Sunday, March 10, 2013

Fourth Amendment and Privacy Roundup

Here are a few items related to the Fourth Amendment and personal privacy that may interest Grits readers:

Fourth Amendment violation caught on video, Garland police supervisors don't care
At the Yale Law School conference on location tracking last week, a privacy lawyer said she'd been told that the FBI uses Stingray devices to hunt fugitives because there would never be a suppression hearing and thus no remedy for any Fourth Amendment violation. Apparently that circumstance similarly extends to local police and other Fourth Amendment violations, if the reaction by the Garland PD to a seemingly illegal search caught by surveillance cameras is any indication. An arrest warrant in hand, police went looking at the suspect's brother's house while the family wasn't home, entering the backyard, opening the door to peek in the house, rummaging through duffel bags ("maybe he's in here"), and pawing through papers found in the brother's pickup truck. Tanya Eiserer at the Dallas News has the analysis and video.

Does the Fourth Amendment still fit the 21st century?
In the ABA-Journal, UC-Irvine Law School Dean Erwin Chemerinsky details the Supreme Court's struggles to "apply a provision adopted in 1791, the Fourth Amendment, to a situation that would have been unimaginable at that time," in this case gathering DNA from arrestees and maintaining their profiles in a government database without probable cause or a warrant. He compares the case to US v. Jones, in which SCOTUS struggled to apply Fourth Amendment principles to GPS location tracking. See related comments on the DNA database case from the CATO Institute's Jim Harper.

Court limits suspicionless border searches of electronic gadgets
The federal Ninth Circuit Court of Appeals has ruled that "U.S. border agents do not have carte blanche authority to search the cellphones, tablets and laptops of travelers entering the country — a 'watershed' decision in the court’s own terms and one at odds with the policies of the President Barack Obama administration." Judge M. Margaret McKeown wrote (pdf) for the 8-3 court, “A person’s digital life ought not be hijacked simply by crossing a border.” Wired magazine called it "the most significant privacy decision in the digital age " This doctrine doesn't yet apply on the Texas border (we're in the Fifth Circuit), but clearly the feds must re-think the policy at least in the Ninth Circuit. I wonder if the government will appeal to SCOTUS?

Google gives vague window into use of national security letters
Google's latest transparency report, released last week, for the first time gives a smattering of information about "national security letters" requesting information about their subscribers. Reported Ryan Gallagher at Slate's Future Tense blog, "It was previously revealed that between 2003 and 2006, nearly 200,000 NSLs were used by the FBI to obtain information on people, with the bureau in some cases abusing them to “obtain vast quantities of telephone numbers or other records with a single request.” In late 2003, the feds reportedly issued a number of NSLs in an attempt to build “a real-time census of every visitor” to Las Vegas while pursuing an apparent terror investigation."

Can you opt out of location tracking via smart phones?
Apple has found itself on the business end of a class action lawsuit after it was discovered that the company allegedly "continued to collect data even after users turned off the tracking feature on their smartphones."

Good drone, bad drone: How to regulate them
University of Washington law prof Ryan Calo has a pair of essays - one at, the other at the blog Concurring Opinions - related to government vs. private drone use and the complexities of regulating them. He argues that, "Were privacy laws stronger in the United States, we might not worry so much about greater surveillance capacity. But very little in the way of privacy law limits the domestic use of drones." He worries that focusing too narrowly on drone technology risks "squandering an opportunity to confront our inadequate privacy doctrines." Notably, "the FAA ... has granted 1,428 drone licenses so far, saying that typical purposes for the unmanned vehicles include 'law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and other government operational missions.'" See a map showing a subset of places where the FAA has approved drone use and a list compiled by EFF, including several in Texas: Arlington PD, Houston PD, the Hays County Emergency Services Office, the Montgomery County Sheriff's Office, the Texas Department of Public Safety (though I'd thought they canceled their program), Texas A&M University, and Texas State University. Bud Kennedy at the Star-Telegram yesterday had a column, "Drone debate lands in Arlington." The website iO9 suggests that Texas' proposed drone photography legislation may go too far, limiting legitimate drone use. See also: "17 Civilian Drone Facts You Should Know."

Back to the Future: The curious case of US v. Jones
In an article with the same title as this subhed, NYU law prof Erin Murphy considers that, "Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?"

No comments: