a complete understanding of how my driving creates patterns that reflect who I am.

I am not contending that, contrary to US v. White, I can expect others to keep confidential the locations at which they see me. Rather, it is wholly unrealistic to expect that the thousands of people who see me each day would work together to sort out my entire day’s driving history. With this kind of expectation of privacy—that my whole driving history is private from any one individual—GPS does start to seem like a “superhuman” tool. It allows one particular agent, law enforcement, to become omniscient regarding my driving behavior—a level of knowledge that on a day-to-day basis we expect others to find impossible to attain. For law enforcement to obtain so much information about my driving habits, other available tools like putting a tail on me would probably become intrusive enough to cause me to alter my driving. GPS allows them to monitor me “in my natural habitat”, so to speak. So, I argue that we should start thinking not only about where we can reasonably expect privacy, but also from whom we can reasonably expect to keep which data about our lives private.

Smartphones and the Private Sector

If we assume that law enforcement should need a warrant to track individuals using GPS, then another issue is raised. Why are we so relatively OK with our smartphones tracking us in a much more personal way than the police do? Last year it was discovered that iPhones track their users’ whereabouts using GPS coordinates. I don’t know whether all smartphone providers do track users’ locations, but the devices certainly have the capability to do so. To my knowledge, companies such as Google and Apple don’t currently sell identifiable data, but it ‘s not so hard to imagine that someday smartphone makers and/or service providers would be interested in collecting person-specific location data with the intent to sell it. Then, the police would be able to simply purchase the data for which they otherwise need a warrant to collect themselves. Such a situation would serve to nullify whatever protections the public has against warrantless GPS tracking.  However, if we were to prevent law enforcement from purchasing data like these, that would put law enforcement in the awkward position of not having access to the same information that the general public could purchase.

Geolocation Privacy and Surveillance Act

Today, Senators Wyden (D-OR) and Chaffetz (R-UT) are co-sponsoring the Geolocation Privacy and Surveillance Act. The legislation is supposed to protect citizens through requiring warrants for GPS tracking and reduce the burden on law enforcement through reducing litigation associated with warrantless GPS tracking. The bill is a good step forward, but what will eventually happen regarding the massive amount of geolocation data gathered and to-be-gathered by the private sector is unclear. In order to stay on top of protecting our Fourth Amendment right to protection from unreasonable searches we need to start looking past government and begin speculating how private sector data collection has the potential to change how we control our private information in the future.

Is the 4th Amendment Enough? – by “Russell P”

In the digital age, I believe that the 4th amendment alone is too vague to accurately protect peoples’ rights against search and seizure. The 4th amendment protects 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. In the case of Kyllo v. United States, a thermal imaging device was aimed at a private home from a street in order to determine if the private home had special lamps used to grow marijuana plants. The lamps had a specific heat signature that could be picked up by the device. I think that from Kyllo’s perspective, that this is definitely an unreasonable search. It is as if the police can see inside his house without even entering and consequently can gain a warrant to come in without ever actually seeing what is going on in the house. From his perspective, even though he is using them to grow marijuana, he could be using the lamps for other things. However, while I see Kyllo’s point of view, I can also see why the police thought that it was okay to “search” his house from the street. They did not break and enter or perform what they thought was an unreasonable search. The 4th amendment needs to be updated to more accurately protect people because we have so much new technology that skates the edges of the law.

Tasers were originally developed as a weapon that could be used by law enforcement so that deadly force would not be necessary, but they have proven to still be dangerous. Tasers essentially temporarily paralyze an individual by sending an electrical current through the body. They are thought of to be less dangerous than guns, so people have been using them more and more liberally and I think that there must be some new rules to prevent the abuse of tasers. In the case of Bryan v. McPherson, Bryan was tasered in my opinion, simply because he took one step towards officer McPherson. The officer’s defense was that he was threatened and since the weapon was non lethal, it was not an excessive display of force. However, I believe that tasering an unarmed man who has taken one step out of a car is definitely a display of excessive force. This brought to mind the situation at Elevate (http://abcnews.go.com/US/yale-university-questions-police-tasered-student-club-raid/story?id=11796814) a few weeks ago. This was another situation in which a taser was used excessively. The police were coming in to break up a Yale party as a part of a citywide crackdown on nightlife. The party was not grossly out of control, nor were any of the people at the party armed or considered dangerous. There was absolutely no reason for the SWAT team to come in fully armed and taser a person multiple times. Even if the student in question made a move towards a police officer, there were numerous officers and apparently only one “aggressive” student. Before the era of tasers, they probably would have simply subdued someone who came after them with simple manpower. This would have been easy to do in this situation because the police officers outnumbered the aggressor(s) by so many. Now that we have tasers and they are considered not deadly, the “easy” fix is to whip out the taser and use it. I know that tasers are a relatively new technology, but there need to be many more ground rules and regulations that prevent excessive and unnecessary uses. Even though the taser causes less deaths than guns do, it is still an excessive display of force and should not be used simply because an officer is too lazy to subdue the aggressor physically.

