Cellphones and the 4th Amendment

Pertinacious Tom

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On the 1890 Harvard Law Review article:

Interestingly enough, the right to privacy was justified on the very grounds for which it is now so popular: technology’s encroachment on personal information.

However, the father of the right to privacy and future Supreme Court Justice, Louis Brandeis, was ahead of his time. His seminal article did not get much press—and the press it did get wasn’t all that glowing.

Interesting that privacy wasn't well received.

This is a letter from the Secretary of War, Edwin Stanton, requesting broad authority over telegraph lines; Lincoln simply scribbled on the back “The Secretary of War has my authority to exercise his discretion in the matter within mentioned. A. LINCOLN.”
The birth of the Sharpie!
 

Pertinacious Tom

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The last section, on how privacy will fade away, was kind of interesting.

For 3,000 years, most people have been perfectly willing to trade privacy for convenience, wealth or fame. It appears this is still true today.
I concluded that online privacy was impractical back in the 1990's. People understood that an email is like a postcard and encryption is like an envelope and PGP is everywhere and free, thanks to Phil Zimmermann, but they didn't care. They were not going to encrypt every email. So that trade is already decades in the past for me.

Speaking as a statistician, it is quite easy to identify people in anonymous datasets. There are only so many 5'4" jews living in San Francisco with chronic back pain. Every bit of information we reveal about ourselves will be one more disease that we can track, and another life saved.

If I want to know whether I will suffer a heart attack, I will have to release my data for public research. In the end, privacy will be an early death sentence.

Already, health insurers are beginning to offer discounts for people who wear health trackers and let others analyze their personal movements. Many, if not most, consumers in the next generation will choose cash and a longer life in exchange for publicizing their most intimate details.

What can we tell with basic health information, such as calories burned throughout the day? Pretty much everything.

With a rudimentary step and calorie counter, I was able to distinguish whether I was having sex or at the gym, since the minute-by-minute calorie burn profile of sex is quite distinct (the image below from my health tracker shows lots of energy expended at the beginning and end, with few steps taken. Few activities besides sex have this distinct shape)

I think tricking your phone into tricking your insurance company into thinking you're working out might become a thing.
 

Pertinacious Tom

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Montana has a new amendment, passed with a yuge margin.

Montana C-48, Search Warrant for Electronic Data Amendment (2022)

C-48 added language to the Montana Constitution that requires a search warrant to access electronic data or electronic communications. The amendment also states that electronic data and electronic communications would be secure from unreasonable searches and seizures.

They join Michigan and Missouri. So I guess this shows the wisdom of living in a state beginning with an M.
 

Pertinacious Tom

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Closed fields in TN



I remain less enthusiastic than usual about this nutjob victory, for the same reasons in my post above.
Mr. Hollingsworth still believes it was all worthwhile.

Wildlife Agents Placed a Camera on His Property Without a Warrant, Then Raided His Home After He Removed It

...
In exchange for the other charges being dropped, Hollingsworth pleaded guilty to one count of violating the Migratory Bird Treaty Act. He was fined $3,000 and sentenced to three years of probation and suspension of his hunting privileges.


In 2019, Hollingsworth sued the TWRA, the FWS, and Hoofman and Lock, for violating his constitutional rights. The district court threw out the case, with Chief Judge S. Thomas Anderson writing that a camera in an "open field" did not constitute a Fourth Amendment violation, and that even if it had, "defendants would still be entitled to qualified immunity." According to 1982's Supreme Court decision Harlow v. Fitzgerald, government officials are immune from civil liability as long as the conduct at issue "does not violate clearly established statutory or constitutional rights." (What, precisely, that phrase means is still up for debate.)


But in a motion brought by I.J. earlier this year against the state agency, Hollingsworth and another Camden landowner, Terry Rainwaters, successfully challenged the practice. A three-judge panel from the Benton County Circuit Court affirmed that the state's Constitution is more protective than the U.S. Constitution, and the law governing TWRA "implicate(s) constitutionally protected property" and is "facially unconstitutional." The state appealed the ruling in April.

