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.22 Tom

Cellphones and the 4th Amendment

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21 hours ago, Sean said:

I guess you haven’t read your talking points yet - http://reason.com/volokh/2018/06/22/first-thoughts-on-carpenter-v-united-sta

No, I try to read the court opinions first, then opinions about them. And this one has 4 dissents.
 

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7) Might This Reasoning Be Based on Equilibrium-Adjustment?

Indeed! I have written about how the Supreme Court often engages in equilibrium-adjustment when new technology threatens the balance of government power. If technology gives the government too much new power that can be abused based on old rules, the Court expands legal protection to restore old levels of power and limit abuses. On the flip side, if technology threatens to narrow government power too much that can unduly limit the government's ability to solve crimes under old rules, the Court shrinks legal protection to restore old levels of power and ensure the government can still solve enough cases.

In Carpenter, the Chief Justice is very clear that this what is going on.

 

So all I can say so far is that I like the result of it in this case.

I'm not sure whether you noticed, but your thread about Justice Kennedy generated quite a few responses. He's a smart dude. And he doesn't agree with the majority. Nor does Thomas. After reading their opinions, I might find that I still like the result but not the reasoning. It's happened before.

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Carpenter v US

Everyone got it right in one way or another.

The majority is right that cell phone location data is different from the kind of data collected in precedent cases and more revealing.

Kennedy, in the primary dissent, is right that it's also different from credit card purchase data and less revealing.

Thomas is right that the whole Katz line invites policy-making by judges because no one can say what a "reasonable" expectation of privacy might be (and the court won't try).

Alito does the best job of describing why a subpoena is different from a search and why a person can't have any privacy interest in the property of another. For example, if Jocal has a creepy database with personal information about me in it, I can't assert any 4th amendment right to prevent it being searched simply because it's his, not mine. If he has such a thing.

Gorsuch asks a good question about that subject:

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Why is someone’s location when using a phone so much more sensitive than who he was talking to (Smith) or what financial transactions he engaged in (Miller)? I do not know and the Court does not say....All we know is that historical cell-site location information (for seven days, anyway) escapes Smith and Miller’s shorn grasp, while a lifetime of bank or phone records does not.

Carpenter did not ask the court to disturb those precedents and they said they didn't.

You can learn more or less where I've been from location data. You can learn who I was talking to and what I bought, and from whom, from the other records. The majority is arguing that the former is more revealing. Much as I like the result, the dissents seem right on that point.

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Later still, the Court adds that it can’t say whether the Fourth Amendment is triggered when the government collects “real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval).” Ante, at 17–18. But what distinguishes historical data from real-time data, or seven days of a single person’s data from a download of everyone ’s data over some indefinite period of time? Why isn’t a tower dump the paradigmatic example of “too permeating police surveillance” and a dangerous tool of “arbitrary” authority—the touchstones of the majority’s modified Katz analysis? On what possible basis could such mass data collection survive the Court’s test while collecting a single person’s data does not? Here again we are left to guess. At the same time, though, the Court offers some firm assurances. It tells us its decision does not “call into question conventional surveillance techniques and tools, such as security cameras.”  Ibid.   That, however, just raises more questions for lower courts to sort out about what techniques qualify as “conventional” and why those techniques would be okay even if they lead to “permeating police surveillance” or “arbitrary police power.”

Gorsuch takes on the third party doctrine, saying that assuming a risk that something might occur is different from consenting to that something.

He says that just because one party possesses something, it shouldn't and doesn't extinguish any possibility that another party has an interest in it. So if I loan you my boat, for example, it's still my boat. And extending that closer to the Carpenter case, Gorsuch says that if Jocal has some of my personal information, it's still in some senses "mine."

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Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents.

Similarly, the idea that the fourth amendment literally only protects "your house" leads to a questionable result. Do my tenants or my LLC's have fourth amendment rights in our rental properties? I'd say both but the tenants don't own the place.

I didn't get all the way to the end of Gorsuch's dissent but will return because it's the best one. Though it does contain this questionable assertion:

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the  habits of raccoons don’t prove much about the habits of the country.

 

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Justice Kennedy is not really known for absolute statements but he pulled no punches in the primary dissent (joined by Alito and Thomas).
 

