warrants – Techdirt (original) (raw)

from the laws-may-change-but-we're-not-going-to dept

“Odor of marijuana” still remains — even in an era of widespread legalization — a favorite method of justifying warrantless searches. It’s an odor, so it can’t be caught on camera, which are becoming far more prevalent, whether they’re mounted to cop cars, pinned to officers’ chests, or carried by passersby.

Any claim an odor was detected pits the officer’s word against the criminal defendant’s. Even though this is a nation where innocence is supposed to be presumed, the reality of the criminal justice system is that everyone from the cops to the court to the jury tend to view people only accused of crimes as guilty.

But this equation changed a bit as states and cities continued to legalize weed possession. Once that happened, the claim that the “odor” of marijuana had been “detected” only meant the cops had managed to detect the odor of a legal substance. The same thing for their dogs. Drug dogs are considered the piece de resistance in warrantless roadside searches — an odor “detected” by a four-legged police officer that’s completely incapable of being cross-examined during a jury trial.

As legalization spreads, courts have responded. There have been handful of decisions handed down that clearly indicate what the future holds: cops and dog cops that smell weed where weed is legal don’t have much legal footing when it comes to warrantless searches. Observing something legal has never been — and will never be — justification for a search, much less reasonable suspicion to extend a stop.

The present has yet to arrive in the Seventh Circuit. Detecting the odor of a legal substance is still considered to be a permission slip for a warrantless search. And that’s only because there’s one weird stipulation in the law governing legal marijuana possession in Illinois.

In this case, a traffic stop led to the “detection” of the odor of marijuana. That led to the driver fleeing the traffic stop and dropping a gun he was carrying. And that led to felon-in-possession charges for Prentiss Jackson, who has just seen his motion to suppress this evidence rejected by the Seventh Circuit Appeals Court.

Here’s how this all started, as recounted in the appeals court decision [PDF]:

The officer smelled the odor of unburnt marijuana emanating from the car. He knew the odor came from inside the car, as he had not smelled it before he approached the vehicle. During their conversation about the license and registration, the officer told Jackson he smelled “a little bit of weed” and asked if Jackson and the passenger had been smoking. Jackson said he had, but that was earlier in the day, and he had not smoked inside the car.

Through the officer’s training, he knew the most common signs of impairment for driving under the influence were the odor of marijuana or alcohol and speech issues. He was also taught to look for traffic violations. Concerned that Jackson might be driving under the influence because of the head and taillight violation, the odor of marijuana, and Jackson’s admission that he had smoked earlier, the officer asked Jackson whether he was “safe to drive home.” Jackson said he was. His speech was not slurred during the interaction, and his responses were appropriate.

Now, I’m not a federal judge. (And probably shouldn’t be one, for several reasons.) But I think I would have immediately called bullshit here. According to the officer’s own statements, his “training” led him to believe things like unburnt marijuana and unlit headlights/taillights are indicators of “driving under the influence.” I would have asked for the officer to dig deep into the reserves of his “training” to explain these assertions. The only one that fits is Jackson’s admission he had smoked “earlier.” And, even with that admission, Jackson cleared the impairment test.

The officer, however, insisted he had probable cause to engage in a warrantless search of the car, based exclusively on his detection of the odor of “unburnt” marijuana. The officer told Jackson he was going to cite him for weed possession (not for the amount, but for how it was stored in the car). He also told the passenger he would make an arrest if Jackson did not “agree” to a “probable cause search.”

Jackson moved to the back of his car as ordered by the officer. Shortly before the patdown began, Jackson fled, dropping a handgun he was not legally allowed to possess.

Jackson challenged the search in his motion to suppress, arguing that marijuana legalization meant an assertion that the odor of a (legal) drug had been detected by an officer meant nothing in terms of probable cause for a warrantless search. The lower court rejected Jackson’s argument. The Seventh Circuit Appeals Court agrees with the trial court.

First, the court says marijuana, while legal in Illinois, is still illegal under federal law. And the suspicion a federal law has been broken (even if it can’t be enforced locally) is still enough to justify further questions and further exploration of a car.

Furthermore, state requirements for transporting legal marijuana in personal vehicles were not met by Jackson’s baggies of personal use weed.

[T]he [Illinois] Vehicle Code […] clearly states that when cannabis is transported in a private vehicle, the cannabis must be stored in a sealed, odor-proof container—in other words, the cannabis should be undetectable by smell by a police officer.”

That’s a really weird stipulation. It basically tells residents that in order to legally transport drugs they must act like drug smugglers. And, while I haven’t seen a case raising this issue yet, one can be sure people have been criminally charged for following the law because officers believe efforts made to prevent officers from detecting drugs is, at the very least, reasonable suspicion to extend a stop or, better yet, probable cause to engage in a warrantless search.

And this is likely why that particular stipulation (which I haven’t seen in other places where weed is legal) was included in this law: it doesn’t remove one of the handiest excuses to perform a warrantless search — the “odor of marijuana.”

The smell of unburnt marijuana outside a sealed container independently supplied probable cause and thus supported the direction for Jackson to step out of the car for the search.

That’s pretty handy… at least for cops. It allows them to “detect” the odor of a legal substance in order to treat it as contraband. And they need to do little more than claim in court they smelled it — something that’s impossible to disprove. Illinois has managed to do the seemingly impossible: it has legalized a substance while allowing law enforcement officers to treat it as illegal. That’s quite the trick. And because of that, it’s still perfectly legal to pretend legal substances are contraband when it comes to traffic stops in Illinois.

Filed Under: 4th amendment, 7th circuit, cop magic, privacy, warrants

Two Years Post-Roe: A Better Understanding Of Digital Threats

from the our-digital-reality dept

It’s been a long two years since the Dobbs decision to overturn Roe v. Wade. Between May 2022 when the Supreme Court accidentally leaked the draft memo and the following June when the case was decided, there was a mad scramble to figure out what the impacts would be. Besides the obvious perils of stripping away half the country’s right to reproductive healthcare, digital surveillance and mass data collection caused a flurry of concerns.

Although many activists fighting for reproductive justice had been operating under assumptions of little to no legal protections for some time, the Dobbs decision was for most a sudden and scary revelation. Everyone implicated in that moment somewhat understood the stark difference between pre-Roe 1973 and post-Roe 2022; living under the most sophisticated surveillance apparatus in human history presents a vastly different landscape of threats. Since 2022, some suspicions have been confirmed, new threats have emerged, and overall our risk assessment has grown smarter. Below, we cover the most pressing digital dangers facing people seeking reproductive care, and ways to combat them.

Social Media Message Logs

A case in Nebraska resulted in a woman, Jessica Burgess, being sentenced to two years in prison for obtaining abortion pills for her teenage daughter. Prosecutors used a Facebook Messenger chat log between Jessica and her daughter as key evidence, bolstering the concerns many had raised about using such privacy-invasive tech products for sensitive communications. At the time, Facebook Messenger did not have end-to-end encryption.

