Tag Archives: seizure

Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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Filed under civil rights, courts, discovery, electronic discovery, federal, legal decision, legal research, Privacy Rights, technology

Government settles lawsuit on warrantless home raids of immigrants

I came across this interesting settlement between the U.S. Government and nearly a dozen Latino immigrants.  The lawsuit alleged that immigration agents  committed widespread 4th Amendment violations when conducting home raids of immigrants.

One plaintiff alleged that ICE (Immigration and Customs Enforcement) agents pounded on doors before being allowed entry, swept through the homes, and terrorized the children.  The immigrants were U.S. citizens.  Another plaintiff alleged that when the home raids occurred she was 12-years old and that after busting in the ICE agents falsely told her “someone was dying upstairs.”

The District court approved of the stipulation and ordered the dismissal of the lawsuit.

Pursuant to the stipulation, the government will pay a $1 million settlement.  The settlement also provides that pending immigration proceedings will be terminated or delayed against eight (8) of the plaintiffs arrested during the raids.

Further, ICE will adopt policy changes for agents conducting warrantless home operations.  ICE agents must:

  • “seek consent to enter or search a private residence in a language understood by the resident whenever feasible;
  • they must have Spanish-speaking officers available to seek such consent when the target is from a Spanish-speaking country;
  • they must seek consent to to enter the outside areas of homes when there is a reasonable expectation of privacy, such as a backyard; and
  • they must not conduct protective sweeps through the homes without an articulable suspicion of danger.”

(bullet points added).

via Courthouse News Service.

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DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

  • The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
  • Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

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Filed under civil rights, Privacy Rights, waiver

No Probable Cause vs. 1st and 4th amendment?

This is an interesting decision, allowing the first and fourth amendment claims of Port Militarization Resistance, an anti-war group, to go ahead.

The lawsuit arose when allegedly two civilian U.S. Army employees (Towery and Rudd) spied on the anti-war members and secretly disrupted protests.  The anti-war group was protesting the use of sea ports in Washington State for shipments of military supplies to Iraq and Afghanistan.

The lawsuit alleges defendants befriended the anti-war group and “influenced and directed” tactics to disrupt protests without cause, and that defendants broke into a confidential attorney-client list serve.

The district court dismissed most of the claims, but allowed First and Fourth Amendment allegations against Towery and Rudd to go ahead, despite their motion for qualified immunity.  The Ninth Circuit Court of Appeals affirmed.

The Ninth Court stated,

“It is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment,” the unsigned and unpublished opinion from Seattle states.

“Plaintiffs have pled a plausible violation of their clearly established First Amendment rights,” the ruling states. “Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct.”

via Courthouse News Service.

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Filed under Appellate, civil rights, District Court, legal decision, Privacy Rights

Mobile Data Privacy Laws Misunderstood by Users

Smartphone users understanding of privacy laws may not be accurate, according to a recent survey by law researchers from the University of California at Berkeley. The survey considered data from 1,200 users telephoned on either a landline or a mobile phone and sought to gain insight on perceptions about privacy as it relates to data stored on mobile devices. Researchers found that over 80 percent of users surveyed believed that their mobile phone was as private at their personal computer. Further, 70 percent of users would not want their cell phone provider to use location-based data to target ads to them, nor would they wish for social networking apps to use their contact lists.

As discussed by Technology Review, most smartphone users surveyed were seemingly unaware that, during an arrest, courts have allowed the search of a cellphone just as if it were any other possession. Regarding the use of location-based data for targeted advertisement, many apps already collect location data, sometimes with the users unknowing permission, hastily and inadvertently given when accepting the conditions of a free app.

But for midsize businesses, it is the collection of users contact lists that is perhaps most troubling. Businesses have privacy policies to protect customer information, but rightly or wrongly, it is a common enough practice in industry for employees to store customer phone numbers and other sensitive information on business and sometimes even personal cellphones. A recent article in Todays iPhone says that a recent Bitdefender study of 65,000 apps showed that 18.6% access cellphone users contact list information, and only 57.5% of those apps go on to encrypt the captured data. Although the release of iOS 6 will warn users when an app wants to collect data, it is still a troubling statistic.

via Midsize Insider: Mobile Data Privacy Laws Misunderstood by Users.

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Filed under electronic discovery, Privacy Rights