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Carpenter does not question these traditional investigative practices. And he does not ask the Court to reconsider Miller and Smith. Carpenter argues only that, under Miller and Smith, the Government may not use compulsory process to acquire cell-site records from cell phone service providers.


There is no merit in this argument.  Cell-site records, like all the examples just discussed, are created, kept, classified, owned, and controlled by cell phone service providers, which aggregate and sell this information to third parties. As in Miller, Carpenter can “assert neither ownership nor possession” of the records and has no control over them.

 

"No merit" huh? He goes on to say:

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The Court continues its analysis by misinterpreting Miller and Smith, and then it reaches the wrong outcome on these facts even under its flawed standard.

Ouch. I think the phrase "fractal mistake" hasn't reached him yet or he might have used it.

Meanwhile, the Chief Justice, in the majority opinion, noted that 12% of you use cellphones in the shower. In the shower? Aren't you busy showering?

The majority opinion says we have an expectation of privacy in "the whole" of our movements. That part is great. The problematic part, as the dissents note, is that the courts recognize no such expectation when it comes to "the whole" of our credit card transactions or records of people with whom we communicated.

 

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Kavanaugh would likely agree with the minority in that case, and disagree with Gorsuch about the third party doctrine.
 

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Kavanaugh expressed that view in the course of a 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. The case centered on the constitutionality of the National Security Agency's controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."

Kavanugh offered two principal explanations for why he considered the program to be constitutional. First, he invoked what's known as the "third-party doctrine," which says that if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy in that information. "The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment," Kavanaugh wrote.

But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program."

 

That bolded part is very troubling to me.

If a "war on terror" exception to the Constitution is needed, we have an amendment process to add it. We don't need judges doing it. I hope some wise Latina can rein him in on that issue.

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1 hour ago, Uncooperative Tom said:

Kavanaugh would likely agree with the minority in that case, and disagree with Gorsuch about the third party doctrine.
 

That bolded part is very troubling to me.

If a "war on terror" exception to the Constitution is needed, we have an amendment process to add it. We don't need judges doing it. I hope some wise Latina can rein him in on that issue.

Yes, you could justify anything on that basis. Even rounding up US citizens on the basis of their ethnic origin or religion. There's even precedent.

FKT

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38 minutes ago, Fah Kiew Tu said:

Yes, you could justify anything on that basis. Even rounding up US citizens on the basis of their ethnic origin or religion. There's even precedent.

FKT

Yes and that troubling case about Fred Korematsu wasn't really overruled.

Who looks through the Great List of Gaijin Names and picks "Fred" anyway?

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Speaking of justifying anything
 

Quote

 

Regardless of whether Montanez has a deeper connection to drug trafficking—he has previous arrests for marijuana possession but no felonies—Leduc doesn't believe an arrest for drug possession should logically lead to the police being permitted to search all your technology.

"There's no limiting principle here," Leduc says. "If the state's theory is correct, if you're a dude on a street corner, smoking a joint, they can demand your phone. If I enter a home, if I see marijuana, should I be able to search their laptops?"

 

More government power without any limiting principle is a common feature of the drug war. And every other kind of war, for that matter.

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10 minutes ago, Uncooperative Tom said:

Speaking of justifying anything
 

More government power without any limiting principle is a common feature of the drug war. And every other kind of war, for that matter.

Phones need to come with a 'brick' passcode.... and for the really paranoid, an option that clears the memory after say 48 hours of inactivity.

I regularly delete my call logs and text messages. What would be good is some form of transposition algorithm that encoded the numbers of your contacts to something other than the correct one. Mostly I just use initials in my contact list anyway; not like there's so many that I can't recall who they are.

It's like trawling through my tax returns - there's nothing interesting to find, but that's no reason to not maintain privacy regardless.

FKT

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22 minutes ago, Fah Kiew Tu said:

Phones need to come with a 'brick' passcode.... and for the really paranoid, an option that clears the memory after say 48 hours of inactivity.

I regularly delete my call logs and text messages

I could shoot my phone and toss the remains in the creek and I'm pretty sure that my call logs and text messages (and a whole lot more) could still be found on computers owned by Apple and by ATT.

And since I shared it with them and we have this "third party doctrine" thing...

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2 hours ago, Uncooperative Tom said:

I could shoot my phone and toss the remains in the creek and I'm pretty sure that my call logs and text messages (and a whole lot more) could still be found on computers owned by Apple and by ATT.

