Fourth Amendment

The Washington Post reported last week on how some federal magistrate judges are "balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights." For example, D.C. Magistrate Judge John M. Facciola, "deemed a law enforcement request for the entire contents of an e-mail account 'repugnant' to the U.S. Constitution," the Post also reports. He is an outlier but "part of a small but growing faction, including judges in Texas, Kansas, New York and Pennsylvanai, who have penned decisions seeking to check the reach of federal law enforcement power in the digital world."

When we get arrested, do police have the right to search phones without a warrant, Reason's Damon Root asks. Do warrantless cell-phone searches constitute unreasonable searches and seizures?

While it is constitutionally permissible for police to search arrestees, their possessions and the immediate vicinity around the arrest site without a warrant, "cell phones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?," Reason also asks.

The two cases the U.S. Supreme Court will hear are Riley v. California and United States v. Wurie.

Journalist Pedro Rivera has filed a lawsuit alleging the Hartford police violated his First Amendment rights by questioning his use of a drone to record images of a car wreck, the Associated Press reports. Rivera claims that he was told to leave the area and that his TV-station employer was told he had interfered with a police investigation. At the time, Rivera was not working for WFSB-TV but is on call for them. Rivera also alleges violations of his Fourth Amendment rights. The complaint can be accessed here.

The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.

Even though the U.S. Supreme Court ruled in United States v. Jones the law enforcement's installation of GPS devices on suspects' vehicles  are searches under the Fourth Amendment, the Second Circuit has reasoned '"Jones left open the question of whether the warrantless use of GPS devices would be 'reasonable—and thus lawful—under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause' to conduct a search,'" according to The New York Law Journal. The GPS tracking of the defendants in the case before the Second Circuit was not done with delibrate, reckless or gross disregard for their Fourth Amendment rights and was done with reasonable reliance on court precedent before the U.S. Supreme Court decided Jones, The Journal also reports. So the panel decided the evidence related to the search was in good faith and didn't need to be excluded.
 

A federal judge ruled today that the National Security Agency's surveillance of most phone calls made in the United States or to the United States is likely unconstitutional, Politico reports: "U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks."

Politico further reports: "Leon’s 68-page ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case."

The judge granted a preliminary injunction but promptly stayed it to allow for an appeal.

Yochai Benkler, law professor and director of the Berkman Center for Internet & Society at Harvard University, writes in The Guardian that a ruling in the Foreign Intelligence Surveillance Court contradicts recent jurisprudence from the U.S. Supreme Court on security and the constitutional protection from unreasonable searches and seizures. One of the most important implications of Benkler's argument is for FICA no longer to be an ex parte, completely secret court. Creating a role for an adversary to the goverment's surveillance requests has been one of the key reforms suggested for FISC. Benkler says that if FISC was adversarial that the U.S. Supreme Court's holding in United States v. Jones--that it was unconstitutional for law enforcement to place a GPS tracking device on a suspect's vehicle without a warrant-- would not have been ignored by FISC in a decision setting out "why the government's collection of records of all Americans' phone calls is constitutional."

As the stage is set for a US Supreme Court ruling on whether the governmental capture of metadata violates the Fourth Amendment's protections against unlawful search and seizures, the Foreign Policy has a gripping profile of  National Security Agency Director and Lt. Gen. Keith Alexander. One source told FP that, '"Alexander tended to be a bit of a cowboy: 'Let's not worry about the law. Let's just figure out how to get the job done.'" Plus: his base of operations is based on the bridge of the Starship Enterprise!