It is a well-known maxim that “bad facts make bad law.” And as anybody even casually browsing social media this week likely has seen, the incredibly tragic facts surrounding the San Bernadino attacks last December have led to a ruling that jeopardizes the privacy rights of all law-abiding Americans.
First, it is important to clearly understand the ruling. After the horrific attack in San Bernadino on December 2, 2015, the FBI seized and searched many possessions of shooters Syed Rizwan Farook and Tashfeen Malik in their investigation of the attack. One item seized was Farook’s Apple iPhone5C. The iPhone itself was locked and passcode-protected, but the FBI was able to obtain backups from Farook’s iCloud account. These backups stopped nearly six weeks before the shootings, suggesting that Farook had disabled the automatic feature and that his phone may contain additional information helpful to the investigation.
Under past versions of iOS, the iPhone’s operating system, Apple had been able to pull information off of a locked phone in similar situations. However, Farook’s iPhone—like all newer models—contains security features that make that impossible. First, the data on the phone is encrypted with a complex key that is hardwired into the device itself. This prevents the data from being transferred to another computer (a common step in computer forensics known as “imaging”) in a usable format. Second, the iPhone itself will not run any software that does not contain a digital “signature” from Apple. This prevents the FBI from loading its own forensic software onto Farook’s iPhone. And third, to operate the iPhone requires a numeric passcode; each incorrect passcode will lock out a user for an increasing length of time, and the tenth consecutive incorrect passcode entry will delete all data on the phone irretrievably. This prevents the FBI from trying to unlock the iPhone without a real risk of losing all of its contents.
As Apple CEO Tim Cook has explained, this system was created deliberately to ensure the security of its users’ personal data against all threats. Indeed, even Apple itself cannot access its customers’ encrypted data. This creates a unique problem for the FBI. It is well-settled that, pursuant to a valid search warrant, a court can order a third party to assist law enforcement agents with a search by providing physical access to equipment, unlocking a door, providing camera footage, or even giving technical assistance with unlocking or accessing software or devices. And, as the government has acknowledged, Apple has “routinely” provided such assistance when it has had the ability to access the data on an iPhone.
But while courts have required third parties to unlock doors, they have never required them to reverse-engineer a key. That is what sets this case apart: to assist the government, Apple would have to create something that not only does not exist, but that it deliberately declined to create in the first instance.
On February 16, Assistant U.S. Attorneys in Los Angeles filed an ex parte motion (that is, without providing Apple with notice or a chance to respond) in federal court seeking to require Apple to create a new piece of software that would (1) disable the auto-erase feature triggered by too many failed passcode attempts and (2) eliminate the delays between failed passcode attempts. In theory, this software is to work only on Farook’s iPhone and no other. This would allow the FBI to use a computer to simply try all of the possible passcodes in rapid succession in a “brute force” attack on the phone. That same day, Magistrate Judge Sheri Pym signed what appears to be an unmodified version of the order proposed by the government, ordering Apple to comply or to respond within five business days.
Though Apple has not filed a formal response, CEO Tim Cook already has made waves by publicly stating that Apple will oppose the order. In a clear and well-written open letter, Cook explains that Apple made the deliberate choice not to build a backdoor into the iPhone because to do so would fatally undermine the encryption measures built in. He explains that the notion that Apple could create specialized software for Farook’s iPhone only is a myth, and that “[o]nce created, this technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key . . . .”
This has re-ignited the long-standing debate over the proper balance between individual privacy and security (and the debate over whether the two principles truly are opposed to one another). This is all to the good, but misses a key point: Judge Pym’s order, if it stands, has not only short-circuited this debate, it ignores the resolution that Congress already reached on the issue.
Indeed, a 1994 law known as the Communications Assistance for Law Enforcement Act (“CALEA”) appears to prohibit exactly what the government requested here. Though CALEA preserved the ability of law enforcement to execute wiretaps after changing technology made that more complicated than physically “tapping” a telephone line, it expressly does not require that information service providers or equipment manufacturers do anything to open their consumers to government searches. But instead of addressing whether that purpose-built law permits the type of onerous and far-reaching order that was granted here, both the government and the court relied only on the All Writs Act—the two-century-old catch-all statute that judges rely on when ordering parties to unlock doors or turn over security footage.
Though judges frequently must weigh in and issue binding decisions on fiercely contested matters of great importance, they rarely do so with so little explanation, or after such short consideration of the matter. Indeed, when the government sought an identical order this past October in federal court in Brooklyn, N.Y., Magistrate Judge James Orenstein asked for briefs from Apple, the government, and a group of privacy rights organizations and, four months later, has yet to issue an opinion. Yet Judge Pym granted a similar order, without any stated justification, the same day that it was sought.
An order that is so far-reaching, so under-explained, and so clearly legally incorrect is deeply concerning. And yet, but for Apple’s choice to publicize its opposition, this unjustified erosion of our privacy could have happened under the radar and without any way to un-ring the bell. Fortunately, we appear to have avoided that outcome, and we can hope that Apple’s briefing will give the court the additional legal authority—and the additional time—that it will need to revisit its ruling.
The government has voluntarily dismissed its case against Jae Shik Kim, the South Korean businessman for whom Ifrah Law obtained a motion to suppress in federal court. In 2012, Mr. Kim was stopped by federal agents as he tried to board a plane to South Korea from LAX. The government seized his laptop and copied his hard drive based on suspicion that he had engaged in illegal activity years earlier. The government indicted Mr. Kim based on evidence it found on the laptop relating to past transactions.
Everyone who has been through a security checkpoint at an airport knows that the government has wide latitude to conduct certain warrantless searches at the border without any suspicion of illegal conduct. However, the U.S. District Court for the District of Columbia concurred with Ifrah Law’s argument that the government’s latitude is wide, but it is not unbounded. In order to conduct a non-routine search of electronics at the border–including copying a hard drive for the government to conduct a later search unbounded in time and scope—the government must have reasonable suspicion that the owner is presently engaged or will imminently engage in illegal activity. An ongoing investigation of suspected past criminal activity is not a sufficient basis on which to perform such a search. To use a border search for that purpose is an illegal attempt to circumvent the warrant requirements imposed by the Fourth Amendment to obtain evidence in an ongoing investigation, and any evidence obtained in that manner cannot be used to convict the defendant.
The government understood that when the court suppressed the evidence obtained from Mr. Kim’s laptop, it did not have a case on which it could obtain a conviction. Shortly after the court granted Ifrah Law’s motion to suppress, the government filed an interlocutory appeal of the court’s order. The government hoped that the Court of Appeals would reverse the order and allow the government to present evidence obtained from the laptop in order to secure a conviction.
This week, the government reversed course. The government not only dropped its appeal on the suppression issue, but moved to dismiss the indictment entirely, resulting in an event all too rare in the criminal justice system—a dismissal of all charges against the defendant. The government’s action implicitly acknowledges restrictions on its authority to conduct non-routine searches at the border when there is no suspicion of present criminal activity. It is a big win not only for our client, but for the ongoing effort to preserve our right to privacy.
Photo: “LAX-International-checkin” by TimBray at en.wikipedia.
Developments in law are sluggish compared to the rapid rate of technological advancement, and courts must constantly apply old legal principles to technologies which were not contemplated at the time the laws were enacted. Recently, technology has been at the forefront of privacy rights debates, in light of revelations that the government has access to online communications, personal data storage and extensive monitoring via technology. The Fourth Amendment of the United States Constitution establishes a privacy right by prohibiting unreasonable search and seizure, but the extent to which that applies to technology is largely untested. Last week, a federal judge upheld this fundamental right as she ruled that our client’s rights had indeed been violated by an unreasonable search and seizure of a laptop computer conducted by the government.