And since I shared it with them and we have this "third party doctrine" thing...

Yes but that information is a lot harder to get hold of than a deputy or someone scrolling through your call list & text messages without a warrant. If you run encrypted apps via wifi do the servers keep a copy? I've no idea because it's all too much hassle to bother with.

I don't even have a screen lock on my phone, it's a cheap Samsung smart phone on a prepaid plan and contains nothing of interest to anyone. If I lose it I'll just buy another and port the number. I've had this one nearly 4 years which is some sort of record, normally I break a phone every year or 2 (one too many drops on concrete).

Satellite phones are illegal or heavily restricted in certain countries because they're a hell of a lot harder to get data from the vendors. I think some Aussie got busted in India not so long ago for having an unregistered satphone.

FKT

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22 hours ago, Fah Kiew Tu said:

Satellite phones are illegal or heavily restricted in certain countries because they're a hell of a lot harder to get data from the vendors. I think some Aussie got busted in India not so long ago for having an unregistered satphone.

Now my Uncooperative side wants a satellite phone.

But I'm also too lazy to be bothered with real digital privacy. Snowden had to invent a phone. I'm glad I don't have to.

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On 5/24/2018 at 5:59 AM, Uncooperative Tom said:
On 3/17/2018 at 6:59 AM, Uncooperative Tom said:

Your cellphone is protected by the fourth amendment unless you're crossing the border.

Same result in another case.

Damon Root says that "border" searches of cellphones will go to the Supreme Court

I put "border" in quotes because the border is kinda big in my view. It includes Florida. Yes, the whole state is "the border" so cellphones are not safe anywhere. Maine either. Or Hawaii. Michigan. Lots of states consist entirely of "the border."

web18-100miborder-map-2400x1000px-v01.jp

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32 minutes ago, Spatial Ed said:

could computers and smartphones be "effects"?


Some of us think so. Not that it matters in those border states noted above.

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3 minutes ago, Uncooperative Tom said:


Some of us think so. Not that it matters in those border states noted above.

The poster who said cell phones are not effects also thinks I was raped as a child by a cop with a nightstick.  Your mileage may vary.

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On 7/26/2018 at 3:06 AM, Uncooperative Tom said:

Damon Root says that "border" searches of cellphones will go to the Supreme Court

I put "border" in quotes because the border is kinda big in my view. It includes Florida. Yes, the whole state is "the border" so cellphones are not safe anywhere. Maine either. Or Hawaii. Michigan. Lots of states consist entirely of "the border."

web18-100miborder-map-2400x1000px-v01.jp

Which nicely ignores the fact that the US recognizes a 200 n.m. economic zone on all ocean/gulf coasts.  

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14 hours ago, Left Shift said:

Which nicely ignores the fact that the US recognizes a 200 n.m. economic zone on all ocean/gulf coasts.  

Relevance?

If I arrive on our shores by boat, I kind of expect the authorities to want to question me, look at documents, search my boat, etc.

If I'm driving from my house to Lake Okechobee, I don't have the same expectation. Because I don't think I'm arriving in the country.

See the difference?

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Not exactly cellphone-related, but...

Utility Meters Search Your Home

(But that's OK.)

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In a fascinating new decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use. At the same time, the court says, the utility's search of the home is reasonable and therefore permitted without any cause or suspicion. The Seventh Circuit's analysis relies on Carpenter v. United States for a significant step in its reasoning. Given that, the new decision is an interesting measure of where Fourth Amendment law may be going in the post-Carpenter era.

I'm not sure it's even a search.

I like the new water meters that report usage frequently. They find leaks before I do. They do it by "searching" how much water they send through the meter. It didn't occur to me to feel violated.

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17 minutes ago, Thistle3868 said:

That's interesting.  Why would frequency matter?  Are they performing a search for a monthly read meter as well?

Apparently, the plaintiffs' complaint was that the utility co could thereby learn personal information like when you sleep, when you're out of town, when you run your dryer, or whatever. It's not possible to learn those details via monthly reading.

Like I said, I don't really buy it. I'm not sure that it's a search at all, but the court said it is. OK, so it is. They said it's not particularly instrusive or revealing and the power co has good reasons for wanting to know how much customers are using. All true, and for those reasons they called it a reasonable and permissible search.