Taser Happy – by “Charles H”

The Taser has quickly become the weapon of choice for officers.  A Taser is considered a non-lethal force that assists officers in handling dangerous individuals.  A Taser fires two electrodes that are sharp and penetrate through clothing into the skin.  Once piercing the skin, the probes release electricity into the body creating a painful disruption between the brain and the muscles.   This disruption incapacitates the individual while the electricity is flowing through the body, but when the current stops; it allows the individual to fully function.  While the use of the Taser has been of extreme benefit to the safety of police officers, there are advancing issues of officer abuse.  While the Taser is considered non-lethal force it is a very serious method of subduing an individual. While the use of the Taser is necessary in several cases and has even reduced lethal measures, the precedent is quickly being set on what is allowed when it comes to tasering an individual.

The fourth amendment raises a question of the probable cause needed to seize an individual using a Taser. At what point is an officer allowed to use a Taser in order to seize an individual?  While a taser is not legally considered lethal force, it’s result is violent and painful, and the media has made it more controversial in that it should be considered lethal force with regard to the violent self harm once tasered and the electrical effects to the heart which can result in death.  Regardless, specific guidelines are necessary for officers on what situations the Taser should be allowed.

Several cases are great examples of situations where a Taser was not necessary, for example, Brian v. McPherson.  Brian, a young man was having a hard day, having already been pulled over for a speeding ticket. Once again, Brian is pulled over, this time for not wearing his seat belt by Officer McPherson. After complying with the officer’s requests and pulling over, being very agitated with himself, Brian slams the steering wheel while swearing and crying because of the days misfortune.  Brian steps out of his car while the officer was 25 feet or so away and begins yelling at himself and hitting his thighs in self -disgust.  It is at this moment that the officer felt threatened and shot Brian with his Taser.  Brian falls to the hard pavement and sustains injuries. This illustrates a case that an officer used poor judgment in the use of taser.  Brian was simply releasing frustration and was not acting aggressive or combative in regard to the Officer.  To the officers defense, this scene does appear a little out of the ordinary for pulling someone over for a seat belt violation, but the use of a Taser while the individual is 20 plus feet away with hard pavement beneath him, and not approaching the officer is indisputably not the right thing to do.  The courts confirmed that Officer McPherson did not have a threatening issue to use a taser.

This is reminiscent of an incident that made national news when a young man in Utah was tasered for not complying with an officer’s instructions.  His offense? He refused to sign a speeding ticket.  While, he was not complying with the officer unlike the previous case, he did not appear to be a serious threat to the officer.  The Officer used unnecessary force, by opinion.  Check out the link to the clip.  Was their misconduct by the officer? Was it necessary?

Precedence setting issues, as well as training, are in evolution of a relatively new police equipment.  Cases like Brian’s will bring deterrence for issues of misconduct and is necessary when it comes to using a taser.  The Taser is a painful weapon that can be used to save lives, but guidelines and further discussion are needed to define unnecessary use. Most likely with the use of Tasers, assaults on police officers are down. Injuries to those being apprehended are mostly likely on decrease as well. This is a tool for cooperation and when an officer is faced with dilemmas of using his gun, baton or taser the later is best suited and provides utility to protect with the absence of misconduct.

Search and Seizure on Campus: Fourth Amendment Rights at Yale – by “Cameron M”

In a recent email to his students, Pierson College Dean Amerigo Fabbri outlined the guidelines surrounding the college’s annual ‘Inferno’ dance party. The email explained that no parties would be permitted in Pierson dorms during the Inferno and warned: “Officers will be patrolling the courtyard and the entryways beginning at 9 p.m. If they hear excessive noise coming from your suite they will visit your room.”

Although I don’t believe anyone tested the policy this weekend, I’m prompted to ask what a student’s rights would be during a ‘visit’ by an officer. The Yale Police Department issued 19 infraction tickets to students during last year’s Spring Fling, many during warrantless and unannounced dorm room ‘raids’ that left students confused. Do Fourth Amendment protections against unreasonable search and seizure extend to Yale dormitories?

If an officer asks to enter and/or search your dorm room, can you refuse the request? What requirements must be met before an officer can legally enter a student dorm to conduct a search? Do these answers vary depending on whether Yale Security, the Yale Police Department, or the New Haven Police Department is involved? Extending these questions to the digital domain: Do students have a reasonable expectation of privacy when using the Yale Network? Are emails, browsing histories, and other digital records protected, as they would be on a private home network?

A quick reading and keyword search of the Yale Undergraduate Regulations reveals no mention of the words ‘search’, ‘seizure’, or ‘warrant.’ In addition, Yale does not provide students living in on-campus dormitories with a formal lease agreement, a document that often includes policies on privacy and search regulation at other colleges.
Yale’s policy on electronic privacy is much clearer, with the University’s Information Technology Appropriate Use Policy outlining “circumstances in which, following carefully prescribed processes, the University may determine that certain broad concerns outweigh the value of a User’s expectation of privacy and warrant University access to relevant IT Systems without the consent of the User.” The University may access relevant information without user consent to comply with local, state, and federal laws, (including during the execution of police warrants), upon reasonable belief that University technology policy has been violated, and for a select number of other reasons. The explicit description of these policies clarifies, and at least somewhat reduces, concerns about policies on digital privacy and information search and seizure at Yale. A similar policy outlining regulations on traditional search and seizure and dorm room privacy is necessary and long overdue.