U.S. District Court Judge Amy Berman Jackson granted a motion which we filed on behalf of our client, South Korean businessman Jae Shik Kim, to suppress evidence seized from his laptop as he departed the country from Los Angeles International Airport in October 2012. The decision severely cripples the government’s case alleging that Kim conspired to sell aircraft technology illegally to Iran, in United States of America vs. Jae Shik Kim, Karham Eng. Corp. (Crim. Action No. 13-0100 in the U.S. District Court for the District of Columbia).
The seizure of Mr. Kim’s laptop presents a unique challenge in an undeveloped area of law. The government claimed that because Mr. Kim’s laptop was seized at the border, it was free to search the computer without having any suspicion that he was presently engaged in criminal activity, the same way the government is free to search a piece of luggage or a cargo container. Yet anyone who owns a laptop, smartphone, tablet, or any other personal mobile device, knows that the breadth and depth of private information stored within these gadgets are intimately tied to our identities and should be entitled to a heightened level of privacy.
Judge Jackson, who understood this aspect of modern mobile devices, wisely rejected the government’s argument that a computer is simply a ‘container’ and that the government has an ‘unfettered right’ to search. In her memorandum opinion and order, she wrote, “…given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane.”
In her decision, Judge Jackson also repeatedly referred to “reasonableness” as the “touchstone for a warrantless search.” She keenly balanced the government’s imperative to protect our borders with individuals’ privacy rights. Judge Jackson found that the nature of the search — including that the government conducted the search as Kim departed the country (and not as he entered) to gather evidence in a pre-existing investigation, and that it made a copy of the entire contents of Kim’s laptop for an “unlimited duration and an examination of unlimited scope” — amounted to an invasion of privacy and an unreasonable search and seizure.
While the search of Mr. Kim was technically a border search, his laptop was not searched at the airport. Instead, it was transported 150 miles to San Diego and held until government agents were able to find and secure information they deemed valuable to their case. In fact, Mr. Kim was deemed so little of a threat to national security that he was permitted to board his flight. Judge Jackson noted that if the government’s asserted justification for the search were to stand, it “would mean that the border search doctrine has no borders.”
In this case, unfortunately, the government overstepped the boundaries established by Fourth Amendment of the Constitution, however the checks and balances imposed by the same foundational document proved to correct this error, and rightly so, as our laws continuously strive to adjust to the reality of rapidly evolving technology.
Court: Police Need Warrant to Search Phone. But Guess What? They Get to Keep Your Phone While They Get One.
Will cops still get access to cell phone data post arrest? You bet. Today’s Supreme Court decision just means they need to get permission from a judge before they start searching who you have been texting. And odds are very good, that permission will be granted.
In a unanimous decision authored by Chief Justice Roberts, the United States Supreme Court held that law enforcement officers may not conduct warrantlesssearches of cell phones that are seized incident to an arrest. But just because police cannot immediately search mobile phones, doesn’t mean they cannot immediately seize them in connection with an arrest. Indeed, the benefit of today’s decision by our country’s highest court may be limited to the two defendants who brought the case (and of course any similarly situated defendants).
The named defendant in Riley v California is David Riley. After Riley was stopped for a traffic violation, he was arrested and the police officer seized his cell phone incident to that arrest. When the officer accessed the data on the phone (without a search warrant), he noticed the repeated use of an identifier associated with the Bloods street gang. Later, a detective reviewed the cell phone records and noticed gang-related content, including a photo of Riley standing in front of a car that was used in a shooting weeks earlier. Riley was convicted of multiple crimes related to that shooting and received a sentence of 15 years to life.
