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Cellphones and the 4th Amendment


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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
 

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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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  • 2 weeks later...
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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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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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?
 

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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.
 

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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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  • 2 months later...

4th Circuit Rules Warrant Is Needed To Place GPS Tracking Device
 

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The Fourth Circuit handed down a new Fourth Amendment decision last week, United States v. Terry, that raises fascinating questions about the law of installing GPS devices, the role of warrants, and the exclusionary rule. The court ruled for the defendant and suppressed the evidence, but I'm not sure the court was correct. I thought I would explain my thinking.

I. The Facts

Terry was suspected of being involved in the drug trade. The police saw Terry and followed him to a parking lot, where they had a conversation with him. Having identified Terry's car, an officer secretly placed a GPS device on the car. Later that day, the officers applied for and obtained tracking warrants to "ping" Terry's phone and to place the GPS on his car. The warrant application did not tell the magistrate judge that the officers had already installed the GPS device earlier that day.

Two days later, officers used the GPS data they were receiving to track Terry and to follow him on the highway. Noting that Terry was speeding 5 miles per hour, the officers decided to pull over Terry. The traffic stop led to the discovery of drugs on Terry. Terry was charged with drug trafficking based on that discovery, and he moved to suppress the evidence. During the suppression hearing, the officer testified that he knew that he needed a warrant to place the GPS device and that he "had affixed GPS trackers to cars without first obtaining a warrant in other instances as well." The trial court ruled the drugs admissible, and Terry was convicted by a jury and sentenced to a long prison sentence.

II. The Fourth Circuit's Ruling

On appeal, the Fourth Circuit overturned the conviction. According to the court, the officers had installed the GPS device in "flagrant disregard for the well-established warrant requirement set forth by the Supreme Court in United States v. Jones. See 565 U.S. 400, 404 (2012)." They knew they needed a warrant to install the GPS, but they installed the GPS device without a warrant. That made the discovery of the drugs a fruit of the poisonous tree of the unlawful GPS installation.

 

He gives a couple of good reasons for thinking the Fourth may be wrong, mostly based on the Jones case, in which SCOTUS held that installing a GPS tracking device is a search. Many, but not all, searches require warrants. So just because it's a search doesn't mean it requires a warrant.

Also, by the time of the traffic stop, there was a warrant.

They didn't tell the magistrate that the GPS was already placed because they thought they needed the warrant to place it. Possibly incorrectly, but that's what they thought.

Oh well, turns out it was correct after all. Unless SCOTUS says otherwise if this is appealed.

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1 hour ago, dogballs Tom said:

4th Circuit Rules Warrant Is Needed To Place GPS Tracking Device
 

He gives a couple of good reasons for thinking the Fourth may be wrong, mostly based on the Jones case, in which SCOTUS held that installing a GPS tracking device is a search. Many, but not all, searches require warrants. So just because it's a search doesn't mean it requires a warrant.

Also, by the time of the traffic stop, there was a warrant.

They didn't tell the magistrate that the GPS was already placed because they thought they needed the warrant to place it. Possibly incorrectly, but that's what they thought.

Oh well, turns out it was correct after all. Unless SCOTUS says otherwise if this is appealed.

Let's say that the government instead used some kind of satellite tracking technology where the satellite was trained on the car and then just followed it around where ever it went.  That would almost certainly fall under the "plain view" doctrine.  You don't have a right to privacy for things that are in plain view.  His car was in plain view.  

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8 minutes ago, jzk said:

Let's say that the government instead used some kind of satellite tracking technology where the satellite was trained on the car and then just followed it around where ever it went.  That would almost certainly fall under the "plain view" doctrine.  You don't have a right to privacy for things that are in plain view.  His car was in plain view.  

Its thermal image would be in plain view, much like Kyllo's house.

What happened in that case again?

Oh yeah. The thermal image was a search.

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13 minutes ago, dogballs Tom said:

Its thermal image would be in plain view, much like Kyllo's house.

What happened in that case again?

Oh yeah. The thermal image was a search.

By the reasoning of that case, satellite surveillance would be a search because the public doesn't have access to satellites.  Seems kind of a silly line of reasoning to base privacy rights based on technology available to the public.  Seems like if you are emitting IR waves into the world, monitoring those waves would be fair game.

Of course, the federal government has no power to regulate growing plants inside one's house.  Or at least that is how it would be if anyone cared about the actual Constitution.

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I think that's how the dissenters viewed the case. It was 5 to 4.

It's also one that frustrates those who think there are only partisan cases.
 

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Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer, JJ., joined.

Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined.

 

Hard to tell which team is which sometimes.

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  • 2 weeks later...

Implementing Carpenter
 

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...

Based on a close read of the opinion and the broader theory of equilibirum-adjustment driving it, the chapter argues that Carpenter applies to non-content Internet records otherwise left unprotected when three conditions are met. First, the records must be new kinds of records of the digital age. Second, the records must not have been generated by meaningful voluntary choice beyond what is necessary to participate in modern life. Third, the records must be of a type that can reveal an intimate window into a person's life.

The second chapter, Implementing Carpenter, applies those general principles. It first focuses on the challenging question of how to identify a Carpenter search in a particular case. How do you measure a privacy invasion? Does a search occur when an intimate fact was actually revealed in an investigation? Does it occur when the government gets enough records that the revealing of an intimate fact would be expected, the so-called Mosaic Theory? After going through the pros and cons of different approaches, the chapter concludes that the best way to measure an invasion of privacy is a source rule: Any government collection of any amount of Carpenter-protected information, no matter how small or unilluminating in a particular case, should be treated as a search.

 

He goes on to say that various flavors of metadata should not be considered protected under Carpenter.

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1996 Hahvahd Journal Of Law And Tech

Peter Collins was a DIA technical analyst but a lot of his job seemed to consist of promoting ballroom dancing.

He made an absolute shitload of copies on government machines. The court said he converted. A normal person would have said he stole, which means the same thing that conversion means to a lawyer.

He also used government computers a lot. The court said he didn't convert. Meaning, he didn't steal.

Why did the court think that using your employer's computer to play isn't stealing? Because it did not deprive other employees of the ability to use the computer system for work. "Conversion" involves using another's property and thereby depriving him of its use. The latter didn't happen, no conversion.

Why this might matter in an upcoming SCOTUS case.

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On 8/19/2018 at 1:42 AM, dogballs Tom said:

You have to look really hard to find an appealing plaintiff. Like, you know, Ms. Parker or Mr. Heller.

Heller is a loose cannon, like Tom. A real wild card.

Levy and Gura had problems handling DIck Heller, had to exclude him from some procedures. In a formal interview with a reporter, Heller accosted passers by and suggested they were going to work on a plantation.

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  • 3 weeks later...

Cellphones and the 5th Amendment
 

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In an opinion published January 10, a federal magistrate judge in Oakland, California, ruled that the Fifth Amendment's protections against self-incrimination extend to phones equipped with biometric locks. Federal police can search a residence, the court ruled, but may not force anyone present during a search to hold their finger, thumb, iris, or other body part up against a phone to try to unlock it.

...

a friendly reminder: if you have a newer iPhone, squeezing the side button and volume up or down will turn off Touch ID and Face ID. Newer Android devices have lockdown mode, which requires a passphrase to unlock your device. Perhaps future smartphones will lock themselves down when taken to a police station that's not whitelisted in advance. If the law lags behind, technology can help to fill in the gaps.

 

Hmmm... Doesn't seem to work on my phone.

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  • 1 month later...

Stored Communications Act Confusion
 

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D. My Thoughts, and Why the Supreme Court Should Take This Case

I have strong priors on this particular legal question: I think the statute adopts the opened-unopened e-mail distinction, and that the Fourth Circuit was wrong to reject it. Indeed, the district court in Hately relied in part on my discussion of this issue from my 2004 article on the SCA. I go into detail in my article on this, but the basic idea is that you need to go back to what "backup protection" meant in 1986 when the statute was enacted. The meaning of the term in 1986 was pretty clear but also pretty narrow, which you can see in particular from Section 2704's rules for "backup" copies and discussions in the legislative history of the statute. Although we might have thoughts about what backups mean to us today, I think the text of the statute and the understanding of the terms in 1986 point in a different direction.

And that's related to what makes the legal issue so difficult: There's a big gap between the law Congress actually enacted in 1986 and today's sensibilities. The statute Congress enacted in 1986 was premised on a key distinction between the high privacy protection afforded to e-mails in transit and low privacy protections afforded to contents held by users in the cloud. Thirty-three years later, Congress's 1986 viewpoint seems bizarre. Today we see both of those as equally private.

 

Apparently, the last remaining Blockbuster store in the world is using reel to reel backups, dot matrix printers, and other such stuff.

The rest of us have lots of emails stored on servers.

I did not know that reading my email meant it had less fourth amendment protection than if I had left it unread. At least in some places, and in 1986.

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  • 2 weeks later...

If you're a Kansas cop on patrol and you see my truck and you know my license is revoked, that will probably cause you to pull the truck over. That's true in many states, according to the amicus brief from Oklahoma and other states.

So that's a kind of probable cause.

Or is it?

The Supreme Court will decide in Kansas v Glover

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Issue: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

My guess is that they took this case just to say yes to that question by 9-0.

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Putting chalk on a car is more or less like putting a GPS on it
 

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...

The court’s ruling on a decidedly low-tech tactic relied on a distinctly 21st Century precedent: United States v. Jones. In Jones, the U.S. Supreme Court ruled that using a GPS device, without a warrant, to track the location of a suspected drug dealer’s car was unconstitutional. As Judge Bernice Bouie Donald summarized in her opinion, “Under Jones, when governmental invasions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.”

Since a government official did touch Taylor’s car, Donald concluded that chalking was a form of trespass. “This physical intrusion, regardless of how slight, constitutes common-law trespass,” she wrote, even though there was “no damage at all.” That, coupled with the fact that Saginaw clearly used the chalked tires to identify which parked cars should be cited, means that chalking does qualify as a “search.”

...

 

 

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On 4/2/2019 at 9:42 PM, Importunate Tom said:

If you're a Kansas cop on patrol and you see my truck and you know my license is revoked, that will probably cause you to pull the truck over. That's true in many states, according to the amicus brief from Oklahoma and other states.

So that's a kind of probable cause.

Or is it?

The Supreme Court will decide in Kansas v Glover

My guess is that they took this case just to say yes to that question by 9-0.

Good reason not to link the 2 bits of information if you can get away with it.

My vehicle registrations are quite legally not linked to my driver's licence. I have no intention of going into details as a good loophole needs to be kept under the radar.

As I've had zero traffic infringements in over 20 years it's not like I exploit it, and it doesn't render me immune anyway, just stops the computerised linkage of information I prefer to keep unlinked.

FKT

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  • 1 month later...

When is installing a govt-monitored GPS on a vehicle NOT a search?

When it's part of a protection racket, of course.
 

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Today, the Illinois Supreme Court upheld two provisions of Chicago’s law that block food trucks from parking within 200 feet of restaurants and require they install GPS devices so city officials may track their every move. The Institute for Justice challenged these two provisions in 2012 on behalf of Laura Pekarik, owner of the Cupcakes for Courage food truck. With the Court’s ruling, the Second City’s food-truck industry, which has shrunk by over 40 percent in the past six years, will continue to sputter out.  Not only does Chicago’s rule shut a low-cost, common path into the restaurant industry for the city’s entrepreneurs, it forces everyday Chicagoans to continue to suffer from fewer choices and higher prices.

“Today’s ruling doesn’t protect public safety; instead, it protects brick-and-mortar restaurants from honest competition,” explained IJ Senior Attorney Robert Frommer, who was lead counsel on the case. “A hallmark of America is robust competition, not hardball politics and backroom deals. Holding that Chicago may use public power for private gain breaks with over a century of precedent and weakens the constitutional rights of not just food truckers, but all Illinoisans.”

 

 

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On 4/25/2019 at 6:25 PM, Fah Kiew Tu said:

I've had zero traffic infringements in over 20 years

That's nice. Just watch out for scofflaw undercover cops.

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A police officer in an unmarked SUV ran a stop sign before getting struck by a car on Wednesday.

The crash happened at the corner of Livernois and Cadet Street in southwest Detroit. Video surveillance from a neighbor's house shows a Michigan State Police officer in a silver SUV ignoring a stop sign and driving through the intersection.

That's when Carlos Martinez, driving a red car, collided with the side of the SUV, knocking it off the road.

"All he kept saying was 'you hit a cop, you hit a cop, you hit a cop,' and at no moment say 'how are you, are you okay,'" said Maria Martinez, Carlos's mother. "No, they just handcuffed him like a criminal."

After the two cars collided, the video shows an officer exit the SUV and order Martinez onto the ground. Then they handcuffed him.

"He told him call my parents, call my mother," Martinez said of her son. "The police officer say 'you're 27 years old, you're old enough, you don't need no parents and plus you don't have no rights right now."

 

And it did not end with arresting Martinez for the cop's mistake...
 

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Maria is still trying to get information from the police. She said MSP has Carlos's license and his phone.

"When I asked the cop to give me his supervisor's number, so I could call and get my son's items back, he didn't want to give me no information."