In response to criticisms about Facebook’s cooperation with law enforcement that landed a mother in prison, a Meta spokesperson issued a frustratingly laconic tweet stating that “[n]othing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned abortion.” They followed this up with a short statement reiterating that the warrants did not mention abortion at all. The lesson is clear: although companies do sometimes push back against data warrants, we have to prepare for the likelihood that they won’t.

Google: Search History & Warrants

Well before the Dobbs decision, prosecutors had already used Google Search history to indict a woman for her pregnancy outcome. In this case, it was keyword searches for misoprostol (a safe and effective abortion medication) that clinched the prosecutor’s evidence against her. Google acquiesced, as it so often has, to the warrant request.

Related to this is the ongoing and extremely complicated territory of reverse keyword and geolocation warrants. Google has promised that it would remove from user profiles all location data history related to abortion clinic sites. Researchers tested this claim and it was shown to be false, twice. Late in 2023, Google made a bigger promise: it would soon change how it stores location data to make it much more difficult–if not impossible–for Google to provide mass location data in response to a geofence warrant, a change we’ve been asking Google to implement for years. This would be a genuinely helpful measure, but we’ve been conditioned to approach such claims with caution. We’ll believe it when we see it (and refer to external testing for proof).

Other Dangers to Consider

Doxxing

Sites propped up for doxxing healthcare professionals that offer abortion services are about as old as the internet itself. Doxxing comes in a variety of forms, but a quick and loose definition of it is the weaponization of open source intelligence with the intention of escalating to other harms. There’s been a massive increase in hate groups abusing public records requests and data broker collections to publish personal information about healthcare workers. Doxxing websites hosting such material are updated frequently. Doxxing has led to steadily rising material dangers (targeted harassment, gun violence, arson, just to name a few) for the past few years.

There are some piecemeal attempts at data protection for healthcare workers in more protective states like California (one which we’ve covered). Other states may offer some form of an address confidentiality program that provides people with proxy addresses. Though these can be effective, they are not comprehensive. Since doxxing campaigns are typically coordinated through a combination of open source intelligence tactics, it presents a particularly difficult threat to protect against. This is especially true for government and medical industry workers whose information may be subjected to exposure through public records requests.

Data Brokers

Recently, Senator Wyden’s office released a statement about a long investigation into Near Intelligence, a data broker company that sold geolocation data to The Veritas Society, an anti-choice think tank. The Veritas Society then used the geolocation data to target individuals who had traveled near healthcare clinics that offered abortion services and delivered pro-life advertisements to their devices.

That alone is a stark example of the dangers of commercial surveillance, but it’s still unclear what other ways this type of dataset could be abused. Near Intelligence has filed for bankruptcy, but they are far from the only, or the most pernicious, data broker company out there. This situation bolsters what we’ve been saying for years: the data broker industry is a dangerously unregulated mess of privacy threats that needs to be addressed. It not only contributes to the doxxing campaigns described above, but essentially creates a backdoor for warrantless surveillance.

Domestic Terrorist Threat Designation by Federal Agencies

Midway through 2023, The Intercept published an article about a tenfold increase in federal designation of abortion-rights activist groups as domestic terrorist threats. This projects a massive shadow of risk for organizers and activists at work in the struggle for reproductive justice. The digital surveillance capabilities of federal law enforcement are more sophisticated than that of typical anti-choice zealots. Most people in the abortion access movement may not have to worry about being labeled a domestic terrorist threat, though for some that is a reality, and strategizing against it is vital.

Looming Threats

Last month, the Supreme Court heard oral arguments challenging the FDA’s approval of and regulations governing mifepristone, a widely available and safe abortion pill. If the anti-abortion advocates who brought this case succeed, access to the most common medication abortion regimen used in the U.S. would end across the country—even in those states where abortion rights are protected.

Access to abortion medication might also be threatened by a 150 year old obscenity law. Many people now recognize the long dormant Comstock Act as a potential avenue to criminalize procurement of the abortion pill.

Although the outcomes of these legal challenges are yet-to-be determined, it’s reasonable to prepare for the worst: if there is no longer a way to access medication abortion legally, there will be even more surveillance of the digital footprints prescribers and patients leave behind.

Electronic Health Records Systems

Electronic Health Records (EHRs) are digital transcripts of medical information meant to be easily stored and shared between medical facilities and providers. Since abortion restrictions are now dictated on a state-by-state basis, the sharing of these records across state lines present a serious matrix of concerns.

As some academics and privacy advocates have outlined, the interoperability of EHRs can jeopardize the safety of patients when reproductive healthcare data is shared across state lines. Although the Department of Health and Human Services has proposed a new rule to help protect sensitive EHR data, it’s currently possible that data shared between EHRs can lead to the prosecution of reproductive healthcare.

The Good Stuff: Protections You Can Take

Perhaps the most frustrating aspect of what we’ve covered thus far is how much is beyond individual control. It’s completely understandable to feel powerless against these monumental threats. That said, you aren’t powerless. Much can be done to protect your digital footprint, and thus, your safety. We don’t propose reinventing the wheel when it comes to digital security and data privacy. Instead, rely on the resources that already exist and re-tool them to fit your particular needs. Here are some good places to start:

Create a Security Plan

It’s impossible, and generally unnecessary, to implement every privacy and security tactic or tool out there. What’s more important is figuring out the specific risks you face and finding the right ways to protect against them. This process takes some brainstorming around potentially scary topics, so it’s best done well before you are in any kind of crisis. Pen and paper works best. Here’s a handy guide.

After you’ve answered those questions and figured out your risks, it’s time to locate the best ways to protect against them. Don’t sweat it if you’re not a highly technical person; many of the strategies we recommend can be applied in non-tech ways.

Careful Communications

Secure communication is as much a frame of mind as it is a type of tech product. When you are able to identify which aspects of your life need to be spoken about more carefully, you can then make informed decisions about who to trust with what information, and when. It’s as much about creating ground rules with others about types of communication as it is about normalizing the use of privacy technologies.

Assuming you’ve already created a security plan and identified some risks you want to protect against, begin thinking about the communication you have with others involving those things. Set some rules for how you broach those topics, where they can be discussed, and with whom. Sometimes this might look like the careful development of codewords. Sometimes it’s as easy as saying “let’s move this conversation to Signal.” Now that Signal supports usernames (so you can keep your phone number private), as well as disappearing messages, it’s an obvious tech choice for secure communication.

Compartmentalize Your Digital Activity

As mentioned above, it’s important to know when to compartmentalize sensitive communications to more secure environments. You can expand this idea to other parts of your life. For example, you can designate different web browsers for different use cases, choosing those browsers for the privacy they offer. One might offer significant convenience for day-to-day casual activities (like Chrome), whereas another is best suited for activities that require utmost privacy (like Tor).

Now apply this thought process towards what payment processors you use, what registration information you give to social media sites, what profiles you keep public versus private, how you organize your data backups, and so on. The possibilities are endless, so it’s important that you prioritize only the aspects of your life that most need protection.

Security Culture and Community Care

Both tactics mentioned above incorporate a sense of community when it comes to our privacy and security. We’ve said it before and we’ll say it again: privacy is a team sport. People live in communities built on trust and care for one another; your digital life is imbricated with others in the same way.

