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Cellphones and the 4th Amendment


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On 4/15/2020 at 8:50 PM, Lochnerian 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.

That case is still ongoing and now there's a new open fields case in Pennsylvania.
 

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Both clubs have gone to great lengths to mark their land as private. There are “No Trespassing” signs and purple paint marks (which command intruders to stay out) posted along the property lines and throughout the properties. There are locked gates at all the entrances. But that hasn’t stopped the officers from entering and snooping around whenever they please.

“There are certain things you think you have as a property owner. You have No Trespassing signs, you expect privacy, and yet this guy’s walking in camo on your property like he owns the place,” Jon Mikesell said. “Do we have any rights?”

These wildlife officers think they can treat private land like public property because the Pennsylvania Supreme Court said they could in a 2007 ruling. In Commonwealth v. Russo, the Court held that the state Constitution’s provision against warrantless searches does not apply to private land. This flatly misreads the Pennsylvania Constitution, which has unique text protecting “possessions”—including private land—from such intrusions.

“Russo was wrong,” IJ Nutjob James Knight said. “Pennsylvania’s constitutional text and history make clear that private land deserves strong protection from warrantless intrusions—and we intend to prove it.”

...

 

Still 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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And Oz isn’t far behind when the Federal Police can raid the National Public broadcaster in the name of “national security”....

Not this one.

wait... what? testing, testing... 22 dogballs  

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Not cellphone related at all, but who really needs more than one fourth amendment thread?

If you're handcuffed face down on the ground with a cop pointing a gun at your back, are you under arrest?

Nutjobs say yes, 4th Circuit says no, we'll see what, if anything, SCOTUS says.
 

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The district court agreed and found that the officer had violated the boys’ Fourth Amendment rights, writing that “handcuffing two boys laying facedown on the ground, at gunpoint,” was “more intrusive than necessary.” But the 8th U.S. Circuit Court of Appeals, in a divided opinion, found that the boys had never been “arrested” at all. Instead, it said that what constitutes an arrest “can be hazy,” and that the officer’s conduct did not violate the Fourth Amendment.

Now, with the help of IJ, Cassi and her boys have asked the United States Supreme Court to take up their case. Today they filed a Petition for Certiorari asking the Court to rein in the ever-expanding doctrine of “stop and frisk” and make clear that the Fourth Amendment protects citizens from being arrested without probable cause.

“Through silence and inaction, the Supreme Court has allowed the doctrine of ‘stop and frisk’ to morph into ‘stop, drop, handcuff, and hold at gunpoint,’” said IJ Senior Nutjob Robert McNamara.

...

 

 

 

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  • 3 months later...
On 5/27/2021 at 8:39 AM, Pertinacious Tom said:

I decided it was time to get around to reading the cert petition in Merchant v Mayorkas.

Geez. 377 pages. Maybe some other day.

I think SCOTUS reacted the same way. Cert denied a month later.

But whether or not the fourth amendment applies at the border is not the only privacy-related question still in play. Just as a refresher, this is the border:

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

But your car is also a fourth amendment-free zone.

Your Car Is Spying on You, and a CBP Contract Shows the Risks
 

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Anyone who’s taken a spin in a new-ish vehicle and connected their phone — whether to place a hands-free call, listen to Spotify, or get directions — has probably been prompted to share their entire contact list, presented as a necessary step to place calls but without any warning that a perfect record of everyone they’ve ever known will now reside inside their car’s memory, sans password.

The people behind CBP’s new tool are well aware that they are preying on consumer ignorance. In a podcast appearance first reported by NBC News last summer, Berla founder Ben LeMere remarked, “People rent cars and go do things with them and don’t even think about the places they are going and what the car records.” In a 2015 appearance on the podcast “The Forensic Lunch,” LeMere told the show’s hosts how the company uses exactly this accidental-transfer scenario in its trainings: “Your phone died, you’re gonna get in the car, plug it in, and there’s going to be this nice convenient USB port for you. When you plug it into this USB port, it’s going to charge your phone, absolutely. And as soon as it powers up, it’s going to start sucking all your data down into the car.”