The second case resolved today involved Brima Wurie, who had been arrested in connection with a drug sale. After Wurie’s arrest, police took him to the police station where officers confiscated his flip phone. A few minutes later, Wurie’s phone showed an incoming call from “my house.” The officers opened the phone, accessed the call log to determine the number of the incoming call, and then traced the number back to Wurie’s apartment, which they secured. After obtaining a search warrant, the officers searched the apartment and seized drugs, a gun, ammunition, and cash. At trial, Wurie was convicted on three drug-related counts and sentenced to more than twenty years in prison.
The key here to note is that in neither case did law enforcement obtain prior permission to search the cell phones belonging to Riley and Wurie. The narrow question presented to the Court therefore was whether it is permissible for law enforcement to search cell phone data incident to an arrest where no court has authorized such a search. In holding that such a search violates the Fourth Amendment of the US Constitution, the Court considered but rejected as not relevant prior cases where so-called “warrantless” searches passed constitutional muster. For example,
· In Chimel v. California, the Court recognized that the Fourth Amendment permits warrantless searches of the arrestee and areas within his immediate control if necessary to protect officer safety or to preserve evidence.
· In Arizona v. Gant, the Court held that officers may search a car incident to arrest if the arrestee is unsecured and within reaching distance of the passenger compartment or if the officer reasonably believes evidence of the crime of arrest may be found.
Because there were no such exigent circumstances present in Riley or Wurie’s arrest, the Court concluded that the need for cell phone data searches does not outweigh the corresponding intrusion on individual privacy, and thus a warrant was required. This of course is the right result. Digital cell phone data does not, by itself, of course, threaten officer safety. And a warrantless search of cell phone data is not necessary to preserve evidence. The Court recognized an individual’s privacy interest in digital cell phone data is considerable: cell phones have immense storage capacity, collect many types of records in one place, and often contain years’ worth of data.
In this regard, today’s decision is a victory for privacy rights. Law enforcement officers will not be permitted to conduct warrantless searches of cell phones for digital evidence. But if you are arrested, don’t assume law enforcement will let you keep your phone. Today’s decision may not allow for a warrantless search of your phone, but there is nothing prohibiting law enforcement from securing a phone post-arrest and seeking permission from a court to search it. And the chances that a court will grant such a request are close to 100%.
Last month police raided the home of an Illinois man who created a parody Twitter account of his city’s mayor. No charges were brought against the man because the prosecutor determined that no crime had been committed, however the man’s roommate has been indicted for possession of marijuana that was found during the overzealous raid of their residence.
Jon Daniel created the Twitter account @peoriamayor that mocked Peoria, Illinois, Mayor Jim Ardis. The Twitter account originally included a photo of Ardis, his official email address, and a brief biography. Later, the account explicitly stated that it was a parody account.
The Peoria Police Department submitted search warrants to Twitter, Google and Comcast in order to determine who was behind the Twitter account. Using the information obtained from those warrants to investigate a potential misdemeanor false personation offense, the police obtained a warrant to search Daniel’s home. During the raid police seized several computers, phones, and a bag containing a “green leafy substance.”
The Peoria County State’s Attorney’s office later concluded that they could not bring charges against Daniel for false personation because the offense could not be committed over the Internet. The false personation statute at issue in this case is a new Illinois law that went into effect earlier this year. The law makes it a misdemeanor offense punishable by up to one year in prison when a person, “knowingly and falsely represents himself or herself to be . . . a public officer or a public employee or an official or employee of the federal government.” The State’s Attorney’s Office has defended the decision of the police to obtain a search warrant stating that the police acted in good faith believing that they had probable cause to believe that a crime had been committed.
The American Civil Liberties Union of Illinois has said that it anticipates bringing litigation against the city of Peoria over the police raid on Daniel’s house.
Daniel’s roommate, Jacob Elliot, was charged with felony marijuana possession as a result of marijuana that police found during the raid of their home. Elliot spent two days in jail before he was able to make bail, and was also suspended from his job. Despite the police being misguided in their belief that Daniel had committed a crime which served as the basis of the warrant that led to the discovery of the marijuana, the Peoria County State’s Attorney’s Office is moving forward with charges against Elliot. Elliot was indicted last week on two charges of marijuana possession, including one felony charge.