If a node on a network is compromised, it will likely implicate others on the same network. This principle of computer network security is just as applicable to social networks. Although traditional information security often builds from a paradigm of “zero trust,” we are social creatures and must work against that idea. It’s more about incorporating elements of shared trust pushing for a culture of security.

Sometimes this looks like setting standards for how information is articulated and shared within a trusted group. Sometimes it looks like choosing privacy-focused technologies to serve a community’s computing needs. The point is to normalize these types of conversations, to let others know that you’re caring for them by attending to your own digital hygiene. For example, when you ask for consent to share images that include others from a protest, you are not only pushing for a culture of security, but normalizing the process of asking for consent. This relationship of community care through data privacy hygiene is reciprocal.

Help Prevent Doxxing

As somewhat touched on above in the other dangers to consider section, doxxing can be a frustratingly difficult thing to protect against, especially when it’s public records that are being used against you. It’s worth looking into your state level voter registration records, if that information is public, and how you can request for that information to be redacted (success may vary by state).

Similarly, although business registration records are publicly available, you can appeal to websites that mirror that information (like Bizapedia) to have your personal information taken down. This is of course only a concern if you have a business registration tied to your personal address.

If you work for a business that is susceptible to public records requests revealing personal sensitive information about you, there’s little to be done to prevent it. You can, however, apply for an address confidentiality program if your state has it. You can also do the somewhat tedious work of scrubbing your personal information from other places online (since doxxing is often a combination of information resources). Consider subscribing to a service like DeleteMe (or follow a free DIY guide) for a more thorough process of minimizing your digital footprint. Collaborating with trusted allies to monitor hate forums is a smart way to unburden yourself from having to look up your own information alone. Sharing that responsibility with others makes it easier to do, as well as group planning for what to do in ways of prevention and incident response.

Take a Deep Breath

It’s natural to feel bogged down by all the thought that has to be put towards privacy and security. Again, don’t beat yourself up for feeling powerless in the face of mass surveillance. You aren’t powerless. You can protect yourself, but it’s reasonable to feel frustrated when there is no comprehensive federal data privacy legislation that would alleviate so many of these concerns.

Take a deep breath. You’re not alone in this fight. There are guides for you to learn more about stepping up your privacy and security. We’ve even curated a special list of them. And there is Digital Defense Fund, a digital security organization for the abortion access movement, who we are grateful and proud to boost. And though it can often feel like privacy is getting harder to protect, in many ways it’s actually improving. With all that information, as well as continuing to trust your communities, and pushing for a culture of security within them, safety is much easier to attain. With a bit of privacy, you can go back to focusing on what matters, like healthcare.

Originally published to the EFF Deeplinks blog.

Filed Under: abortion, data brokers, dobbs, doxxing, privacy, roe v. wade, search history, surveillance, warrants

Partisan Bullshit Tanks House Section 702 Reform Efforts

from the fuck-the-constituents dept

It took the FBI carelessly, stupidly, and unlawfully targeting members of Trump’s inner circle to make Section 702 program reform a thing that might actually happen.

It’s kind of astounding, considering the Snowden leaks provided a much better argument for reform, as well as the FBI’s long-documented history of abusing its access to Section 702 collections to engage in warrantless surveillance of American citizens.

But it wasn’t until a former Trump advisor and Trump acolyte in the House got caught up in the FBI’s dragnet that things started to look a little grim for supporters of clean reauthorization. Years of abuse was considered fine right up until it affected people who mattered… at least to themselves and the former president they idolize.

There’s been plenty of opposition to unchecked surveillance over the years, but it has almost always been led by Senator Ron Wyden. Wyden’s efforts have been shot down by his own colleagues, who have been unwilling to challenge the Intelligence Community’s claims nothing about any surveillance authority should ever be changed because terrorism.

More than two decades after the 9/11 attacks, this attitude remains in full force. But it has been made worse by hyper-partisanship — something actively encouraged by Donald Trump during his term in office and made worse by Republicans who both want to ingratiate themselves with a former president as well as show their voting base they’re doing something to address Deep State conspiracies they’ve been stoking since Trump first took office.

The thing is this could have led to meaningful reforms, even if the motivations were highly suspect. As for the FBI, it offered only two arguments in defense of its warrantless access to US persons’ communications: (1) TERRORISM!, and (2) [hilariously] pretty much all of our searches of Section 702 collections are unlawful if you bring the Fourth Amendment into it.

The vote on extending Section 702 has been pushed back several times. Reform efforts (again led by Wyden) have been mounted. The rep heading the House Intelligence Community also pushed his own set of “reforms,” but they did nothing more than provide protections to congressional members who might find themselves subjected to the FBI’s continuous surveillance abuses.

The vote in House on proposed reforms and Section 702 reauthorization has given the FBI a free pass until the next renewal. As Elizabeth Nolan Brown notes for Reason, Democrats unwilling to give Republicans what they wanted (even if it meant better protections for their constituents) overwhelmingly voted in favor of an unaltered continuation of everything that’s been abused for years.

A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.

“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”

But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.

There’s the partisan split. That’s how you end up with a tie, which means the unaltered Section 702 moves on to the Senate for a vote. Had just a few Democrats been willing to place the concerns of Americans ahead of their own antipathy towards those on the other side of aisle, a warrant requirement might have been put in place on the House side of things.

But that didn’t happen. And part of the reason that didn’t happen is because the top-ranking Democrat on the House Intelligence Committee decided to swing votes by lying to his fellow representatives. Dell Cameron brings the news and the screenshots:

Cameron’s post for Bluesky says:

The head Dem on House Intel was caught by Politico reporter blasting disinformation out to colleagues ahead of a vote on the 702 wiretap program

Following that were screenshots of tweets (or whatever the fuck) made by Politico reporter Jordain Carney about the last-minute lobbying performed by Congressman Jim Himes, a Democrat representing Connecticut.

If you can’t see/read the screenshots, here’s what they say:

Peak into some of the behind-the-scenes lobbying on 702 ahead of today’s vote:

Himes sent a text to colleagues, explaining that he opposes warrant requirement, calling it an “extreme amendment that goes far beyond” what PCLOB [Privacy and Civil Liberties Oversight Board] recommends, per message I saw,

But…

Sharon Bradford Franklin (chair of the PCLOB, speaking in individual capacity) told me this morning: “I strongly disagree with the characterization” of the amendment “as going far beyond what the PCLOB recommends”

Called it “consistent” and in many ways “similar” to majority rec

_Added that PCLOB report notes it would support Congress going further and said the amendment includes similar exceptions to what P_CLOB recommended

In other words, Rep. Himes didn’t like what he was hearing from the PCLOB (if, indeed, he bothered to check its views at all) and didn’t want the Republicans to get a win, so he actively misrepresented the PCLOB’s views to swing votes in favor of clean reauthorization. We’ll never know how many Democrats he swung to his side by doing this but the voting tally suggests a lot of Democrats either bought into Himes’ bullshit or simply couldn’t bear giving House Republicans a win… even if that win would have respected Americans’ rights and (as a bonus) shut down the pro-surveillance efforts of the Republican leader of the House Intelligence Committee.