 

Da fuk?

I wasn't sure whether to put this here or in the asset forfeiture thread since I'm not sure what, if any, basis there might be for keeping his phone. I can't think of a good one.

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10 hours ago, Importunate Tom said:

That's nice. Just watch out for scofflaw undercover cops.

And it did not end with arresting Martinez for the cop's mistake...
 

Da fuk?

I wasn't sure whether to put this here or in the asset forfeiture thread since I'm not sure what, if any, basis there might be for keeping his phone. I can't think of a good one.

Far, far too many of your cops have lost the plot and obviously think that they're above the law. If they get away with this sort of shit, they demonstrate that in fact, they are.

As for keeping the phone, they're trawling it for stuff they can use to charge the owner for, it has stuff on it they don't want to come to light, who knows.

You guys are creating a police state all right. Congratulations.

FKT

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1 hour ago, Fah Kiew Tu said:

Far, far too many of your cops have lost the plot and obviously think that they're above the law. If they get away with this sort of shit, they demonstrate that in fact, they are.

As for keeping the phone, they're trawling it for stuff they can use to charge the owner for, it has stuff on it they don't want to come to light, who knows.

You guys are creating a police state all right. Congratulations.

FKT

That may be true but thanks to benevolent and powerful corporations like the ACLU expre$$ing themselves in our courts,

13 hours ago, Importunate Tom said:

It's OK to call a cop a "stupid sum bitch" on Facebook, at least in the USA. I think that's a good thing.

If I were Mr. Martinez, I'd be lawyer shopping as soon as I got out of the hospital.

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  • 1 month later...

Another Federal Court Allows Warrantless Cellphone Searches at U.S. Border

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The U.S. Court of Appeals for the 9th Circuit reached a similar conclusion about warrantless cellphone searches at the border last week. "Border officials may conduct suspicionless manual searches of cell phones," the 9th Circuit held in United States v. Cano, "but must have reasonable suspicion before they conduct a forensic search." Unlike probable cause, which is the standard required for obtaining a search warrant, reasonable suspicion is a more lenient rule that lets law enforcement officials conduct searches without getting a warrant first.

The court did disallow some of the evidence obtained from the phone so the Cano case is a bit better than the earlier Vergara one.

I mentioned the previous appeals court decision in the Vergara case upthread:

On 3/17/2018 at 6:59 AM, Repastinate Tom said:

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

The discovery of the photos seems to me to be plenty of basis to ask for a warrant.


I agree with the dissenter from that previous case:
 

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It is one thing, after all, to let border agents rummage through your suitcase or through the trunk of your car without a warrant. It is something else to let those same agents download and examine every digital record on your cellphone—a treasure trove of highly sensitive personal information—without at least getting a warrant first.

Judge Jill Pryor, the lone dissenter in the Vergara case, suggested a good way for the federal courts to handle the issue going forward. "Due to the extreme intrusion into privacy posed by a forensic cell phone search," Pryor wrote in her Vergara dissent, "my answer to the question of what law enforcement officials must do before forensically searching a cell phone at the border…'is accordingly simple—get a warrant.'"

 

In a footnote, the Cano case judges specifically declined to rule on whether a Cellebrite search requires a warrant.

Quote

Whether the Cellebrite search constitutes a forensic search is disputed.Because the district court passed on the issue without deciding it, because neither party has briefed the question to us, and because we are vacating Defendant’s conviction, we decline to reach the merits of the parties’ dispute.

I hope those merits wind up before SCOTUS before too long.

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2 hours ago, Repastinate Tom said:

 

I hope those merits wind up before SCOTUS before too long.

Why?  You think they are going to all of a sudden roll back the constant march towards a police state that conservative justices have pushed for the past 30 years?

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19 hours ago, MR.CLEAN said:

Why?  You think they are going to all of a sudden roll back the constant march towards a police state that conservative justices have pushed for the past 30 years?

Sure, for a couple of reasons.

1. Carpenter was decided just last year.

2. Gorsuch's dissent doesn't read all that much like a dissent. He's advocating an approach to the 4th based on property rights that I think makes sense.

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  • 1 month later...
On 6/14/2019 at 6:47 AM, Hypercapnic Tom said:

When is installing a govt-monitored GPS on a vehicle NOT a search?

When it's part of a protection racket, of course.
 

Quote

 

Today, the Illinois Supreme Court upheld two provisions of Chicago’s law that block food trucks from parking within 200 feet of restaurants and require they install GPS devices so city officials may track their every move.

The decision by the Illinois Supreme Court is being appealed to the US Supreme Court.

https://ij.org/case/chicagofoodtrucks/

The cert petition
 

Quote

 

QUESTION PRESENTED

Whether Chicago’s requirement that licensed food trucks install GPS devices that create comprehensive records of their movements in order to protect restaurants from competition is an unreasonable search under the Fourth Amendment.


 

The first question is whether it's a search at all, then comes the question of whether it's reasonable.

Quote

Chicago’s GPS requirement is a search. In both United States v. Jones and Grady v. North Carolina, this Court held that the compelled installation of a GPS device is a Fourth Amendment “search.” But on May 23, 2019, the Illinois Supreme Court held the op-posite. Interpreting “the search and seizure clause in [the Illinois Constitution] using the same standards as are used in construing its federal counterpart,” App. 16, the court held that Chicago’s GPS requirement is not a search. Id. at 18. In so holding, the court distin-guished both Jones and Katz v. United States by noting that they are “criminal cases” while Chicago’s GPS re-quirement is civil in nature. Id. at 17. The court also held that, even if the GPS requirement is a search, it is reasonable under the Colonnade–Biswell exception to the warrant requirement, in part because the entire food industry is “closely regulated.”

The idea that the fourth amendment only applies to criminal matters, not civil ones, conflicts with LA v Patel.

In that case, the Wise Latina said in her majority opinion

Quote

because the majority of regulations applicable to hotels apply to many businesses, to classify hotels as closely regulated would permit what has always been a narrow exception to swallow the rule.

 

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  • 3 weeks later...

Forbes had a pretty good article on that case and the related issues it raises.

Do Food Trucks Have Fourth Amendment Rights? Supreme Court Could Decide In Chicago GPS Tracker Case

The big new idea seems to be that anything that is regulated is "closely regulated" and therefore immune to that pesky Bill of Rights.

An IJ press release shows how seriously this kind of protection racket is taken:

Quote

“Food trucks that park any closer to a restaurant can be fined up to $2,000—ten times the fine for parking in front of a fire hydrant, which only underscores the economic protectionism at play here,” said IJ Attorney Joshua Windham.