In the same podcast, LeMere also recounted the company pulling data from a car rented at BWI Marshall Airport outside Washington, D.C.:

“We had a Ford Explorer … we pulled the system out, and we recovered 70 phones that had been connected to it. All of their call logs, their contacts and their SMS history, as well as their music preferences, songs that were on their device, and some of their Facebook and Twitter things as well. … And it’s quite comical when you sit back and read some of the the text messages.”

The ACLU’s Tajsar explained, “What they’re really saying is ‘We can exploit people because they’re dumb. We can leverage consumers’ lack of understanding in order to exploit them in ways that they might object to if it was done in the analog world.’”

The push to make our cars extensions of our phones (often without any meaningful data protection) makes them tremendously enticing targets for generously funded police agencies with insatiable appetites for surveillance data. Part of the appeal is that automotive data systems remain on what Tajsar calls the “frontier of the Fourth Amendment.” While courts increasingly recognize your phone’s privacy as a direct extension of your own, the issue of cracking infotainment systems and downloading their contents remains unsettled, and CBP could be “exploiting the lack of legal coverage to get at information that otherwise would be protected by a warrant,” Tajsar said.

MSAB’s technology is doubly troubling in the hands of CBP, an agency with a powerful exception from the Fourth Amendment and a historical tendency toward aggressive surveillance and repressive tactics. The agency recently used drones to monitor protests against the police murder of George Floyd and routinely conducts warrantless searches of electronic devices at or near the border.

...

 

The wires are slowly going away. My wife's new ride has wireless Carplay. I drove it yesterday. Not sure if it was talking to my phone or not.

But there's a bit of good news.

Time To Close the Car Snitch Loophole
 

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The Supreme Court has held that police generally need a search warrant to examine the information on a cellphone, to track a car by attaching a GPS device to it, and to obtain cellphone location data from service providers. But Fourth Amendment jurisprudence has not caught up with rapid advances in car technology, leaving the door open for police to extract data from vehicles without their owners' knowledge.

The Intercept reported in 2021 that U.S. Customs and Border Protection had purchased "vehicle forensics" kits that can retrieve travel data, text messages, and photos from synced devices. This workaround is likely legal, because car computers seem to fall under the "vehicle exception" to the Fourth Amendment's warrant -requirement.

Under that exception, which the Court invented in 1925 to facilitate enforcement of alcohol prohibition, police may search a car without a warrant if they have probable cause to believe they will find contraband or other evidence of illegal activity. A bill with bipartisan support in the House and Senate would prevent police from using that exception to grab information on a car's computer.

The Closing Warrantless Digital Car Search Loophole Act would require a warrant for such a search unless operating the vehicle requires a commercial driver's license. Any vehicle data obtained without a warrant could not be used as a basis for probable cause or as evidence considered by courts, grand juries, or regulatory agencies.

"The idea [that] the government can peruse digital car data without a warrant should sit next to the Geo Metro on the scrap heap of history," said Sen. Ron Wyden (D–Ore.), who introduced the Senate version of the bill along with Sen. Cynthia Lummis (R–Wyo.). The House sponsors are Reps. Peter Meijer (R–Mich.) and Ro Khanna (D–Calif.).

...

 

And almost a hundred years later, alcohol prohibition is STILL a threat to privacy. We'll be at least another century getting rid of the precedents set by the modern drug war.

 

 

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On 4/15/2020 at 8:50 PM, Pertinacious 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.

Closed fields in TN
 

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Late yesterday, the Benton County Circuit Court ruled that a statute authorizing warrantless trespassing and surveillance by Tennessee game wardens is unconstitutional. The ruling is not just a victory for Benton County landowners Terry Rainwaters and Hunter Hollingsworth, who sued with the Institute for Justice (IJ) after the Tennessee Wildlife Resources Agency (TWRA) ignored their “No Trespassing” signs by entering and installing cameras on their land. The victory also applies broadly to private land across Tennessee.