This now moves on to the Senate, which has its own suggestions for reform. Fortunately, Ron Wyden is a senator, which means there’s still a chance the FBI will be subject to warrant requirements if it wants to search NSA data for US persons’ communications. Here’s the latest from Wyden, who has spent his entire career pushing back against surveillance power expansions:

U.S. Senator Ron Wyden, D-Ore., vowed to oppose legislation passed by the House of Representatives that would reauthorize Section 702 of FISA and expand warrantless surveillance, in a statement today.

“The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Wyden said. “It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. I will do everything in my power to stop this bill.”

Section 702 remains, at least partially, on the ropes. The FBI’s abuses might finally see themselves curtailed by codification, something that would be far more permanent than its own voluntary oversight efforts or the FISA court’s periodic reprimands. No matter how disingenuous the effort being made by many Republicans is, the end result would be better protections for all Americans — something that can’t be easily undone no matter who’s sitting the White House in 2025.

Filed Under: 4th amendment, fbi, mass surveillance, nsa, partisanship, section 702, surveillance, warrants

Feds Now Adding Dragnet Searches Of YouTube Users’ Video Watching To Their Investigative Arsenal

from the collect-it-all dept

All you need is Google. That’s how things have been going in the law enforcement world. If you don’t know who you’re looking for, just ask Google to do it for you. A variety of warrants that demand Google search its data stores for personal information (that might lead investigators to find potential suspects [who can then be properly targeted with more normal warrants]) have been standard operating procedure for years.

There’s no probable cause to believe Google has committed any crimes. Nor is there necessarily even any reason to believe Google is housing data pertaining to criminal activity. At best, these warrants — ones that seek anything from mass groupings of location data to information on people using certain search words when utilizing Google’s search engine — simply assume Google has collected so much data, it’s a logical place to start an investigation.

The most common form of these Google-centric warrants is the “geofence warrant,” a warrant that asks Google to provide certain information about anybody in a certain area at a certain time. These warrants make anyone in the area a criminal suspect and, if Google complies, citizens are at the mercy of investigators who have the power to decide who is or isn’t a criminal suspect, even when the geofenced areas include things like apartment complexes, churches, or heavily trafficked business areas.

The next most popular is the “keyword” warrant. Using even more specious reasoning, investigators approach courts with warrant affidavits attesting that Google houses information on Google searches that may be relevant to the investigation. Without a doubt, Google stores information about keyword searches. But just because it does store this info doesn’t mean the keywords provided by investigators have anything to do with the crimes being investigated.

This is the latest wrinkle in the Investigatory world. As Thomas Brewster reports for Forbes, keyboard warriors working for federal agencies are now using warrants and court orders to demand Google turn over information on users who may have watched certain videos that have been viewed tens of thousands of times.

Federal investigators have ordered Google to provide information on all viewers of select YouTube videos, according to multiple court orders obtained by Forbes. Privacy experts from multiple civil rights groups told Forbes they think the orders are unconstitutional because they threaten to turn innocent YouTube viewers into criminal suspects.

In a just-unsealed case from Kentucky reviewed by Forbes, undercover cops sought to identify the individual behind the online moniker “elonmuskwhm,” who they suspect of selling bitcoin for cash, potentially running afoul of money laundering laws and rules around unlicensed money transmitting.

In conversations with the user in early January, undercover agents sent links of YouTube tutorials for mapping via drones and augmented reality software, then asked Google for information on who had viewed the videos, which collectively have been watched over 30,000 times.

The feds couldn’t figure out how to set up a honey pot, nor could they figure out how to monitor these links on their own. Following these failures, they then asked a judge for permission to hassle Google into turning over information on (potentially) 30,000 different YouTube viewers. I’m sure it’s more nuanced than that, but that’s what the plain text conveys.

The unsealed court order wasn’t just fishing for a list of vague identifiers that could be winnowed down to a list of suspects and a follow-up warrant demanding actual identifying information on these ~30,000 YouTube users. No, it appears the feds led with the big ask, demanding names, addresses, phone numbers, and user activity for every viewer of these videos between January 1-8, 2023. AND(!!) it asked Google to provide IP addresses for all viewers who were not logged into (or did not possess) Google accounts.

And if you think that fishing hole is pretty fucking big, just keep reading. Brewster has tracked down a few other similar demands for YouTube viewer data and 30,000 viewers is actually on the shallow end of this metaphor. An attempt to find someone who called in a bomb threat resulted in this spectacular abuse of process:

[Federal investigators] asked Google to provide a list of accounts that “viewed and/or interacted with” eight YouTube live streams and the associated identifying information during specific timeframes. That included a video posted by Boston and Maine Live, which has 130,000 subscribers.

This was supposedly justified by the fact that one camera installed by a local business provided a continuous live stream of the area where the supposed bomb had been placed. (It does not appear that any bomb was actually placed anywhere, but a bomb threat alone is often enough to attract the attention of federal officers.)

If 30,000 users being subjected to a single federal law enforcement search is unequivocally bad, the search of perhaps 130,000 users is an almost unimaginable abuse of government power.

We still don’t know how these inexplicably broad requests were handled by Google, nor whether they were instrumental in the prosecution of criminal activity. The DOJ refused to comment on the court orders or the cases. Google has yet to say whether or not it complied with these ridiculous court orders. The court system itself hasn’t been much help to the general public, even though it’s more than willing to assist another government branch by acquiescing to its requests for secrecy.

It’s not just the Fourth Amendment in play here. There’s also the First Amendment. Much like in cases involving mass keyword searches, citizens should feel free to consume any non-illegal content they want without fearing the government may demand their content provider turn over their identifying info.

This is a scary step forward by law enforcement. Hopefully, Google has been resisting these clearly unconstitutional demands for data. And even more hopefully, courts will start seeing enough of these broad warrants, they’ll start shutting down this new form of government overreach.

Filed Under: 4th amendment, privacy, surveillance, video watches, warrants
Companies: google, youtube

Alabama Couple Awarded $1 Million Over Warrantless Raid Of Their House That Saw Cops Walk Off With All Their Cash

from the violations-so-blatant-even-a-court-couldn't-excuse-them dept

Very rarely do you see anyone prevail in court when any form of forfeiture is in play. The forfeiture litigation deck is firmly stacked in favor of the government, which rarely needs anything approaching actual proof to walk off with someone’s property.

It’s even more rare to see someone awarded damages in a civil lawsuit against law enforcement officers. In most cases, qualified immunity terminates the lawsuit. If qualified immunity is not awarded, agencies and governments are often swift to offer plaintiffs no-fault settlements that allow the accused to walk away from the lawsuit without having to admit any wrongdoing, much less pay out of their own pockets for their misdeeds.

This case contains both rarities. Not only does it involve regular people securing some sort of justice for their violated rights, but the underlying set of rights violations included officers walking out the home they’d raided without a warrant with all the valuables they could get their hands on, including $4,000 in cash.

Here’s how the raid went down, as recounted by C.J. Ciaramella for Reason back in 2019.

On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.

Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.

Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.