Competing with a closely protected business is much, much worse than preventing access to a fire hydrant.

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3 hours ago, Hypercapnic Tom said:

 

Competing with a closely protected business is much, much worse than preventing access to a fire hydrant.

I thought this was a 4th amendment thread.  Now you're bitching about state regulation of mobile businesses?

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On 9/27/2019 at 7:39 AM, Hypercapnic Tom said:

The cert petition
 

Quote

 

QUESTION PRESENTED

Whether Chicago’s requirement that licensed food trucks install GPS devices that create comprehensive records of their movements in order to protect restaurants from competition is an unreasonable search under the Fourth Amendment.

 

 

2 hours ago, MR.CLEAN said:

I thought this was a 4th amendment thread.  Now you're bitching about state regulation of mobile businesses?

Yes. Readers of the Question Presented in the cert petition understand why.

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14 minutes ago, Hypercapnic Tom said:

 

Yes. Readers of the Question Presented in the cert petition understand why.

Thanks for the link.  Reading the petition now to procrastinate writing up a cannabis banking policy document that I'm getting paid a fortune to write.

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First argument is ultra weak, it's too easy to distinguish Jones, which is pretty much all they rely on for that argument.  I won't get to the other arguments because I'd call it a 95% chance that cert is denied on this issue.

As a policy matter, no way will SCOTUS invalidate this kind of tracking of a mobile food business, even if they have to save it by first allowing it to be called a warrantless search, and then by calling the mobile food business a 'closely regulated business'.  

City could have done a better job writing the ordinance.  Shit lawyering.  If they called it 'safety' there would be no chance of a review. 

 

 

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7 hours ago, MR.CLEAN said:

First argument is ultra weak, it's too easy to distinguish Jones, which is pretty much all they rely on for that argument.  I won't get to the other arguments because I'd call it a 95% chance that cert is denied on this issue.

As a policy matter, no way will SCOTUS invalidate this kind of tracking of a mobile food business, even if they have to save it by first allowing it to be called a warrantless search, and then by calling the mobile food business a 'closely regulated business'.  

City could have done a better job writing the ordinance.  Shit lawyering.  If they called it 'safety' there would be no chance of a review.

The Illinois Supremes said Jones was different because it was a criminal case.

Quote

But the court distinguished Jones as a “criminal case[ ]” and found that Petitioner has virtually no expectation of privacy because Laura or her employees sometimes post the truck’s general location online.

I'd agree that posting your location for promotional purposes does kinda negate any expectation of privacy.

However,

Quote

These holdings of Jones are not limited to the criminal context. That much was clear when Jones was decided. See City of Ontario v. Quon, 560 U.S. 746, 755 (2010) (“It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal in-vestigations.”). In any case, this Court expressly resolved the is-sue in Grady. There, a convicted sex offender chal-lenged a North Carolina statute requiring him to wear a GPS device upon release. The lower courts distin-guished Jones, placing “decisive weight on the fact that the State’s monitoring program is civil in nature.” Grady, 135 S. Ct. at 1371. But this Court unanimously rejected that logic, applied Jones, and held that forcing subjects to wear GPS devices “effects a Fourth Amend-ment search.”

It seems that a unanimous SCOTUS said "it's civil, not criminal" is not a defense against the holding in Jones that attaching a GPS is a search.

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18 hours ago, Hypercapnic Tom said:

The Illinois Supremes said Jones was different because it was a criminal case.

I'd agree that posting your location for promotional purposes does kinda negate any expectation of privacy.

However,

It seems that a unanimous SCOTUS said "it's civil, not criminal" is not a defense against the holding in Jones that attaching a GPS is a search.

food truck ain't a person, obviously, so Grady distinguished easily.  Expectation of privacy, waiver, etc.  More importantly, all these dumb fucking cities need to do is say the GPS requirement is related to 'food safety/hygiene checks' and they will never lose, not even close.

 

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On 10/16/2019 at 11:43 AM, MR.CLEAN said:

Reading the petition now to procrastinate writing up a cannabis banking policy document that I'm getting paid a fortune to write.

Did I somehow miss a change to the schedule 1 drug list?

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14 hours ago, MR.CLEAN said:

food truck ain't a person, obviously, so Grady distinguished easily.  Expectation of privacy, waiver, etc.  More importantly, all these dumb fucking cities need to do is say the GPS requirement is related to 'food safety/hygiene checks' and they will never lose, not even close.

 

Uh oh. I'm tempted to take this to Corporations Are People Anarchy.

Instead, I'll just take the opener to that thread here...

Should the government be able to perform a search on a corporation's property without probable cause or a warrant?

What do you think?

It's long-established that non-profit, non-pre$$ corporations like the NAACP and Citizens United have first amendment rights. Do they have fourth amendment rights?

I think it said in the press release from IJ that the "it's about safety checks" argument had been tried. The thing is, they never, ever used the GPS tracking for that purpose and always used it only for protection of fixed restaurants, so....

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Kansas v Glover will be heard on Monday.

Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked?
 

Quote

 

...At trial, Glover moved to suppress all the evidence growing out of the traffic stop on the ground that the traffic stop violated the Fourth Amendment’s prohibition against unreasonable seizures because Mehrer lacked reasonable suspicion that a crime had been committed. The trial judge suppressed the evidence, remarking that, in her family, all three cars were registered in her name, yet two of them were mostly driven by her husband and daughter. After a Kansas intermediate appellate court reversed, the Kansas Supreme Court reinstated the suppression order. It found that, without additional evidence, Mehrer’s assumption that the owner was driving was unjustified. Allowing an officer to assume that an owner with a revoked license was driving would effectively relieve the state of its burden to demonstrate reasonable suspicion, the state supreme court concluded....


 

I hadn't noticed the bolded part. Makes me wonder whose names are on SCOTUS family vehicles.

 

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3 minutes ago, Hypercapnic Tom said:

Kansas v Glover will be heard on Monday.

Argument preview: Can the police stop a vehicle because its registered owner’s license has been suspended or revoked?

I hadn't noticed the bolded part. Makes me wonder whose names are on SCOTUS family vehicles.

This is actually at least an intellectually interesting discussion:

"In this case, according to the state, Mehrer knew that the truck was registered to someone whose license had been revoked. Based on common sense, and in the absence of contrary evidence, he was entitled to assume that the owner was driving. Therefore, “the totality of these circumstances provided a sound basis to initiate the stop to confirm or dispel the suspicion that Glover was violating Kansas law.” Indeed, invoking a phrase from the landmark 1968 stop-and-frisk decision Terry v. Ohio, the state insists that it would have been “poor police work” for Mehrer to have let the truck drive on. Such investigatory stops are reasonable because they promote the “vital interest in ensuring roadway safety,” which they accomplish by verifying that only currently licensed drivers operate vehicles on public roads.