For Hollingsworth, things can't quite go back to normal. He got his hunting license back November 6, but he says that now whenever he goes out, "I'll be extremely paranoid, because I feel that they're gonna have a vendetta out against me now, and I think that they'll be watching my every move." He says that with court costs and attorney's fees, he spent over $10,000 to plead guilty to a charge that usually carries a much smaller penalty. Besides, "I've already lost my license for three years; you can't put a price on that."


Nonetheless, he's hopeful that the circuit court ruling will stand up on appeal. "It was a long three years, but the three years was worth it as long as the ruling holds that they can't come on private property without a warrant. There's enough people that will benefit from that, that it was worth losing my license for three years and it was worth the $10,000."


Windham, the Kochy Nutjob, is also optimistic not only that the TWRA case will survive, but that it signals a path forward. "The most promising frontier, in terms of how to curb the government's currently-unlimited power to invade private land, is to start with state constitutional litigation and state legislatures."
...

This reminds me. I was going to move my game camera out to the gate to see how the heck the coons are getting in the trash. Maybe I'll hang a No Trespassing sign while I'm out there. I've got one of the gag ones that says "violators will be shot, survivors will be shot again."
 

Pertinacious Tom

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Geofencing Warrants Are a Threat to Privacy

Geofence warrants do seem an awful lot like general warrants and we did write a whole amendment about those once...

The House committee investigating the events of January 6, 2021, is nearly finished with its work, and a jury convicted a key figure in the attack on the Capitol of seditious conspiracy this week. Nearly 900 other criminal prosecutions of alleged rioters remain underway, and one case has shed troubling new light on how the FBI investigated these defendants.


The suspect's name is David Rhine, and what makes his case unique, per Wired and Emptywheel, is his lawyer is the first to present a potentially successful challenge to the geofencing warrant the FBI used to place some defendants inside the Capitol building during the attack.


A previous Wired report last year found 45 federal criminal cases citing the warrant, which required Google to provide the FBI with data on devices using its location services inside a set geographic area—in this case, in or very near the Capitol. Rhine's case has revealed just how expansive the FBI's request to Google really was.

...

In about 50 cases, Wired notes, "geofence data seems to have provided the initial identification of suspected rioters." Rhine is technically not among them—the FBI got a tip he'd been at the attack—but it was only through the geofencing warrant that agents were able to find surveillance footage showing him inside the building.


And that gets us to what's troubling here: The Fourth Amendment requires search warrants to specify "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A geofencing warrant arguably allows law enforcement to work backward, to say, We think a crime was committed around this place and this time. Let's sweep up location data for everyone who was there and investigate them all.


Legal experts differ on the constitutionality of this approach, but it sounds remarkably like a general warrant: "one that 'specifie(s) only an offense,' leaving 'to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.'" General warrants are exactly what the Fourth Amendment is intended to preclude.

...

Beyond the constitutional objection, there's the abrogation of privacy for everyone who isn't guilty. A geofencing warrant gives the police a map of the movements of many innocent people's phones. That map is not certain to be accurate; it does not prove that the phone's owner was the one making those movements; and even with complete accuracy and certainty, there's no guarantee police will interpret the map correctly. In 2020, for example, geofence data including a Florida man's Runkeeper records got him wrongly accused of burglary. He avoided prosecution, but the ordeal cost him thousands of dollars.


Moreover, the innocence of the crime currently under investigation is no guarantee against some part of that movement catching an officer's eye: Well, he couldn't have done the murder because he wasn't close enough, but he did go to this other house for 10 minutes at 1 a.m., and weren't we thinking the guy who lives there is dealing?


It's also easy to envision geofencing warrants undergoing the usual surveillance mission creep. Unless a challenge like Rhine's succeeds, the "January 6 cases are going to be used to build a doctrine that will essentially enable police to find almost anyone with a cellphone or a smart device in ways that we, as a society, haven't quite grasped yet," American University law professor Andrew Ferguson told Wired. Left unchecked, law enforcement could decide geofence data would come in handy while looking for a journalist's whistleblowing source, or perhaps at political protests.