The supposed odor of marijuana eventually led the deputies to a small marijuana plant, a few scattered leaves, and a single prescription pill that was not located in its bottle. The home invasion also led deputies to other stuff they wanted, but had no legitimate reason to take. They took the cash they found in the house, a wedding ring, some guns, a coin collection, and a couple guitars.

To the Sheriff’s Office, the $4,000 probably seemed insignificant. But it was pretty much all they had. They were in the middle of refinancing an agricultural loan to ensure their chicken farm remained solvent. Thanks to being forced to spend most of two days in jail, they missed their refinancing deadline. That ultimately resulted in the couple losing their house. They were residing in an insulated shed by the time the court took up their lawsuit.

More than four years after the raid, the couple has finally secured some form of justice. The $1 million in damages awarded by the jury will likely be appealed by the sheriff’s department, but for now, that’s what a jury has said the couple is entitled to.

The judge overseeing the case issued an order [PDF] along with the directed verdict, stating that the “rarity” of a directed verdict in a civil rights lawsuit necessitates some explanation.

The explanation reveals just how much of a blatant violation of rights this raid was. Deputy Kevin Walker had no excuse for his actions.

During trial, Judge Amy Newsome testified that she never issued a telephonic warrant to Defendant Walker, or to the drug task force, on January 31, 2018, for a search of the Plaintiffs’ home. She also testified that she did not tell Walker that he had a warrant. In addition, Defendant Walker testified that Judge Newsome did not tell him that he had a telephonic search warrant, although she did tell him that he probably had enough for a warrant.

He also acknowledged that the requirements for a telephonic warrant were not satisfied, that he did not have a search warrant, and that it was a warrantless search. Given this undisputed testimony, even when considered in the light most favorable to Defendant Walker, the search of the Plaintiffs’ home was without a warrant, even a defective one, and therefore violated the Fourth Amendment. No reasonable jury could have concluded otherwise as there was no question of fact on this issue.

Yeah. That’s inexcusable. And yet, Walker had an excuse: good faith. He attempted to avail himself of the good faith warrant exception. But, as the judge points out, good faith relies on someone believing a valid warrant has actually been issued, not just thinking they could probably obtain one at some point in the future. On top of that, the good faith exception invoked by the deputy only applies in criminal trials, not civil trials. Even if it did apply in this content, Walker would still lose. (Emphasis in the original.)

But even if the good faith exception to the exclusionary rule can apply in the civil context, the good faith exception still would not apply in the circumstances of this case. First, per Judge Newsome and Defendant Walker, there was no warrant, telephonic or written, and thus there was nothing upon which Walker could rely in good faith. In other words, because Defendant Walker knew that he did not have a warrant at the time of the incident, the good faith exception does not apply.

And the cases Walker cites are inapplicable to the facts here: Taylor, Moorehead, Henderson, and Ganzer all involved situations where written warrants were issued, not situations where a warrant was never issued in the first place. And secondly, as a matter of law, given the undisputed facts concerning the non-existence of a warrant, it was objectively unreasonable for an experienced law enforcement officer to believe that he could search an occupied home when no warrant existed, when no judge told him that he had a warrant, when he was merely told that he had enough for a warrant, and when none of the formalities or requirements associated with a telephonic or written warrant were followed.

As the court notes in this order, it fully expects Walker to raise the other form of good faith in a future motion, indicating that while a jury has already said the couple is owed $1 million in damages, the court has yet to issue an order blessing that payout. Hopefully, if nothing else, this utter failure to salvage a blatantly unconstitutional search will urge Walker’s employers to cut a check, rather than continue to embarrass itself in court.

Filed Under: 4th amendment, alabama, civil asset forfeiture, good faith, greg almond, kevin walker, qualified immunity, randolph county, teresa almond, warrantless search, warrants

Ring Breaks Up With Law Enforcement, Will No Longer Provide A Footage Request Portal For Cops

from the boots-will-be-less-licked-going-forward dept

Hey, everyone makes mistakes. Ring certainly did. Amazon’s home surveillance acquisition realized there was no one in the residential space willing to slavishly cater to cops.

Ring decided it would provide this supposed “public service.” It gave cops cheap/free cameras and urged them to hand them out to as many private citizens as possible. The intent was this: if regular people got free cameras from cops, they’d be less likely deny requests for recordings with or without a warrant.

Without a warrant was status quo. And when users resisted law enforcement advances, cops went to Ring directly with requests for footage stored in the cloud.

Things were working out well for Ring and their cop buddies. On top of portals created for law enforcement access, there was Ring’s neighborhood app. It may have seemed like a good idea to create an ultra-local portal for crime reports. But the reality was a nightmare: an app with a top-level brand name attached that served as portal for residents’ racism.

But Ring persisted. It seemed to believe the best path forward ran through the nation’s cop shops. Ring handed out free cameras and asked for nothing more in return than complete abdication by its law enforcement partners. Cops handed out cameras, but Ring handled public statements, responses to media inquiries, and specifically told law enforcement agencies this “partnership” was predicated entirely on Ring doing what was best for Ring.

There are tensions. On one hand, there’s the understandable willingness to give the paranoiacs what they want. People who think every brown-ish person is a latent threat to public safety should be given a voice on a platform that makes the most money when everyone — including cops patrolling the area — believes it’s inundated with latent threats. On the other hand, there’s the reality: crime rates have been dropping steadily for the last three decades. But if you acknowledge that fact, you can hardly justify your existence, much less your stranglehold on the market.

Ring cultivated close relationships with law enforcement agencies. It seemed like the easiest way to expand the reach of its market. But now, things are far less easily defined. Cops refuse to learn from their mistakes, which means their private partners in surveillance are implicated every time law enforcement officers fuck up on main.

The first expansion worked out well because cops were receptive. But examinations of the details of these partnerships exposed how willing Ring was to undercut common constitutional protections to keep cops happy.

Ring has finally realized its potential market included millions of non-cop Americans. If Ring wants to continue to make in-roads, it needs to shrug off its cops-first approach to retail. People do want to protect their own property, which means millions of people are interested in home surveillance cameras. What regular people aren’t as willing to do is be forced to share their recordings with cops just because (1) Ring stores recordings in its cloud, or (2) because Ring makes it easy for cops to avoid asking for consent by cutting end users out of the equation.

Ring did dial back law enforcement access after months of negative press. But its latest announcement makes everything official: if cops want access to footage, they’ll need to respect the Constitution, rather than just assume the Third Party Doctrine makes this formative text irrelevant. Here’s Matthew Guariglia, report for the EFF:

Amazon’s Ring has announced that it will no longer facilitate police’s warrantless requests for footage from Ring users. This is a victory in a long fight, not just against blanket police surveillance, but also against a culture in which private, for-profit companies build special tools to allow law enforcement to more easily access companies’ users and their data—all of which ultimately undermine their customers’ trust.

This is the next step in Ring’s slow withdrawal from its original position of ultimate law enforcement subservience. Having discovered that lying down with law dogs gets you covered in PR fleas, Ring is now seeking to salvage what’s left of its reputation.