“For too long, TWRA officers have treated private land like public property—entering without permission, spying on people without a warrant, and doing it all with no meaningful oversight,” said IJ Nutjob Joshua Windham. “Thanks to the court’s ruling, Tennesseans can now rest easy knowing that they’re secure from these sorts of intrusions on their land.”

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TWRA thought that its warrantless searches were legal under the century-old federal “open fields” doctrine. In 1924, the U.S. Supreme Court held that the Fourth Amendment to the U.S. Constitution does not protect any land beyond the home and its immediately surrounding area. The Court reaffirmed the doctrine in 1984 when it held that property owners have no “reasonable expectation of privacy” on any private lands the Court deems to be an “open field.”

But the Circuit Court ruled that the law enabling the searches violates the Tennessee Constitution, which Tennessee courts have long held gives landowners more protection than the U.S. Constitution. Additionally, the court found that the law amounted to a “general warrant” that gave officials wide latitude to conduct searches. In striking down the law the court noted that “general warrants are dangerous to liberty and ought not to be granted.”

“It’s a great relief to have the court recognize that searching my property without permission and without a warrant was unconstitutional,” said Terry Rainwaters. “It’s even better to hear that the court doesn’t believe anyone else in Tennessee should have their rights violated in the same way. I’m going to sleep a little better tonight knowing that state officials have to respect my property rights.”

...

 

I remain less enthusiastic than usual about this nutjob victory, for the same reasons in my post above.

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Geofence Warrant' for All Cell Location Data From Area Near Robbery Is Ruled Unconstitutional
 

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The case stems from a 2019 bank robbery in Virginia. Police got a "geofence warrant" to find anyone who was near the scene around the time the robbery took place.

U.S. District Judge Hannah Lauck has now held that the search—which relied on cellphone data location histories—violated the Fourth Amendment's protection against unreasonable searches, since it collected information on myriad people without having any evidence of their involvement in the crime. "The warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals," wrote Lauck in her decision.

The judge stressed that she was ruling on this particular situation—not on geofence warrants broadly—and there could be a situation in which their use was constitutional.

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Civil liberties and privacy groups tend to oppose geofence warrants. But not everyone who cares about the Constitution is opposed to them.

"I hope the courts do not expand the Fourth Amendment to impede technological tools like geofences that help police conduct more accurate, less discretion-based initial investigations," wrote University of Arizona law professor Jane Bambauer in March. "With appropriate constraints, geofences and other 'suspectless search' technologies can be an integral part of police modernization and reform."

University of California, Berkeley law professor and Volokh Conspiracy blogger Orin Kerr was also critical of Lauck's ruling in this case. "I am not sure the execution of geofence warrants involve a Fourth Amendment search at all.  And if they do, then I think the Fourth Amendment standard is a lot less strict than Judge Lauck concludes it is," he wrote last month. "How the Fourth Amendment applies to geofence warrants raises some tricky issues. But I don't think [Lauck's] opinion points in the right direction to help find the answers." More here.

 

Kerr's related article says that there was no fourth amendment search because using Google location services is voluntary and not necessary for modern life, two attributes that distinguish it from the Carpenter case situation. I think he's wrong about at least the second part.

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7 hours ago, Fakenews said:

Do you get tired of talking to yourself about cell phones?

I find it interesting.

Assuming the ability, would it be acceptable for law enforcement authorities to surround a city block or 4 and insist that everyone inside that boundary provide identification, on the basis that a crime had been committed inside that boundary?

Yes or no?

FKT

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9 minutes ago, Fah Kiew Tu said:

I find it interesting.

Assuming the ability, would it be acceptable for law enforcement authorities to surround a city block or 4 and insist that everyone inside that boundary provide identification, on the basis that a crime had been committed inside that boundary?

Yes or no?

FKT

It would be interesting if not for Tedious Tom.

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1 minute ago, Fakenews said:

It would be interesting if not for Tedious Tom.

Yeah well, I tend to ignore that part as, except mostly for his gun fetish, I find the topics he posts on to be quite interesting.