That happened in summer 2020 in Kenosha, Wisconsin, when the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) used at least a dozen geofencing warrants. The stated purpose was identifying people responsible for the estimated $50 million in damage from rioting and looting, but it's inconceivable that those warrants did not also sweep up the names of peaceful protesters, to say nothing of local residents and business owners uninvolved in the unrest. Maybe demonstrators will leave their phones at home for future protests, or maybe they'll decide not to go at all.
...


The previous coverage from Wired has been good too.

Interesting that turning off your phone and/or deleting location history is useless.
 

jocal505

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Maybe I'll hang a No Trespassing sign while I'm out there. I've got one of the gag ones that says "violators will be shot, survivors will be shot again."

Hi, Dogballs. You are very upscale, remember? You could always toss that sign, just because.


We once had a thread on PA, a news account about an old coot whose house had been repeatedly burglarized. He laid out a plan to his neighbor, how the old coot would hide in a dark corner in the basement, and shoot the burglars in the lighted areas. Two cousins, a male and female, breeched the house, and after shooting the male in the basement area, he shot the female in the leg at the top of the stairs, causing her to fall down the stairs, where he finished her off with a second shot.

From your high-tone and very righteous moral system, you faulted the second shot into the woman, but not the first. Later, you called me a liar for recounting our conversation.

Care to weigh in again on the old coot's program? The old coot got life in prison.
 
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hobie1616

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Burning Man

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Hi, Dogballs. You are very upscale, remember? You could always toss that sign, just because.


We once had a thread on PA, a news account about an old coot whose house had been repeatedly burglarized. He laid out a plan to his neighbor, how the old coot would hide in a dark corner in the basement, and shoot the burglars in the lighted areas. Two cousins, a male and female, breeched the house, and after shooting the male in the basement area, he shot the female in the leg at the top of the stairs, causing her to fall down the stairs, where he finished her off with a second shot.

From your high-tone and very righteous moral system, you faulted the second shot into the woman, but not the first. Later, you called me a liar for recounting our conversation.

Care to weigh in again on the old coot's program? The old coot got life in prison.
The lesson learned here is don't break into people's houses and expect a good outcome.
 

Pertinacious Tom

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Wow. 10 years go by on this thread, and Tom makes a post. That must be a record!
Hi, Dogballs. You are very upscale, remember? You could always toss that sign, just because.


We once had a thread on PA, a news account about an old coot whose house had been repeatedly burglarized. He laid out a plan to his neighbor, how the old coot would hide in a dark corner in the basement, and shoot the burglars in the lighted areas. Two cousins, a male and female, breeched the house, and after shooting the male in the basement area, he shot the female in the leg at the top of the stairs, causing her to fall down the stairs, where he finished her off with a second shot.

From your high-tone and very righteous moral system, you faulted the second shot into the woman, but not the first. Later, you called me a liar for recounting our conversation.

Care to weigh in again on the old coot's program? The old coot got life in prison.

You didn't complain when ten years went by and Joe brought up that old thread in a completely unrelated one, did you? I'm the problem for putting the discussion back where it came from, right?
 

Pertinacious Tom

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Find My Lawsuit

An elderly Colorado woman is suing a Denver police detective who ordered a SWAT raid on her house after it was falsely pinged by Apple's "Find my" app as the location of several stolen items — including six firearms and an old iPhone — according to a lawsuit filed Wednesday.

The suit, filed in Denver District Court by lawyers with the American Civil Liberties Union of Colorado, alleges that Denver Police Department Detective Gary Staab illegally issued a warrant for the raid of the home of 77-year-old Ruby Johnson on Jan. 4, based on what the complaint characterizes as a "hastily prepared, bare-bones, misleading affidavit."

...

As always, I support the ACLU's long-established corporate first amendment right to expre$$ themselves by suing.
 