And that’s a definite public good. Here’s how Ring explains it on its own site:

_This week, we are also sunsetting the Request for Assistance (RFA) tool. Public safety agencies like fire and police departments can still use the Neighbors app to share helpful safety tips, updates, and community events. They will no longer be able to use the RFA tool to request and receive video in the app. Public safety agency posts are still public, and will be available for users to view on the Neighbors app feed and on the agency’s profil_e.

This is what will matter going forward. Ring has changed its access for law enforcement. But it has kept lines open for “first responders.” Cops who have maintained good relationships with the neighborhoods they serve will be largely unaffected. They may lose always-on access, but they should be able to leverage their connections to obtain footage.

Most law enforcement agencies won’t have that luxury. They’re unwilling to build relationships with communities, which means Ring’s announcement will greatly restrict access to footage without a warrant. At any point, these agencies could have changed the calculus. But most agencies prefer to act as though they’re above working with community leaders or those living in the areas they patrol. So, this will hurt them, because they’ll no longer have the option to demand access to footage without creating a courtroom paper trail.

The change is so essential even a cop-friendly tech company like Ring can’t ignore it. Moving forward as a company millions of Americans can trust means publicly indicating law enforcement isn’t inherently trustworthy. Taking cops out of the loop will make it easier for Ring to sell cameras to the millions of Americans who believe their own property is worth protecting, but don’t necessarily believe law enforcement officers are of much use when it comes to protecting personal property.

No doubt this will result in more than a few law enforcement officials claiming the loss of easy access will lead to crime waves they’re apparently unable to anticipate, much less curtail. But they’ll have to face the uncomfortable fact that Ring’s decision to block access to recordings has been prompted by their own actions — actions that have made it clear to Ring it’s ultimately more profitable to gain the public’s trust, rather than bed down with any cop shop that will have it.

Filed Under: 4th amendment, doorbell cameras, home surveillance, neighborhood app, police, privacy, surveillance, surveillance cameras, third party doctrine, warrants
Companies: amazon, ring

FTC Blocks Data Broker Outlogic From Collecting And Selling Sensitive Location Data

from the doing-the-bare-minimum dept

Fri, Jan 12th 2024 05:27am - Karl Bode

We’ve long noted how the U.S. has generally proven too corrupt to pass even a baseline privacy law or regulate data brokers. The result has been a long line of companies that over-collect all manner of sensitive consumer location and behavior data, fail to secure it, and sell access to it to pretty much any dipshit with a few nickels to rub together. The result: an endless parade of massive privacy scandals.

Instead of fixing the problem from a top-down level with meaningful reform, we’ve done things like… performatively and singularly hyperventilate about the dangers of TikTok.

The only exception has been the FTC, which has been increasingly ramping up pressure on data brokers that play fast and loose with consumer privacy. That continued this week, with the agency announcing that it has banned a data broker named X-Mode Social (recently renamed Outlogic) from sharing or selling users’ sensitive location data, and forced it to delete all collected data.

The FTC’s investigation found the the firm routinely collected and monetized all manner of sensitive geolocation data on consumers gleaned from mobile phones, apps, and other technologies. That data revealed movement behavior down to the meter as consumers visited sensitive locations such as medical and reproductive health clinics, places of religious worship and domestic abuse shelters.

Outlogic then failed to adequately secure this data or engage in much (if any) real controls as to which third parties had access to it:

“Geolocation data can reveal not just where a person lives and whom they spend time with but also, for example, which medical treatments they seek and where they worship. The FTC’s action against X-Mode makes clear that businesses do not have free license to market and sell Americans’ sensitive location data,” said FTC Chair Lina M. Khan. “By securing a first-ever ban on the use and sale of sensitive location data, the FTC is continuing its critical work to protect Americans from intrusive data brokers and unchecked corporate surveillance.”

As with most companies, Outlogic tried to pretend it had secured this data by claiming it had been “anonymized.” But as numerous studies have shown, that term is absolutely meaningless, given it only takes a tiny smattering of additional datasets to identify these supposedly anonymous individuals. In several of these cases, the FTC found companies didn’t even bother with anonymization.

Lina Khan gets criticized a lot for missteps coming from being a young regulator learning on the job. But she deserves ample credit for being one of the few people in DC taking the problem of unregulated data brokers seriously. Our corrupt refusal to regulate these dodgy companies will, sooner or later, result in some form of massive, unprecedented privacy scandal that will make past scandals look adorable by comparison.

Granted the FTC has limited staff and funding, and has generally had its authority over corporations steadily whittled down by decades of relentless corporate lobbying (something that’s likely to get worse with a number of looming Supreme Court decisions).

Keep in mind: this is just one regulator action against one company in an international data broker market filled with companies all doing the same thing. There are more than 4,000 estimated data brokers worldwide, and most of them are clever enough to at least create the fleeting illusion they care about privacy, letting them tap dance over, under, and around our swiss cheese privacy protections.

In other words, only the dumbest, clumsiest data brokers ever face any real penalty. You simply have to be marginally clever to avoid accountability for dodgy behavior.

Ideally you’d have Congress pass a more meaningful privacy law that specifically singles out data brokers and bad behavior. There are two reasons that doesn’t happen: one, a corrupt Congress has been lobbied into apathy by a long line of industries with bottomless pockets who don’t want to lose money. And two, the U.S. government has been exploiting this dysfunction to avoid having to get traditional warrants.

That makes meaningful reform hard to come by. Instead, what we’ve largely gotten is a bunch of performative simulacrum. Most commonly in the form of politicians posturing about the dangers of TikTok, eager to ignore that a long line of dodgy data brokers engage in the same or worse behavior (even selling U.S. consumer data to foreign intelligence agencies) at unfathomable scale.

Filed Under: apps, consumer rights, data brokers, geolocation, location data, privacy, scandal, warrants, wireless

Google Disrupts Geofence Warrants, Says (Most) Location Data Will Be Stored Locally

from the lolololooooooooooooool dept

For years, Google has collected all the data it can about its users. And for years, it has utilized this data to… well, it depends on who you ask.

For Google, it meant a whole lot of targeted advertising — something so valuable Google tended to collect the data even when it told users it wouldn’t.

Once law enforcement realized Google loved data, it started approaching Google to get data it couldn’t get elsewhere. Google was home to the most popular search engine and most popular map app in the world. For those to work, users needed to allow Google to collect data. And if Google was collecting the data, law enforcement knew exactly where to go with so-called “warrants” that assumed nothing else than the probability (as in “probable cause”) Google’s servers might contain this data.

Everything just took off from there. Another boost to law enforcement hoovering of data was given (inadvertently) by the Supreme Court’s Carpenter decision. That decision said law enforcement needed to obtain warrants before obtaining cell site location data, especially if it covered weeks, months, or years of collected data.

No problem, said the cops. We’ll just use questionable warrants to obtain data we could credibly argue is still subject to the Third Party Doctrine. That’s how geofence warrants came to be: warrants that seek data on everyone in a certain area at a certain time, even if this theoretically limited time/place might give law enforcement plenty of data on innocent people who happened to be in the wrong place at the wrong time.