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You'd be surprised what you can glean from monthly residential usage data....for example, I was able to identify every growop in Vancouver with a simple query on usage.

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3 hours ago, Thistle3868 said:

You'd be surprised what you can glean from monthly residential usage data....for example, I was able to identify every growop in Vancouver with a simple query on usage.

Kyllo

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Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant. Pp. 3—13.

So it might matter whether these meters are in general public use.

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4 hours ago, Thistle3868 said:

You'd be surprised what you can glean from monthly residential usage data....for example, I was able to identify every growop in Vancouver with a simple query on usage.

Buddy runs a grow op. Massive electrical bill. PGE is like an illegitimate child of the landlady in the George Thorogood song and Sergeant Shutlz.

She said that don't befront me,
Long as I get my money next Friday

I know nothing

Massive electrical bill. Buddy buys an EV. Buddy pays massive electrical bill at the EV tariff. PGE says ...

She said that don't befront me,
Long as I get my money next Friday

I know nothing

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More on the topic of what is a search?
 

Quote

 

The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a "search" for the government to then open the file to confirm it is child pornography? Held, per Judge James Ho: No, it is not a search under the private search reconstruction doctrine.

First, some background. The private search reconstruction doctrine lets the government recreate a private search as long as it doesn't exceed the private search. The idea is that the private search already frustrated any reasonable expectation of privacy. Merely recreating what the private party did is within the private search and is not a new government search. But in the case of computers, that raises difficult issues: What is merely a recreation of a prior private search, and what exceeds the search?

 

I never heard of private search reconstruction before.

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10 hours ago, Uncooperative Tom said:

More on the topic of what is a search?
 

I never heard of private search reconstruction before.

Me neither and it makes me wonder - just how is this private company running a search over other peoples' files anyway?

I suspect this is a cloud-based storage thing. In any case once known it seems pretty simple to circumvent - there have to be dozens of ways to change a file slightly so it generates a different hash code.

Friend of mine is in the encryption biz for corporate cloud storage - must ask him about this.

Care factor WRT child pornographers zero to negative but what else could they decide to go prospecting for?

FKT

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10 hours ago, Fah Kiew Tu said:

Me neither and it makes me wonder - just how is this private company running a search over other peoples' files anyway?

Apparently by "running a hash." When I do that, it just means some sauce has dripped off the toast. Or maybe it refers to hash browns? A totally different thing. Better ask your friend.

10 hours ago, Fah Kiew Tu said:

Care factor WRT child pornographers zero to negative but what else could they decide to go prospecting for?

That's a very good question. The people who define our rights are seldom sympathetic characters. You have to look really hard to find an appealing plaintiff. Like, you know, Ms. Parker or Mr. Heller.

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On 6/26/2018 at 6:35 AM, Uncooperative Tom said:

Kavanaugh had something interesting to say about that case.
 

Quote

 

In this, my final post on Judge Kavanaugh's testimony, I focus on one issue that may prove the most important: his views on the Fourth Amendment. Having written an opinion suggesting that bulk data collection was constitutional, he insisted that the Carpenter case involving cell phone tower data was a "game changer." [My comment is in brackets.]

Day 3, Part III (2:01:07 – in response to Senator Pat Leahy on Kavanaugh's former opinion okaying the dragnet of phone recordings by the NSA, justifying it as a means to prevent terrorism):

The important I would say is I was trying to articulate what I thought was based on precedent at the time. At that time, when your information went to a third party, and the government obtained that information from the third party, the existing Supreme Court precedent was that your privacy interest was essentially zero. The opinion for the Supreme Court by Chief Justice Roberts this past spring, in the Carpenter case, is a game changer. And that's important. I talked repeatedly in this hearing about how technology will be one of the huge issues with the Fourth Amendment going forward. And you see Chief Justice Roberts' majority opinion in Carpenter that alters and really is a game changer from the precedent on which I was writing at that time.

[The claim that Carpenter was a game changer undermining the constitutionality of bulk data collection was made by Sharon Bradford Franklin in here article, Carpenter and the End of Bulk Surveillance of Americans, which is worth reading in its entirety.

 

Carpenter does kind of undermine the whole "it's just some metadata from the phone company" argument.

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