Public officials have long been the target of parody, and social media has made it even more prevalent. If anything, this is an issue that could have been resolved civilly, though given the high standard for a public official to bring forth a defamation claim that avenue would most likely have been unsuccessful. More importantly, valuable police resources were wasted at the behest of a public official who was the subject of parody and this could have a potentially chilling effect on free speech. Statutes like the one responsible in this case are unnecessary and lead to the encroachment of an individual’s First Amendment rights.
In a recent opinion, the US Court of Appeals for the 6th Circuit addressed whether it was constitutionally reasonable for police to use a doctor – in this case, a doctor “who is known to conduct unconsented intrusive procedures when suspects are presented by the police” – to forcibly recover drugs from a man’s rectum. Judge Julia Smith Gibbons’ dissent notwithstanding, the 6th Circuit found that it was not reasonable, opining that the doctor’s behavior “shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process.”
The case, United States v. Felix Booker, came to the appeals court from the Eastern District of Tennessee. It began just before noon on August 12, 2010, when K-9 officer Daniel Steakley pulled Booker over for expired plates. The stop quickly escalated into a drug search. Steakley had arrested Booker earlier the previous year. Although Steakley’s drug-sniffing dog and a physical patdown yielded less than a gram of marijuana, Steakley called for backup and immediately arrested Booker for felony possession of marijuana. Tennessee law designates anything less than 14.175 grams a misdemeanor, worthy of only a citation.
Apparently the arrest was based on the officer’s suspicion that Booker was hiding contraband on his person. According to the officers, Booker fidgeted with the back of his pants during the traffic stop and at the police station following his arrest. They subjected Booker to an even more intrusive patdown in the interrogation room and to a strip search at the detention facility. No contraband was retrieved from either, but the officers weren’t done with Booker. They transported him – naked, shackled, and covered only in a blanket – to a local emergency room. There they presented him Dr. Michael LaPaglia, the attending physician.
LaPaglia told Booker that he needed to examine his rectum and extract any items found there. Booker refused. LaPaglia informed Booker that he had little choice in the matter, injected Booker with muscle relaxants and probed his rectum, manually. When that search failed to produce any contraband, LaPaglia ordered general anesthesia and had Booker intubated for nearly an hour. LaPaglia then paralyzed Booker and successfully extracted what previous probes had failed to retrieve, five ounces of crack cocaine.
This was the third time in three years that officers from the sheriff’s department had sought LaPaglia’s assistance in extracting evidence from a suspect. This time, however, Booker appealed his conviction and the 6th Circuit reversed — on the grounds that LaPaglia in conjunction with the Oak Ridge Sheriff’s department had violated Fourth Amendment protections against illegal search and seizure.
After addressing why the doctor’s conduct was attributable to the police, the Court examined the reasonableness of the search by weighing the following three factors: (1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. In its analysis, the court highlighted the doctor’s failure to employ the less intrusive means used by U.S. Customs and Border Protection: an x-ray to confirm the presence of contraband, monitored bowel, and only engaging in an involuntary body cavity search after obtaining a court order.
The line between zealous police work and the violation of civil liberties can be fine. In Booker’s case, however, that line was egregiously and recklessly crossed with the help of a doctor, all too willing to set aside his oath: “First, do no harm.”
Privacy and national security interests are notoriously tricky to balance. Lean too far one way, and you lose an important tool in preventing and detecting crime; lean too far the other way, and you are depriving Americans of their liberty through persistent government intrusion and observation. This balancing act has been an especially hot topic given recent revelations about the National Security Agency’s surveillance and data-gathering networks. While attention has been focused on the NSA and the mass surveillance disclosures that took place earlier this summer, a particularly startling revelation about the FBI’s actions has flown largely under the radar.