Even in the absence of University policy, search and seizure on college campuses is a widely legislated issue, mostly in state courts. In 2007 at Boston College, two students were arrested for possession of marijuana and cocaine after a campus police officer entered their dorm on suspicion of a violation of the University’s weapons policy. The students subsequently consented to a full search of the room, during which the illegal drugs were found by officers. Despite their consent to a search, the students argued that the initial entry into their dorm room by the university police officers violated their Fourth Amendment Rights, and that any subsequent searches and seizures were invalid. In 2009, the Massachusetts Appeals Court ruled against the students, citing that, as a private institution, initially enforcing institutional policy, the university and its officers were not required to abide by search and seizure limitations laid out by the Fourth Amendment. Although a permanent link is not available, the actual ruling can be found here, by searching for the docket number: 09-P-810.

However, similar cases have seen different outcomes in other state courts. In 2008, a Washington State Court of appeals ruling asserted that campus police had no right to randomly enter and patrol dormitory hallways, in which there was a reasonable expectation of privacy, as there would be in a usual apartment building or similar residence. Further, in a case involving Santa Clara University, a private institution, a warrantless dorm search conducted by police with permission from campus security officers was deemed unconstitutional. The dorm was considered the private residence and concern of the student, and therefore only the student, and not campus security, was deemed eligible to grant permission for a search.

As in the case of the 2010 Spring Fling, warrantless (and unannounced) dorm room searches have been and continue to be conducted at Yale. As of now, none have been challenged in court, and it is difficult to predict what the results of such a challenge would be. Especially considering the blurring of the private versus public enforcement distinction (with the Yale Police Department existing as a sort of middle ground between campus security and local police) and with the lack of any clear University policy, an uncomfortable state of ignorance seems to surround the entire issue. Perhaps greater student interest or concern would force the University to address some of the ambiguities that exist.

Regardless, students should not expect the protection of their constitutional rights to be put on hold while they attend college. We should expect a clear university policy that respects the spirit of these rights, rather than attempts to stretch the limits of legal search and seizure on campus. When acting to enforce Connecticut state law rather than simply University policy, Yale Police officers should be held to Fourth Amendment standards. Even without legislative action, the University should recognize that unannounced, warrantless searches by officers acting in such a capacity are unreasonably invasive and that dorm rooms truly are the private residences of students, just like any home or apartment.

Note: I have contacted Marichal Gentry, Yale College Dean of Student Affairs to ask for a clarification on Yale’s policies regarding search and seizure in dorm rooms. I will update this post as soon as I am able to get in touch and receive an answer.

The Patriot Act, defining Search and Seizure in the Digital Age? – by “Dylan D”

It may be hard to believe but it has been 9 years since the Patriot Act was signed into law. The legislation was hastily pushed through congress after the September 11th terrorist attacks. It was designed to give the government more power to prevent terrorism in the future. But many have seen the controversial piece of  legislation as a violation of Constitutional rights, most explicitly the Fourth Amendment. What the Patriot Act means today, is that search and seizure in the digital age has the danger of not being defined by the United States Constitution, but rather by a law designed to prevent terrorism. No one should be naive enough to think other wise, the intent of the law is to not only fight terrorism but lay the ground work for establishing search and seizure methods in the rapidly advancing digital age. Through briefly reading the Wikipedia article on the Patriot Act, I have come to the conclusion that the government no longer needs a warrant…….as long as its related to terrorism and national security….basically the law says, fight terrorism any way possible, Constitutional rights be damned. And while that may have seemed important in the aftermath of 9/11, is our fight against terrorism still more important than the Constitution today, 9 years and 5 days later?

Many will argue that the Patriot Act will expire and will not be foundation for search and seizure in the digital age. But to those who have that point of view I ask the fallowing question. Why does Congress keep renewing the Laws that were set to expire in 2005 in the original bill? This is not a Republican or Democrat thing because Congresses controlled by both parties have voted to extend. This is an American thing! We have become so concerned about National Defense and protecting our country from terrorist ( not that either of those things are unimportant) that we are willing to let ourselves be monitored and searched through means that violate our Constitutional right to protect ourselves against unreasonable searches and seizure. What have we as a country become?

This past weekend John Stewart and Stephen Colbert held their much anticipated Rally to Restore Sanity. I will be honest I did not watch one second of it, my plan the whole time was to watch the important parts on YouTube the next day. But that is not the point, the point is the title of their rally could not be more appropriate. Restoring sanity may be the most important step for this country to take as we struggle to move forward. Restoring sanity means waking up and saying the Constitution of the United States is what has guided the country for over 200 years, it has shaped the US into the country it is today, it has made us a great country. The Constitution has lead us through world wars, a civil war, a civil rights movement, and a cold war. If that great document can lead this country through that much, why can it not take on terrorism and the digital age too. The sane thing to do is realize it can and it will……but only if given the chance.