Citing studies, the state asserts that there are only (on average) two to three drivers per registered automobile in Kansas, meaning that “the likelihood that the registered owner of a vehicle in Kansas is driving his or her vehicle is no less than 33 percent.” This surely qualifies as “reasonable suspicion,” which the state insists requires no more than a five- to 10-percent likelihood, based on Fourth Amendment precedent. Moreover, the state and its supporting amici cite a different study showing that as many as 75 percent of drivers with suspended licenses continue to drive."

--------------

Yea, this one I might actually follow.  I've always thought 'probable' meant greater than 50% but apparently that's an order of magnitude too high, legally speaking.

 

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7 minutes ago, cmilliken said:

I've always thought 'probable' meant greater than 50% but apparently that's an order of magnitude too high, legally speaking.

Probable cause and reasonable suspicion only sound similar. They're not.

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7 minutes ago, Hypercapnic Tom said:

Probable cause and reasonable suspicion only sound similar. They're not.

This is why you need a lawyer if you're ever in court - at least initially.  It's a made up language with different definitions that only SOUNDS like English.

I'd much rather the law be practiced in Latin. That way there would be less confusion.  You'd KNOW you had no clue what they were actually saying.

 

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  • 2 weeks later...
On 7/26/2018 at 6:06 AM, Plenipotentiary Tom said:
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

At last, some good news along the border.

Judge Rules Feds Need Reasonable Suspicion Before Searching Tech Devices at the Border
 

Quote

 

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) sued in 2017 on behalf of 11 travelers—10 American citizens and one permanent resident—who had been ordered by Department of Homeland Security officials to let them review and copy the contents of their devices without any sort of warrant or explanation of what agents were looking for.

Customs and Border Patrol (CBP) and Immigration and Customs Enforcement (ICE) officials have long been arguing the authority for these warrantless searches on the basis of the so-called "border search exception." Courts have traditionally ruled that America's sovereign interest in controlling what and who it allows to enter its borders permits officials to search people and property coming into the country (or within 100 miles of a border) without needing a warrant or any sort of suspicion.

 

Always glad to see corporations like the ACLU engaging in first amendment-protected expre$$ion.
 

Quote

 

The ACLU and EFF have been fighting these violations of privacy, and lawmakers like Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) have been proposing legislation to mandate warrants for tech searches.

In a 48-page decision in Alasaad v. McAleenan handed down Tuesday, Judge Denise J. Casper of the U.S. District Court of Massachusetts ruled that there are limits to the extent that officials can engage in warrantless, suspicionless border searches, and these intrusive tech searches cross the line, violating the Fourth Amendment rights of the plaintiffs. While it's true Americans should expect less privacy at the border, it doesn't mean they have absolutely none.

In the ruling, Casper notes that, unlike border searches of property and vehicles looking for contraband people might be trying to smuggle into the country, these tech searches are typically about accessing data that officials argue may alert them to criminal activity. But that's similarly true of the data of tech devices once they're inside the country, and police still need to get warrants to search them.

 

Considering the number of states in the pic above that consist mostly or entirely of "the border" I think that last observation is pertinent.

Quote

Casper further notes, on a more technical level, that these tech searches are not "routine" because of the exceptionally intrusive nature of looking through a person's phone or laptop, compared to searching somebody's luggage or vehicle. Some of the data officials accessed through the plaintiffs' tech devices included confidential communications with attorneys, email and text message histories, and troves of deeply personal information. Some plaintiffs' devices were seized and kept for weeks before they were returned—after border officials had copied the contents of the files into their own systems.

Casper writes in her ruling that the Supreme Court decision in Riley v. California is "particularly instructive." In that 2014 case, the Supreme Court ruled unanimously that police need to get a search warrant to look through the contents of the cell phone of a person they've arrested. DHS does not want that ruling to extend to border tech searches, which is why they're leaning so heavily on the border exception. The Riley ruling rejected the idea that a search of a phone is no different from a search of a person's body and possessions when they're arrested. Similarly, Casper is rejecting the idea that searching a phone at the border is no different from looking through somebody's luggage for drugs.

It's hard to see how an email that was sent years ago to an accountant or attorney about personal information is in any way relevant to crossing the border today. So the border exception applies to such an email... why again?
 

Quote

 

In the end, Casper denies the plaintiffs' request to force the feds to expunge all the data they've collected from their tech devices. But she does declare that the current guidelines for border tech searches by CBP and ICE violate the Fourth Amendment rights of the plaintiffs because the guidelines require no reasonable suspicion that the devices contain contraband to justify extensive searches and seizing the devices and copying of the contents. But she stops short of putting in place an actual injunction prohibiting the feds from continuing these searches while DHS considers its options.

It seems obvious that this case will be fought all the way to the Supreme Court. For now, the ACLU and EFF are celebrating the ruling. The two organizations put out a joint statement

 

I join them in celebrating but it does seem like a pretty limited victory without an injunction stopping the searches.

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  • 2 weeks later...

Video Doorbells and the Fourth Amendment

Amazon has Ring and Google has Nest Cam IQ.
 

Quote

 

The Amazon-owned security firm Ring wants to let police know what's happening in your neighborhood. Law enforcement agencies that sign up are provided with a web-based map showing which homeowners have installed Ring doorbell cameras. They can request access to recorded videos—bypassing that pesky step of obtaining a search warrant first.

"We just like the fact that Ring wants to work with law enforcement and the citizens and bring us into the same forum to try to keep our community safe," Tony Botti, public information officer for the Fresno County Sheriff's Office in California, told Government Technology. "It lessens the work we have to do; maybe we have to knock on a few less doors to get the video."

When police use Ring's so-called Law Enforcement Neighborhood Portal to request archived footage, customers in that area receive an alert: "Sharing your Ring videos is absolutely your choice, and none of your information has been shared with law enforcement. However, if you'd like to take direct action against crime in your community, this is a great opportunity…."

 

I really see no problem with that. Cops can ask to see something that might require a warrant any time they want, as long as saying no is a viable option.

Quote

Ring has been exceptionally secretive about its relationship with law enforcement, insisting on contracts that limit what government agencies may disclose. What has become public—thanks to public records requests by journalists and a handful of leaks—suggests that the company has enlisted police as de facto salespeople by providing camera "credits" in exchange for sales efforts. One confidential agreement obtained by Motherboard says that for every resident who downloads Ring's "neighborhood watch" app, local law enforcement receives a $10 credit toward the purchase of free Ring cameras.

Turning cops into commissioned salespeople in government uniforms seems problematic to me.