A recent New York Times article revealed that the FBI has been gathering information from suspects by remotely hacking into their electronic devices and covertly tapping into the information that can be found on and through the devices. The FBI accomplishes this in much the same way that criminal, civilian hackers do: by delivering spyware to the devices through web or email links. When the user clicks on the link, either on a computer or a smartphone, the government can use the spyware either to collect existing files or to activate the device’s recording devices for continuing surveillance. According to the article, one former U.S. official confirmed that the FBI can remotely activate the microphones in phones running the Android operating system to record conversations.
This sort of government intrusion goes well beyond the NSA’s acknowledged collection of telephone and email metadata. This spyware is programmed to collect full conversations, real-time photos and videos, and stored files of all types, from devices that people have near them 24 hours a day. This type of intrusive government intrusion into a device in which an individual has a reasonable expectation of privacy is the type that the Constitution’s Fourth Amendment is meant to address. And, in theory, it does. The FBI and other law enforcement agencies are required to obtain a warrant each time that they implement this technology to gather content such as computer files, and must meet a stricter standard for wiretaps when conducting surveillance using the webcam or microphone.
As technology advances, it becomes easier for the government to watch our every move. Whereas once the government could listen to conversations only on wiretapped telephones or bugged areas, it is now able to keep an open microphone on a device that people keep on them no matter where they are. We hope that law enforcement and the courts will seek and allow the use of this incredibly invasive and effective technique only rarely where no other surveillance is sufficient and not as a matter of course in standard investigations.
A split among the U.S. courts of appeals is taking shape over the threshold requirements for the government’s ability to obtain historical cell phone location data, in the wake of a July 30, 2013, ruling by the U.S. Court of Appeals for the Fifth Circuit.
That court held that a U.S. district court must order a cell phone service provider to produce a subscriber’s cell site data when the government presents specific and articulable facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation.
The case began in 2010, when federal authorities in the Southern District of Texas filed applications for cell phone data in connection with three criminal investigations. The applications, submitted under § 2703(d) of the Stored Communications Act, requested 60 days of subscriber information and cell site data for specific cell phone numbers.
Section 2703 states that the government may require third-party service providers to turn over their subscribers’ cell phone data as long as the requisite burden is met. Generally speaking, authorities may obtain substantive communications, i.e., “content” records, without notice to the subscriber, but only based on probable cause as required by the Fourth Amendment. “Non-content” records, on the other hand, may be obtained on a lesser showing.
Thus, service providers may be compelled to turn over details of a subscriber’s call history, including numbers called, session times, and the duration of calls. To obtain non-content data, the government must offer “specific and articulable facts showing that there are reasonable grounds to believe that the . . . information sought [ is] relevant and material to an ongoing criminal investigation.” The statute provides that an order may be issued by any court of competent jurisdiction and shall be issued only if the government makes the required showing.
The magistrate reviewing the applications granted the government’s requests for subscriber information but denied the requests for cell site data. Although the government had met its burden under the statute, the magistrate held that compelled production of location data would constitute a warrantless search in violation of the Fourth Amendment. The district judge affirmed.
On appeal, the Fifth Circuit considered two issues. First, the court considered whether the Act requires the issuance of an order for non-content records when the government meets the “specific and articulable facts” standard or, alternatively, whether district courts may impose a higher burden. Second, the court considered whether the compelled production of cell site data constitutes a “search” under the Fourth Amendment.
On the first issue, the court held that an order must issue when the government meets the “specific and articulable facts” standard: the test is both a necessary and sufficient condition for an order under § 2703. The court resolved the tension between the statute’s permissive and mandatory terms by explaining that any court of competent jurisdiction may order the production of historical location data; but, if the government meets its burden under the statute, the court must issue an order compelling production of non-content data. Under such circumstances, district courts may not deny the government’s request or impose a warrant requirement.