FKT

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8 hours ago, Fah Kiew Tu said:

Yeah well, I tend to ignore that part as, except mostly for his gun fetish, I find the topics he posts on to be quite interesting.

FKT

When considering cellphones and the fourth amendment, as with every other issue, it's important to recognize that I sometimes say bad things about TeamD gun bans and confiscation programs, so thanks for once again bringing that into the discussion.

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4 hours ago, Pertinacious Tom said:

as with every other issue, it's important to recognize that I sometimes say bad things about TeamD gun bans and confiscation programs, so thanks for once again bringing that into the discussion.

... hence ... Tedious Tom. No matter what you choose to call yourself in the future, it's TT from here on.

I'm working on a little idea that groups TT with AJ, Hasher, random, Mikey, Gouv, and a handful of the more ridiculous Rs. Probably call it the Clueless Cohort, or Mindless Muddleheads, or PAY ATTENTION TO ME MEATHEADS. Didn't mean to leave Meat Wad out. He's in. Maybe call it the Dozen Dipshits. 

As always, watch it become about AJ forthwith.

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8 hours ago, Blue Crab said:

... hence ... Tedious Tom. No matter what you choose to call yourself in the future, it's TT from here on.

I'm working on a little idea that groups TT with AJ, Hasher, random, Mikey, Gouv, and a handful of the more ridiculous Rs. Probably call it the Clueless Cohort, or Mindless Muddleheads, or PAY ATTENTION TO ME MEATHEADS. Didn't mean to leave Meat Wad out. He's in. Maybe call it the Dozen Dipshits. 

As always, watch it become about AJ forthwith.

AJ & TT have a lot in common.

Dogballs.

FKT

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Houston City Council votes to require outdoor security cameras at certain types of businesses

 

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The new rule requires bars, nightclubs, sexually-oriented businesses, convenience stores and game rooms to install outdoor security cameras. 

 

Under the rule, these types of businesses will be required to provide video surveillance from the building exterior to the property line 24 hours a day. Business owners are also required to hand over footage to HPD within 72 hours of a request.

 

On top of this, the new rule requires convenience stores to place lighting anywhere customers are allowed.

 

Not everyone is excited for more cameras to be popping up around the city and one group even thinks the new rule is unconstitutional.

 

"The city council ignored the law. Their vote demonstrated a willingness to push aside constitutional protections and subject Houstonians to overbroad police searches," said Savannah Kumar, an attorney with the ACLU of Texas. "But a city cannot override the Constitution. We are here to help you protect your rights. If the police come knocking on your door, tell them to get a warrant, whether it’s your home or your business."

...

The ACLU of Texas believes the new policy violates the 4th Amendment of the U.S. Constitution because it requires businesses to turn over private surveillance footage without a warrant.

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I agree with the ACLU but think that's only the beginning of the problems.

There might be a lawsuit in Houston's future over this one.
 

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Today, the Institute for Justice (IJ) calls on Houston officials to repeal an Orwellian ordinance that requires various businesses to install surveillance cameras at their own cost and turn footage over to the police without a warrant.  

The City Council passed the ordinance today by a vote of 15-1, and it will go into effect in 90 days. Any business that does not comply with the ordinance would be subject to fines of $500 per day. 

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“In addition to trampling on the Fourth Amendment rights of business owners, Houston’s new law also infringes on property rights. This ordinance unfairly saddles certain businesses with thousands of dollars in new expenses to install high-definition surveillance cameras and to archive their footage so it’s available for police on demand,” said IJ Nutjob Jared McClain. 

“The decision of whether or not to install surveillance cameras at a business should be up to the owner, not law enforcement or city officials,” said IJ Senior Attorney Erica Smith Ewing. 

...

 

The quoted nutjob points to one of the other problems: forcing installation of cameras and lights might be considered an unconstitutional buyback in violation of the fifth amendment. Additionally, camera footage is copyright-protected and first amendment-protected expression and you can't force someone to express himself. So the fourth, fifth, and first amendment problems are pretty big but a bigger one is 15 to 1. Really? One person thought this a bad idea?

 

 

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