Also enter keyword warrants, in which law enforcement submits search keywords to Google, seeking anyone who might have used those terms at a particular time and place. Sounds great… right up until you realize Google has to search all of its retained user data to find information responsive to these requests.

While not exactly novel, geofence and keyword warrants reside in the gray area of unsettled law. That means the government can rack up “wins” with little fear of being found deliberately on the wrong side of the Constitution.

Legislation is in the works to curb the government’s acquisition of location data from third parties (the data brokers buying data from app developers). On this front, however, there are only the courts (mixed results) and the location data collectors (collective shrugs to this point) standing between the government and mass collection of location data.

The government isn’t going to restrain itself. But, in a surprise announcement, a company that feasts on data says it will consume a little less if it means protecting users from government overreach.

This week, the company said it will begin changing where it stores that Timeline data. Currently, it lives on your devices and Google’s servers, but when the shift takes place, your location history will remain solely on the hardware you own. And less of that data will be stored over time, Google says — only three months’ worth by default, down from the 18 months that are currently saved.

The company says the changes will “gradually roll out through the next year.”

Well… holy shit… at least to some degree. It’s an in-progress rollout, which means not everyone is protected right out of the gate. And it means that users will have to decide whether limited data collection works better for them than the wholesale collection they’re used to. If the latter appeals more than the former, users will need to find their own way to create a long-running, rolling history of their movements.

For most people, the default option will work. For most cops, it obviously won’t. And even if users decide they want to store everything Google collects about their movements, there’s no easy way for law enforcement to access this information. That data will be encrypted by default — accessible to users, but not to the government.

This is a win for Google users, which comprise roughly 99.9% of the nation. It will be portrayed by government officials as a loss for law enforcement, which will now have to perform investigations the way it has for decades: by finding suspects first and looking for evidence after.

That shouldn’t be a problem for cops who have done things the old way for years. But, of course, there are always those willing to argue that protecting citizens from their government is a net loss for society. That’s where law prof Orin Kerr comes in with his post on this subject for the Volokh Conspiracy.

My very tentative sense, from a public policy standpoint, is that this seems like a bit of a bummer. Geofencing was being used to solve some really serious crimes—like murders, rape, and armed robberies—when there were no known suspects or leads and the case had gone cold. Having governments be able, with sufficient cause, to go to a court, get a court order, and then obtain potentially responsive location records that could provide a lead to investigate was, on the whole, a good thing.

I often disagree with Orin Kerr — a Fourth Amendment scholar for whom I still retain a great deal of respect. But today is no different. The respect and the disagreement are both present here.

Even given the links to crimes supposedly solved by access to Google location data, there’s no way allowing law enforcement to force Google to search all users’ data, compile a list of data involving almost entirely innocent people, and handing that over to the government, is “on the whole, a good thing.”

Without a doubt, law enforcement could solve a lot of major crimes by searching houses door-to-door with nothing more than a “because you’re home” warrant. Would that be a “good thing” for society? Or would it be what we’ve been witnessing for years: a willingness to operate in areas ungoverned by constitutional bright line decisions just because cops can?

There are plenty of net goods for humanity that could be realized with governmental abuses of power. But, at least in the United States, the balancing of the government’s needs against the rights of the people tends to favor the people most of the time. Why? Because they have the least power. And that imbalance of power doesn’t change just because it’s a third party collecting all the data. Google may be the 800 lb. gorilla of the internet but its power pales in comparison to what the government is capable of doing when it decides to flex its muscles.

This move won’t make Google any more popular with US law enforcement agencies. As as much as it may irritate US cops (and irk Orin Kerr), the fact remains that private companies serve their users, not the US government. If the government wants the access it used to have, it needs to have a long talk with itself. If it thinks now is the time to abridge rights, it can talk to sympathetic legislators and hope any resulting laws pass the constitutional sniff test. Otherwise, it can go back to performing investigations the way it used to before everyone carried a power computer in their pockets at all times.

What’s happening here is just a long-needed course correction from one of the thirstiest data collectors in internet history. What it definitely isn’t is a net loss for society.

Filed Under: 3rd party doctrine, 4th amendment, geofence warrant, law enforcement, location data, privacy, surveillance, warrants
Companies: google

FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections

from the just-laying-it-right-out-there-like-it-doesn't-mean-anything dept

After years of continuous, unrepentant abuse of surveillance powers, the FBI is facing the real possibility of seeing Section 702 curtailed, if not scuttled entirely.

Section 702 allows the NSA to gather foreign communications in bulk. The FBI benefits from this collection by being allowed to perform “backdoor” searches of NSA collections to obtain communications originating from US citizens and residents.

There are rules to follow, of course. But the FBI has shown little interest in adhering to these rules, just as much as the NSA has shown little interest in curtailing the amount of US persons’ communications “incidentally” collected by its dragnet.

In recent months, several Republicans have argued against a clean re-authorization of Section 702 powers, citing the FBI’s backdoor snooping on Trump administration figures, as well as certain Republicans who have outlasted Trump’s four-year stint as the supposed leader of the free world.

On top of this opposition, there’s something more bipartisan. Every time surveillance powers are up for renewal, Senator Ron Wyden and other privacy focused legislators have offered up comprehensive surveillance reform packages.

The latest effort by Wyden would create a warrant requirement for these backdoor searches by the FBI. Senate leaders tried to dodge this by slapping a clean re-auth rider on a “must pass” budget bill, but legislators found a way to keep the government funded for a little bit longer while they continue to argue over who gets what and how much of it.

Faced with the real possibility of seeing this surveillance authority heavily altered, if not discarded completely, the FBI is making its case for a year-end approval of status quo continuation. But it’s making some really bad arguments.

FBI director Chris Wray took time out his busy “everything is going dark” schedule to speak to House representatives on behalf of his agency and its desire to continue to abuse this access to NSA collections. Unfortunately for Wray, the statements he made inadvertently exposed the lack of legal basis for FBI access to communications collected by the NSA.

First though, he pretended he cared whether or not Americans were subject to unconstitutional spying, as Jessica Hardcastle reports for The Register.

He did address the FBI’s earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.

“To be sure, no one more deeply shares Members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do,” Wray said.

That can’t possibly be true. If it were, Wray’s concern would surpass the concern expressed by any number of rights and privacy groups, as well as legislators who have worked for years to curtail this abuse, only to see their reform efforts shot down by the lawmakers who care even less about the FBI’s violations than the FBI itself.

If this statement were even remotely true, Wray wouldn’t be trying to talk legislators into dumping Wyden’s reform bill, much less advocating for continued warrantless access to US persons’ communications.

Wray’s argument for continued warrantless access was somehow even worse than his pretending to care about surveillance abuses. Somehow, the FBI director managed to blurt out what everyone was already thinking: that the FBI needs this backdoor access because it almost never has the probable cause to support the search warrant normally needed to access the content of US persons’ communications.

“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,” Wray said.