The Fifth Circuit answered the second question by holding that compelled production of cell site data is not a “search” under the Fourth Amendment. The court’s decision rested on its conclusion that location data are simply the service provider’s business records, not data from a tracking device. As the court explained, the service provider stores and collects cell site data voluntarily for its own business purposes, not on behalf of the government. Additionally, the records concern commercial transactions to which the service provider is a party. Unlike content data, the subscriber’s location information is intended solely for the provider, who needs it to complete the subscriber’s calls.
The court explained further that subscribers do not have a reasonable expectation of privacy in cell site data. Subscribers know full well that phone service depends on transmission of the caller’s location data. And even if that were not common knowledge, subscribers would still have no reasonable expectation of privacy in location data because the provider’s terms of service and privacy policies explain how the data are used, collected and stored. Armed with that knowledge, subscribers make informed choices about whether and how they use their cell phones.
The Fifth Circuit opinion is fascinating, especially because of the tension it creates with a Third Circuit case decided just weeks before the government filed its applications in Texas. Like the Fifth Circuit, the Third Circuit considered whether a court may deny an order for historical non-content records when the government makes the requisite showing under § 2703(d).
First, that court held that orders based on “specific and articulable facts” are not per se unconstitutional. But unlike the Fifth Circuit, the Third Circuit held that § 2703(d) establishes the conditions necessary, but not the conditions sufficient, for an order. In other words, courts can still require probable cause in limited circumstances. The court’s holding followed logically from its conclusion that, at least in some cases, cell phones are like tracking devices. And when historical cell site data is used to track a suspect’s physical movement in places where the suspect has a reasonable expectation of privacy – the home, for example – the Fourth Amendment may require a showing of probable cause. The Third Circuit held that, in such cases, district courts may require a warrant.
Disputes over government access to historical cell site data are far from over. If these cases are any indication, these rulings will hinge on whether courts deem cell phone location data to be more like third-party business records or more like data from a tracking device. Since a clear split among the circuit courts seems to be developing, it appears fairly likely that the U.S. Supreme Court will take up the issue soon.
In a decision issued today that could potentially change the way police operate in the Big Apple, U.S. District Judge Shira A. Scheindlin (S.D.N.Y.) ruled that, for years, New York City police officers have been systematically stopping innocent people in the street without any objective reason to suspect that they were engaged in any kind of wrongdoing. The 195-page decision, issued after a lengthy trial, accuses the NYPD of a widespread disregard for the Fourth Amendment – particularly as the “stop-and-frisk” episodes soared in number over the last decade. To address the issue, Judge Scheindlin said she planned to designate an independent private attorney as a monitor for the police department’s compliance with the Constitution.
Judge Scheindlin’s ruling is a brave rebuke to the department’s increasingly aggressive policing policies.During the two-month trial, the court heard testimony regarding some 4.3 million stops between 2004 and mid-2012. The U.S. Supreme Court has long sanctioned stopping and frisking an individual based upon reasonable suspicion that he or she is engaged in wrongdoing. But experts testified in the trial that in about 88 percent of the stops, police found no contraband or other evidence of illegal behavior – an incidence so high that it suggests that there was no credible basis on which to stop many of those individuals in the first place.
Given that the individuals in question were usually young minority men, a policing policy that essentially permitted police to treat as suspicious behavior that was perfectly innocent had the effect of watering down the Constitution’s protection against illegal searches and seizures. In her ruling, Judge Scheindlin rejected the testimony of numerous police officers and commanders who typically defended the legality of stops and said that they were made only when officers reasonably suspected criminal behavior.
Judge Scheindlin’s ruling in the case comes on the heels of what some have characterized as an effort by the administration of NYC Mayor Michael Bloomberg to influence the judge or to create some kind of extrajudicial bias against her ruling in the Second Circuit Court of Appeals (which will doubtless be hearing an appeal of this decision). In June, the mayor’s office offered to a number a press outlets a “study” it had conducted that purported to show that Judge Scheindlin grants motions to suppress evidence for constitutional violations in a much higher percentage of criminal cases than do her colleagues in the Southern District of New York. Today’s decision certainly makes clear that Judge Scheindlin was not influenced by those communications in favor of the city, and it is left to be seen whether press reports on that study will have the unlikely consequence of influencing the appellate court.