Pertinacious Tom

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This one isn't cellphone related, but is about open fields or maybe curtilage or some other 4th amendment thing. Or not. So far, not.

Months of Warrantless Video Surveillance

If police point a camera at your house and record you for eight months straight without a warrant, does the Fourth Amendment have anything to say? The 1st U.S. Circuit Court of Appeals recently said “no,” in a case called United States v. Moore-Bush. But in a new Kochy Nutbrief supporting a petition for Supreme Court review, the Institute for Justice (IJ) argues that the answer is “yes.”


IJ filed a similar brief supporting Supreme Court review in a virtually identical case out of the Seventh Circuit last year. Like last year’s case, Moore-Bush asks whether the government’s spying was a Fourth Amendment “search.”


“Common sense tells us that when police point a camera at your house and spy on you for eight months, they are searching for something,” said Kochy Nutjob Josh Windham. “But courts don’t currently take a common sense approach to this issue. Instead, they ask whether ‘society’ would find your privacy expectation reasonable—an approach that all too often produces results most Americans would find shocking.”


In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home. At the time, they suspected Moore’s daughter of dealing drugs and guns—but they needed evidence. So they watched, using the camera to record Moore and her daughter entering and leaving the home for eight straight months until, at long last, they had enough to get a warrant to search the home.


Moore and her daughter were ultimately prosecuted, and they moved to suppress the evidence acquired by the cameras. They argued that eight months of warrantless video surveillance violated their Fourth Amendment rights. But earlier this year, the First Circuit rejected that argument.


While the court was divided on why Moore and her daughter should lose, what carried the day was three judges’ conclusion that the video surveillance was not a Fourth Amendment “search.” In their view, Americans cannot reasonably expect privacy from surveillance of the outside of their homes—and that is the end of the matter.

...

Putting a camera on a pole across the street from my gate would likely get it stolen or shot, but not by me. That's just what would happen when, not if, someone else noticed it.

It would depict comings and goings of several households, including ours, but the gate is thousands of feet away and the trees have leaves again, so the camera wouldn't be able to see which residence was actually visited. Also, no one would care because I don't sell any naughty drugs.

Like many precedents that erode the Bill of Rights, this one was spawned by the stupid drug war, which continues to be stupid, but that's another thread.

As relevant to this thread, is pointing a camera at your place for 8 months a "search" or not?

One argument would be that remote surveillance cameras were not invented in 1789. It's a particularly stupid argument but has won in a state supreme court and is also another thread.

“Common sense tells us that when police point a camera at your house and spy on you for eight months, they are searching for something,” said Kochy Nutjob Josh Windham. That's the position I've been assigned today, so I agree.
 
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Pertinacious Tom

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From the Kochy Nutbrief

Forcing courts to parse so many details about how
the government is searching distracts from the fact
that matters most: that the government is searching.
From wiretapping, to thermal sensors, to GPS track-
ing, to cellphone data, the government has always
used the latest technology to look for evidence. The
fact that these technologies change over time, or that
Americans’ views on them evolve from one generation
to the next, does not change the fact that the govern-
ment is using them to search.

Until Katz is addressed, lower courts will continue
to elevate these irrelevant details for every new tech-
nology. That’s true now for pole cameras: Courts can-
not agree on whether pointing cameras at houses to
spy on people is a search because they are focused on
the red-herring details surveyed above.9 And, as the
Seventh Circuit recently noted, Katz ensures courts
will remain confused about new technologies for years
to come: “Today’s pole cameras will be tomorrow’s
body cameras, ‘protracted location tracking using [au-
tomated license plate readers],’ drones, facial recogni-
tion, Internet-of-Things and smart devices, and so
much more that we cannot even begin to envision.”

Really.
Why are we fucking around with license plate readers?

I lost a plate on my little sailboat trailer and got a new one the other day. Why doesn't it have a transponder?

Is making my license plates carry a transponder that can talk to nearby cop cars whether or not they can see it a "search" or not? It's not a question in a court yet. It will be. Possibly soon enough that this thread and I will be here.
 

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