Holy shit. He just flat-out admitted it: a majority of FBI searches of US persons’ communications via Section 702 are unsupported by probable cause. That alone should be enough to, if nothing else, forbid the FBI from using this back door. This is on top of the years of continuous abuse of these surveillance powers by the FBI — something so egregious even the FISA court has considered shutting down the FBI’s access. And that’s with the FISA court’s unwavering ability to both forgive and forget the FBI’s constant trespasses.

If Wray is to be believed — and there’s no reason not to, since he’s arguing in self-interest — probable cause either doesn’t exist or takes too long. This is the same guy who, moments earlier, claimed he was the most concerned about FBI abuse of this surveillance power. Yet, moments later, he’s telling legislators his agency is incapable of complying with the Fourth Amendment, or simply just unwilling to do so.

While I’m less than thrilled certain Republicans have decided Section 702 is bad only when it hurts them, I’m happy to see this power face the real possibility of meaningful reform, if not actual extinction. It’s been a long time coming. Unfortunately, both the FBI and the current administration are united in their desire to keep this executive authority intact. Both Wray and the Biden administration call the warrant requirement a “red line.” So, even if the House decides it needs to go (for mostly political reasons) and/or Wyden’s reform bill lands on the President’s desk, odds are the FBI will get its wish: warrantless access to domestic communications for the foreseeable future.

Filed Under: 4th amendment, backdoor searches, chris wray, fbi, section 702, warrantless search, warrants

Just Because CSLI Warrants Are New-Ish Doesn’t Mean You Can You Can Skimp On The Probable Cause

As far back as I can remember, cell site location info (CSLI) was always covered by the Third Party Doctrine. That court-created doctrine said anything “voluntarily” handed over to third parties can be obtained by the government. Without a warrant.

That not only includes bank records, phone records, and other transactional records we possibly haven’t even considered to be of interest to the government, but for the longest time — long after nearly everyone carried a cell phone with them wherever they went — location data generated by connections to cell towers could also be had without a warrant.

“Voluntary?” Hardly. To use your cell phone, you need to connect to a tower. It’s either/or, a binary calculation that says using a cell phone means creating a digital trail of your movements.

In 2018, the Supreme Court finally decided this was not only not exactly a voluntary transaction, but that the government shouldn’t have the power to engage in long-term tracking of citizens without a warrant. Enter the warrant requirement, which meant obtaining weeks or months of CSLI now needed a bit more paperwork and a bit more respect for the Fourth Amendment.

In terms of law enforcement work, a half-decade ago is a minute ago. It takes years for cops to finally comprehend the meaning and scope of constitutional decisions that don’t play out in their favor. They can fuck up for months or years and still get a “good faith” pass because law is hard and stuff.

Sooner or later, courts get a little tired of giving cops passes for deliberately failing to stay abreast of legal developments that occurred years ago. The Supreme Court of Georgia recently took law enforcement to task for thinking it could search someone’s cell phone using nothing but copied-pasted boilerplate and conclusory statements in its sworn affidavit.

The same sort of thing is going on here. I’m not even going to try to summarize the case to this point. This suppression order is the 519th document on the docket in a case that involves multiple charges, multiple defendants, and a still-unresolved prosecution of drug conspiracy case.

In fact, the order [PDF] doesn’t even make it clear it’s a suppression order. Multiple things are being handled here, and the federal court placed this one on the docket with a summary that leads with “ORDER GRANTING 355 Motion to Participate in Voir Dire as to Angela Cable.” Whew.

But this order does include a pretty thorough rejection of the government’s CSLI warrant half-assery. A wiretap that captured conversations between the co-conspirators also captured a single phone call involving defendant Angela Cable that may have included references to drug trafficking. This lone call became the basis for further government intrusion, some of which the court doesn’t find acceptable.

From this single call, the affiant concluded Defendant Cable was using her cell phone “to facilitate transactions involving drugs” and GPS data from her phone provider would “assist agents in locating and identifying vehicles and the locations that [were] being used as ‘stash houses’ for illegal drugs and/or drug proceeds.” Based on that analysis and information regarding the affiant’s background and experience, a Magistrate Judge issued a search warrant for geolocation data regarding Defendant Cable’s cell phone.

Ah, the old “training and experience” hook, which was attached to a couple of conclusory statements, some boilerplate, and a lot of assumptions about what this location info would reveal to investigators.

The magistrate judge issued a report and recommendation denying Cable’s attempt to suppress the CSLI. The district court says the magistrate is wrong about a few things.

Probable cause is still the standard, even if the warrant requirement is, in the grand scheme of things, fairly new. While the affidavit did provide information that linked Cable to her co-defendants and their alleged drug running, it did not do much to link her personal movements — those that could be ascertained from the location data — to the criminal acts being investigated.

The Court thus agrees the affidavit established, first, Defendant Cable’s involvement with Ruiz in the distribution of methamphetamine and, second, her use of her cell phone to assist in this illegal activity. But the affidavit provided no link between her mere use of the cell phone and probable cause to conclude the phone’s geolocation data would provide evidence of a crime. The affidavit alleged GPS data from the phone “will assist agents in locating and identifying vehicles and the locations that [were] being used as ‘stash houses” for illegal drugs and/or drug proceeds.” The affidavit did not, however, explain any basis for that conclusion.

A warrant has to do more than establish probable cause that criminal acts have occurred. It needs to link the suspected activity to the place being searched. In this case, it was Cable’s cell provider. The only data sought was location data, which wasn’t evidence of anything… at least not according to what had already been observed during the investigation.

Absent some allegation linking the movement of the phone to evidence of illegal activity, the mere use of a phone to conduct illegal activity does not establish probable cause to believe the location information tracked by the phone will provide evidence of a crime. People can, of course, use cell phones to speak about a crime without their locations providing evidence of the crime. So the mere use of a phone does not establish probable cause that one’s movements will provide evidence of a crime.

And what law enforcement had at the point the warrant was sought was nothing that suggested her location data would be evidence of anything other than her possession and use of a cell phone.

The affidavit includes no factual allegations to suggest Defendant Cable visited stash houses, moved drugs or drug proceeds between locations, or made any other movements as part of the drug trafficking. Merely conferencing together two people on a phone (albeit for illegal purposes) does not make the location from which the call was made (let alone movements while not using the phone) relevant to the investigation.

The court reverses this part of the magistrate’s recommendation. Probable cause isn’t an extremely high bar to clear. But no effort was made to step over it here.

In a conclusory manner, the affiant characterizes Defendant Cable as a “courier” but provides no basis for that assertion, and the other facts alleged do not support it.

But even though this is (at least partly) a suppression order, there is no suppression here. Good faith trumps bad police work and the location data survives to be used against Cable during her jury trial.

Having reviewed the warrant, the Court concludes that, even if the warrant lacked probable cause, the government would nonetheless be entitled to the benefit of the good-faith exception.

Welp. That’s the way it goes sometimes. Good faith beats bad warrant in a court of law. However, not every decision goes this way. And cops who think an affidavit needs nothing more than boilerplate with some “training and experience” seasoning need to be called out by courts more often, even if the end result is judicial forgiveness. If they’ve been told once, they’re not nearly as likely to be considered to be acting in “good faith” the next time around.

Filed Under: 4th amendment, angela cable, csli, location, probable cause, warrants