Quote

Headlines across the country have described this arrangement as creating a massive surveillance network. In cities dotted by many Ring cameras (or competitors such as Nest, Canary, and Arlo), law enforcement can probably reconstruct a pedestrian's movements from the time he enters a neighborhood until he exits.

Again, the problem is? If people want to put cameras on their property and share the video with cops, I can't see one.

Quote

A wiser—and constitutional, if that matters anymore—approach would be to regulate police use of residential video surveillance. This could include disclosing the contours of surveillance "partnerships," creating administrative safeguards to limit abuses, defining when a search warrant is required before requesting video, and publishing an annual transparency report. Privacy-sensitive homeowners might opt to store video recordings locally, which makes it more difficult for police to access them surreptitiously. This is not merely a theoretical concern: In 2017, a postal inspector obtained a court order instructing Google to hand over data from a Nest camera without the advance knowledge or consent of the camera's owner. The company complied.

I agree with disclosing the partnerships. Having to run police PR statements by Amazon seems wrong, as does paying police commissions for product sales.

I don't see why a warrant should be needed if police want to ask a property owner for data. OTOH, asking a tech company for data and not telling the property owner, as in that last example, seems like something that should require a warrant.

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The "border search" exception reaches the 4th Circuit in US v Raymond Idemudia Aigbekaen
 

Quote

 

DIANA GRIBBON MOTZ, Circuit Judge:

In April of 2015, a minor alerted law enforcement officers that Raymond Idemudia Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states.  As part of  the  investigation  that  followed,  when  Aigbekaen  returned  to  the  United  States  from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices.  The Government subsequently charged Aigbekaen with sex trafficking and related crimes, and at the conclusion of a nine-day trial, the jury convicted him of these crimes.

Aigbekaen appeals, arguing primarily that the warrantless forensic searches   of his digital devices violated  the  Fourth  Amendment.    The  Government  counters  that  the searches fell within the “border search”   exception to the warrant requirement and that, in any event, suppression is not appropriate.  We agree with Aigbekaen that the border search exception does not extend to the challenged searches, rendering them unconstitutional.  But we agree with the Government that the good-faith exception to the exclusionary rule bars suppression.  Accordingly, we affirm.

 

The "border search" exception didn't apply, said the 4th, because the search was "nonroutine" and had nothing to do with border security.

Quote

to conduct such an intrusive and nonroutine search under the border search exception (that is, without a warrant), the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.

They didn't buy the "well he might have had child porn" argument. They also didn't buy the "his devices are tools of his illegal trade" argument.

Aigbekaen's conviction was upheld despite the 4th amendment problem because:

Quote

In this case, the HSI agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an “established and uniform body of precedent allowing warrantless border searches of digital devices.”

Another way of saying that would be "because nonroutine searches are routine." Hmmm...

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  • 2 months later...

Not cellphone related but an interesting article on a fourth amendment case.

The Role of Originalism in Torres v. Madrid

Quote

In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure."  The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her.  The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away.  Was the shooting that injured her a Fourth Amendment "seizure"?

It's a weird question but the article is right that the common law history surrounding (and maybe defining it) is exceedingly weird.

Back in da day, if a prisoner escaped, the constable who was supposed to detain him got in trouble. Not the prisoner.

So the question the article addresses is: do we act like that has not changed when it has changed a whole lot?

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On 7/26/2018 at 6:06 AM, Plenipotentiary 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

Greyhound got tired of "border" searches of its customers
 

Quote

 

For years Greyhound, by far the largest operator of intercity bus service in the United States, has routinely allowed Border Patrol agents to board its buses without warrants or probable cause. During those "transportation checks," which have become increasingly common under the Trump administration, agents interrogate passengers with brown skin or foreign accents, asking for proof that they are in the country legally. Last Friday, Greyhound announced that it would no longer tolerate such harassment of its customers, reversing a policy that was based on an unconstitutionally broad understanding of the Border Patrol's legal authority.

...

Greyhound's reversal is based on a more specific internal CBP memo that the Associated Press recently obtained. "When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company's owner or one of the company's employees," Border Patrol Chief Carla Provost says in that January 28 memo.

"We welcome the clarity that this change in protocol brings, as it aligns with our previously stated position, which is that we do not consent to warrantless searches," Greyhound said. "We are providing drivers and terminal employees with updated training regarding this policy change." The company said it would put signs on its buses "clearly displaying our position" and send "a letter to the Department of Homeland Security formally stating we do not consent to warrantless searches on our buses and in terminal areas that are not open to the general public."

The ACLU welcomed Greyhound's new policy. "We are pleased to see Greyhound clearly communicate that it does not consent to racial profiling and harassment on its buses," said Andrea Flores, deputy director of policy for the ACLU's Equality Division. "By protecting its customers and employees, Greyhound is sending a message that it prioritizes the communities it serves. We will continue to push other transportation companies to follow its leadership."

 

I join ACLU Inc in applauding the new policy.

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Open fields and the fourth amendment
 

Quote

 

Camden, Tenn.—Terry Rainwaters lives, farms and hunts on the 136 acres he owns along the Big Sandy River in rural Tennessee. It’s clear that the farm is private property, with a “no trespassing” sign on the gate. Yet agents of the Tennessee Wildlife Resources Agency (TWRA) ignored that warning, entering his property to set up and retrieve cameras that they used to watch for hunting violations. Now, Terry and another property owner, Hunter Hollingsworth, are teaming up with the Institute for Justice (IJ) to sue the TWRA, asking the court to protect their right—and the rights of all Tennesseans—not to be subject to warrantless searches.

“In America, private land is not open to public officers,” said IJ nutjob Joshua Windham. “That’s especially true under the Tennessee Constitution, which requires state officers in every corner of the state, from the city to the country, to get a warrant before searching private property.”

...

 

Sort of cellphone related, as I noticed last time I replaced my trail camera that you can get them with a cellphone and a subscription so they beam images home to you instead of having to go out and get the card out as I do with mine.

Mr Rainwaters is right that this is a warrantless search and that it's dangerous to have unknown trespassers wandering around where people are hunting, even if they're game wardens. OTOH, we have seasons and bag limits on lots of wild game for good reasons and if game wardens can't look where the action is, they can't enforce those rules. Not so sure I'm down with the nutjobs at IJ on this one but glad they're doing that nutty, annoying thing where they insist on governments playing by rules.

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Gathering evidence from a phone is a search

Yes, even a peek at the lock screen.
 

Quote

 

...

Usually when the topic of a phone search comes up in court, the question has to do with unlocking. Generally, courts have held that law enforcement can compel you to use your body, such as your fingerprint (or your face), to unlock a phone but that they cannot compel you to share knowledge, such as a PIN. In this recent case, however, the FBI did not unlock the phone. Instead, they only looked at the phone's lock screen for evidence.

A man from Washington state was arrested in May 2019 and was indicted on several charges related to robbery and assault. The suspect, Joseph Sam, was using an unspecified Motorola smartphone. When he was arrested, he says, one of the officers present hit the power button to bring up the phone's lock screen. The filing does not say that any officer present attempted to unlock the phone or make the suspect do so at the time.

In February 2020, the FBI also turned the phone on to take a photograph of the phone's lock screen, which displayed the name "Streezy" on it. Sam's lawyer filed a motion arguing that this evidence should not have been sought without a warrant and should therefore be suppressed.

District Judge John Coughenour of the US District Court in Seattle agreed. In his ruling, the judge determined that the police looking at the phone at the time of the arrest and the FBI looking at it again after the fact are two separate issues. Police are allowed to conduct searches without search warrant under special circumstances, Coughenour wrote, and looking at the phone's lock screen may have been permissible as it "took place either incident to a lawful arrest or as part of the police's efforts to inventory the personal effects" of the person arrested. Coughenour was unable to determine how, specifically, the police acted, and he ordered clarification to see if their search of the phone fell within those boundaries.

...

 

I wonder why "Streezy" was evidence? And of what?

If the FBI had some reason to want a picture of it, seems like they could have taken that reason to a judge and gotten a warrent.

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  • 4 weeks later...

Panicdemic Is No Excuse for Suspicionless Searches of Electronic Devices at the Border

Not that one is needed, since the "border exception" has kind of swallowed the rule on this issue.
 

Quote

 

...

The exception can be traced to the Collection Act of 1789, which authorized customs officers to search ships that they reasonably suspected to be smuggling dutiable goods. The statute is considered one of the best guides to the meaning of the Fourth Amendment because it was enacted by the same Congress that proposed the Bill of Rights to the state legislatures. In its first decision addressing the exception, Boyd v. United States, the Supreme Court explained that the category of searches and seizures contemplated as reasonable by that Congress was narrow. The Court was especially concerned about private papers, drawing a bright line between what the government may search for and seize—"goods liable to duties and concealed to avoid the payment thereof"—and what it may not—"a man's private books and papers."

...

In its landmark 2014 decision Riley v. California, the Supreme Court held that "officers must generally secure a warrant before conducting" "searches of data on cell phones." In that case, the state of California argued that officers should be permitted to search electronic devices without a warrant whenever they arrest someone. The Court disagreed. Although it makes sense to search a suspect for weapons that might harm an officer or evidence the suspect might destroy, the same can't be said for searching a suspect's cellphone. The Court concluded that whatever interests the government might have in searching a cellphone would be far outweighed by the violation of a suspect's substantial privacy interests caused by such a search. Cellphones, the Court explained, have "immense storage capacity" and can be used to reconstruct "the sum of an individual's private life." The Court continued, "it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate." And the Court's "answer to the question of what police must do before searching [a] cell phone seized incident to an arrest [was] accordingly simple—get a warrant."

But Riley concerned searches conducted in the interior of the country, not at the border. Post-Riley, several federal appellate courts have considered whether the result should be any different for searches conducted at the border, where governmental powers are at their zenith and an individual's privacy expectations are at their lowest ebb. The Supreme Court has never addressed that question, and circuit courts are split on it.

 

It's worth noting again that "the border" is the area in red:

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

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On 4/15/2020 at 8:50 PM, Cacoethesic Tom said:

Open fields and the fourth amendment
 

Sort of cellphone related, as I noticed last time I replaced my trail camera that you can get them with a cellphone and a subscription so they beam images home to you instead of having to go out and get the card out as I do with mine.

Mr Rainwaters is right that this is a warrantless search and that it's dangerous to have unknown trespassers wandering around where people are hunting, even if they're game wardens. OTOH, we have seasons and bag limits on lots of wild game for good reasons and if game wardens can't look where the action is, they can't enforce those rules. Not so sure I'm down with the nutjobs at IJ on this one but glad they're doing that nutty, annoying thing where they insist on governments playing by rules.

TWRA's motion to dismiss was denied.

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On 2/10/2020 at 7:52 PM, Cacoethesic Tom said:

Not cellphone related but an interesting article on a fourth amendment case.

The Role of Originalism in Torres v. Madrid

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In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure."  The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her.  The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away.  Was the shooting that injured her a Fourth Amendment "seizure"?

It's a weird question but the article is right that the common law history surrounding (and maybe defining it) is exceedingly weird.

Back in da day, if a prisoner escaped, the constable who was supposed to detain him got in trouble. Not the prisoner.

So the question the article addresses is: do we act like that has not changed when it has changed a whole lot?

More on Torres v Madrid.

Civil Rights Groups Remind Supreme Court: Police Can Violate Constitutional Rights Even If They Don’t Kill or Disable You
 

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...The Institute for Justice and a coalition of civil liberties and civil rights groups across the philosophical spectrum filed a friend-of-the-court brief urging the Court to hold that death or incapacitation is not a prerequisite to constitutional scrutiny of police officers’ use of force.

...

The 10th U.S. Circuit Court of Appeals held that, because the gunshots into her back did not immediately terminate her movement, Torres was never “seized” by the officers’ intentional use of deadly force. Therefore, the lower court held, the Fourth Amendment—which protects against “unreasonable searches and seizures”—was not even applicable.

The 10th Circuit’s rule cannot be squared with judges’ basic duty to evaluate the constitutionality of police conduct without creating artificial immunities and other barriers to accountability. So the Institute for Justice joined the ACLU, the ACLU of New Mexico, the Center for Constitutional Rights, the Leadership Conference on Civil and Human Rights, and the National Police Accountability Project to urge the U.S. Supreme Court to reverse this dangerous holding.

The groups’ amicus brief argues that the 10th Circuit’s rule is inconsistent with prior Supreme Court precedent and basic Fourth Amendment principles. It also demonstrates that under the 10th Circuit’s rule, police officers are effectively immunized from constitutional scrutiny and accountability when they use common forms of physical force that may not have the effect of immediately killing or incapacitating their victims—including gunshots, tasers, billy clubs, batons and closed fists. As shown in the brief, that cannot be squared with the text or purpose of the Fourth Amendment, which protects against all unreasonable physical intrusions on bodily autonomy.


 

The 4th also as emanations and penumbras of privacy that protect Her Body, Her Choice to flee from what Roxanne Torres thought were carjackers.