Judge Scheindlin’s decision is important because it seeks to address constitutional violations on an institutional level and also because it addresses those violations that befall individuals who are not charged with any crime. In a case in which a person faces criminal charges, he or she usually can challenge the admission of physical evidence or his or her own statements based on a claimed violation of constitutional rights, and a favorable ruling will result in the exclusion of that evidence from any trial on those charges. But for a person whose civil rights are violated by an illegal search that results in no criminal charges, the recourse is less obvious.
While there are circumstances in which an individual could sue individual police officers based on an illegal search, the burdens of litigation and the proof required usually are high enough that few if any people pursue such cases. Indeed, a police department policy that encouraged officers to engage in searches of questionable legality appears to rely on those disincentives to protect the officers and the department from liability and scrutiny. By finding an institution-wide set of violations, and by imposing a requirement that an independent monitor ensure compliance, Judge Scheindlin’s ruling (if upheld on appeal) has the potential to provide a more reliable guarantee of constitutional rights to New Yorkers.
If some will decry the decision as threatening the ability of police to control crime, they have forgotten the historical lessons about the importance of safeguarding the rights of minorities in our country, and the important role that the Constitution plays in protecting the rights of the innocent.
The U.S. Supreme Court’s decision in the landmark 1966 case of Miranda v. Arizona underlined the importance of the Fifth and Sixth Amendments and drew a line that law enforcement must not cross – all in the interest of protecting individuals’ constitutional rights. Unfortunately, however, the high court was not as clear regarding the level of protection required under the Fourth Amendment in its 2012 decision in United States v. Jones.
In Jones, the Court held that a Fourth Amendment “search” occurs, and a warrant is required, when a GPS tracking device is attached by law enforcement to a person’s vehicle and then used to track its movements. Remaining unclear from the opinion, however, was whether and when such searches could be ever be exempt from the warrant requirement. Further unclear was whether the ruling would apply to other technologies, such as smartphones and OnStar systems.
Because of these ambiguities, and magnified by developments in location technologies, Fourth Amendment and privacy rights are giving way to aggressive law enforcement – and courts are divided on the propriety of these tactics. The Obama Administration recently argued before the U.S. Court of Appeals for the 3rd Circuit that the Supreme Court has given the government broad exemptions to search warrant requirements (such as the “reasonable suspicion” and the “probable cause” exceptions) and that device tracking can fall under these exemptions.
Far more troubling, however, is a recent opinion by a federal magistrate in New York in which U.S. Magistrate Judge Gary Brown effectively eviscerated Fourth Amendment protections for device tracking. Brown ruled that a search warrant is not necessary for authorities to obtain real-time location information for a suspect’s cell phone. Brown held that “phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.” The magistrate’s opinion would mean that we are all effectively giving our consent to search by virtue of using a ubiquitous (and near-essential) technology.
Brown’s opinion contrasts starkly with Justice Sonia Sotomayor’s concurring opinion in Jones, in which she noted:
People disclose the phone numbers that they dial or text to their cellular providers, the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
The contrasting statements among the courts have reinforced the need for Congress to step in and circumscribe law enforcement tracking tactics. Currently before the House are both H.R. 983, the Online Communications and Geolocation Protection Act and H.R. 1312, the Geolocation Privacy and Surveillance Act. Both bills are aimed at providing a legal framework for when and how location tracking devices can be used, and when and how data location records may be obtained. Both bills were introduced during the last Congress and reintroduced during this term. With bipartisan support, hopefully they will get traction. In the meantime, you may want to keep your cell phone powered off.