 

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On 8/20/2019 at 7:17 AM, Cacoethesic Tom said:

Another Federal Court Allows Warrantless Cellphone Searches at U.S. Border

The court did disallow some of the evidence obtained from the phone so the Cano case is a bit better than the earlier Vergara one.

...

Cano Update
 

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The panel denied a petition for rehearing and denied on behalf of the court a petition for rehearing en banc.

Judge Bennett, joined by Judges Callahan, M. Smith,R. Nelson, Bade, and Van Dyke, dissented from the denial ofrehearing en banc. Judge Bennett wrote that under the panel’s decision, border officials in this circuit are now constitutionally barred from forensically searching a traveler’s cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related crimes; or evidence of non-child pornography contraband.

 

 

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Wise Latina Invokes Scalia In Torres v Madrid
 

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...

The Supreme Court heard oral arguments in Torres v. Madrid on October 14. "Roxanne Torres was not seized by either [Officer] Janice Madrid or [Officer] Richard Williamson," New Mexico lawyer Mark Standridge told the justices. "At no time did the officers acquire possession, custody, or control over her. Indeed, [Torres] never stopped in response to the police action. As the officers did not seize [Torres], they cannot be held liable to her for excessive force in violation of the Fourth Amendment."

Unsurprisingly, the Court's most hawkish Fourth Amendment advocate, Justice Sonia Sotomayor, did not seem to find that position particularly palatable. "Counsel, there is an element to the Fourth Amendment that all of our cases, including Hodari, recognized by Justice Scalia," she said, "that has to do with the Fourth Amendment's protection of bodily integrity. It is why we call putting a needle in someone's arm a seizure that requires either probable cause or exigent circumstances, et cetera."

And that conception of bodily integrity, Sotomayor continued, includes "the seizure of the person with respect to the touching of that person because even a touch stops you. It may be for a split second, but it impedes your…movement and offends your integrity."

What you are asking the Court to do, Sotomayor told Standridge, is "reject the clear line drawn by Hodari and say that Justice Scalia was wrong about what the common law showed." Sotomayor left little doubt that she was with Scalia on that one.

 

Torres stopped at a hospital in response to the police action.

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Cellphones and the Michigan Amendment
 

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Michigan voters Tuesday night had a message for police: Get a warrant. Yes, for their phones, too.

Voters overwhelmingly approved Michigan Proposal 2. The referendum, put to the ballot by lawmakers, amends the state constitution to add "electronic data and electronic communications" to the state's search and seizure laws.

With 88 percent of the vote counted, Michigan voters approved the protections. The measure passed with 88 percent of the vote, more than 3.8 million votes of support.

...

 

Good for them!

Only 88%? Oh well, not sure what the rest are thinking but glad they lost.

 

 

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Not cellphone-related but Lange v California presents an interesting question for SCOTUS.
 

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QUESTION PRESENTED

Whether pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor offense categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

 

Mr Lange was (drunkenly) driving home, playing loud music, and honking his horn. A cop saw this but did not know about the drunken part. He tried to stop Lange for the noise violations. Lange got home and drove into his garage and tried to close the door. The cop stuck his foot in front of the garage door sensor, causing it to reopen. Lange was quickly facing (another) DUI.

Disturbingly, there is a chorus of amici trying to interfere in this case. At least, I hear that kind of thing is sometimes disturbing.

Dec 10 2020 Amicus brief of Institute for Justice submitted.
Dec 11 2020 Amicus brief of American Civil Liberties Union, et al. submitted.
Dec 11 2020 Amicus brief of National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice submitted.
Dec 11 2020 Amicus brief of National College for DUI Defense submitted.
Dec 11 2020 Amicus brief of Constitutional Accountability Center submitted.
Dec 11 2020 Amicus brief of DKT Liberty Project, Law Enforcement Action Partnership, Reason Foundation, and Due Process Institute submitted.
Dec 11 2020 Amicus brief of Project for Privacy & Surveillance Accountability and Restore the Fourth, Inc. submitted.
Dec 11 2020 Amicus brief of The Rutherford Institute submitted.
Dec 11 2020 Amicus brief of Gun Owners of America, Gun Owners Foundation, Gun Owners of California, DownsizeDC.org, Downsize DC Foundation, Conservative Legal Defense and Education Fund, and Restoring Liberty Action Committee submitted.

Dec 11 2020

Amicus brief of States of Illinois et al. submitted.

 

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Nutty press release on the Lange case
 

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...

“The Fourth Amendment protects our right to be secure in our property, which means both safe and free from fear that the police will enter without warning or authorization,” said Joshua Windham, IJ nutjob and lead author of IJ’s brief in Lange. “A rule that allows police to burst into your home whenever they think they saw you commit a harmless offense turns that right on its head. We call on the Court to correct the lower court’s error and clarify that only true emergencies rooted in actual facts can justify warrantless home entries.”

“The Founders wrote the Fourth Amendment to make us secure in our persons and property,” explained IJ Senior Nutjob Robert Frommer, who heads up IJ’s Fourth Amendment work.  “But the lower court’s decision treats our security as little more than a speed bump for law enforcement.”

“The Supreme Court should reverse this terrible decision and instruct lower courts that their top priority is to secure peoples’ constitutional rights, not merely to rubberstamp whatever actions the government has taken in the name of convenience for law enforcement.” said Scott Bullock, president and general nutjob for the Institute for Justice.

 

 

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Dissent in the Mixton case in Arizona
 

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...

In fact, Bolick wrote, those federal precedents should have had no sway in the present case. When the Arizona Constitution was adopted in 1912, Bolick noted, the term "private affairs" was widely understood "to broadly encompass personal and business matters, even if transmitted through third parties, thus making Arizona's constitutional provision irreconcilable with the later-emerging federal 'third-party' doctrine allowing any information divulged to a third party to be obtained by the government without a warrant."

In short, the framers of the Arizona Constitution "aimed, as plainly as they could, to protect our private affairs from unsupervised government scrutiny." Unfortunately, thanks to "the majority's non-textual opinion," Bolick concluded, that meaning has been drained "from this essential constitutional protection."

The Arizona Supreme Court's decision in Arizona v. Mixton is available here.

 

 

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Why won't anyone talk to me?

 

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3 hours ago, SloopJonB said:

Why won't anyone talk to me?

 

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I'm happy to be educated on this stuff. Unlike a lot of Tom's stuff, this has a lot of relevance IMO.

FKT

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17 hours ago, Fah Kiew Tu said:

I'm happy to be educated on this stuff. Unlike a lot of Tom's stuff, this has a lot of relevance IMO.

FKT

I do always try to post in the relevant thread, a practice that seems to irritate people for some reason I can't fathom.

But your comment does leave me wondering: relevant to an Aussie? You don't have a fourth amendment at all.

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