Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘Fourth Amendment’
Mar 11

Court: Data on Unsecured Network May Qualify for 4th Amendment Protection

The vast increase in the use of wireless data networks has led to new legal issues regarding network users’ right to privacy. A recent opinion issued by the U.S. District Court for the District of Oregon indicates that, under some circumstances, individuals on an unsecured wireless network have a reasonable expectation of privacy entitling them to Fourth Amendment protection. As a result, police officers must obtain a warrant prior to accessing files on that network.

In United States v. Ahrndt, defendant John Henry Ahrndt moved to suppress evidence that a police officer obtained by accessing Ahrndt’s wireless home network and opening files without a search warrant.

In February 2007, one of Ahrndt’s neighbors connected to Ahrndt’s unsecured wireless internet network. When she opened her iTunes program, she was able to see “shared” files from Ahrndt’s iTunes and LimeWire accounts, and saw a number of titles indicative of child pornography.

The neighbor did not open any of the files, but called the police to report what she saw. A deputy came to her house and she showed him the file names as she had seen them. The deputy asked her to open one of the files. When she did, it opened an image of child pornography.

The deputy questioned the neighbor about whom the unsecured wireless network might belong to. She indicated that the network had been available since she moved into the building, and at the time Ahrndt’s home was the only other one that was occupied. The police ran the license plate of a car parked outside of the home and identified it as belonging to Ahrndt, a convicted sex offender.

Using a general description of what the neighbor and deputy recalled seeing in the list of file names, the police applied for and received a search warrant to access the wireless network again in order to get an IP address. The police then served a summons on the Internet provider. The provider disclosed that Ahrndt was the subscriber in question.

Using that information, the police obtained a search warrant for Ahrndt’s home. They ran a forensic search of his computer and identified images of child pornography in various folders. The forensic report did not mention either iTunes or LimeWire.

In considering the motion to suppress the evidence obtained through the initial warrantless search, the court concluded that it would have been appropriate for the deputy to view the titles of the files without a warrant, since a private party (the neighbor) had already viewed those files and told the police about them. However, the court concluded that it was a violation of Ahrndt’s Fourth Amendment rights for the police to instruct the neighbor to open the file, which she had not previously done. The opened image was no longer within the purview of private search, but a government search.

The court also found that Ahrndt’s privacy expectations were not eliminated by accessing an unsecured wireless network. There was no evidence that Ahrndt had intentionally enabled sharing for those files; rather, the default setting of the LimeWire program enabled sharing. It was Ahrndt’s reasonable belief that those files were contained only on his hard drive, and not shared on a public network. The court said that “[i]n short, the government does not dispute a person has a reasonable expectation of privacy in the files on his home personal computer.”

The court concluded that, lacking specific file names and a description of images, a magistrate would not have found probable cause to issue a search warrant. The only evidence that the police viewed lawfully was the file names, which the neighbor and deputy could not remember with specificity. Since the “partial recollections and characterizations” were too general to support a warrant, all related evidence from the unlawful search must be suppressed.

The court came to the right conclusion on this one. Our reliance on the Internet has become such that what is on our computers is as personal and private as the inside of our homes. The government is no more entitled to search our computer without probable cause than to search our homes. This case does not represent a free pass to intentionally share information on wireless networks and then assert Fourth Amendment rights when the government comes knocking. Rather, it is only that information to which an user has a reasonable expectation of privacy—such as files that he is not aware are accessible to others—that is protected against the government’s unlawful search and seizure.

It’s easy to see how this has implications for potential white-collar cases: the government might try to use financial information unintentionally made available to a neighbor through an unsecured network as a basis to initiate a financial fraud investigation. We hope that the courts will rely on this case and suppress any evidence obtained as a result of this type of unlawful search.

Jan 27

High Court: Police Tracking of Suspect Via GPS Requires Warrant

Last November, we discussed the U.S. Supreme Court’s oral argument in United States v. Jones, which posed the question of whether police need to obtain a warrant before attaching a GPS device to a suspect’s vehicle during a criminal investigation.

We noted that in this case, 21st-century technology had come face to face with the constitutional requirements of the Fourth Amendment. We were hoping that the high court would uphold the U.S. Court of Appeals for the D.C. Circuit and hold that this action is a search that requires a warrant, but we took a pass on predicting what the Court would actually do.

On January 23, 2012, the Court decided the case – unanimously against the government and in favor of defendant Antoine Jones. The decision is fairly gratifying for those of us who believe it desirable to curb prosecutors’ power by imposing restrictions upon it, including, where appropriate, the requirement of a judge-issued warrant.

It turns out that both the advocates of the original-intent approach to constitutional interpretation, epitomized here and in general by Justice Antonin Scalia, and those who prefer the doctrine of the “living Constitution,” led here by Justice Samuel Alito, agree that the use of a GPS device by the government constitutes a search and requires a warrant.

Scalia, writing for a majority of the Justices, observed that prosecutors had intruded upon Jones’ property in way that would have been a “trespass” under common law.

Prosecutors “physically occupied private property for the purpose of obtaining information,” Scalia wrote. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” And for Scalia, that fact alone was enough to decide the case.

Alito, joined by three Justices who concurred in the result, used quite a different line of reasoning and sharply criticized Scalia’s majority opinion, saying that ironically, it relied upon 18th-century tort law to decide a case involving 21st-century technology.

“This holding, in my judgment, is unwise,” Alito wrote. “It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.”

Instead, Alito wrote, he “would analyze the question presented in this case by asking whether [Jones’] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Alito observed that for decades, the Court has invoked the concept of “reasonable expectations of privacy” in a number of cases to define the nature of a “search” under the Fourth Amendment and to expand the definition of “search” to actions that do not involve a trespass to someone’s property.

Even though Alito is often identified with the pro-prosecution, conservative wing of the Court, he took the defendant’s side in this case. As our blog post last November noted, at oral argument Alito expressed concern about how easy it is these days “to amass an enormous amount of information about people” by the use of today’s technology.

Alito’s opinion followed similar lines. In the absence of legislation about police use of GPS tracking, he wrote, “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”

This is good news for constitutional rights and for defendants. Whatever approach one takes to the Fourth Amendment, it’s clear that prosecutors can’t attach a GPS to a suspect’s car without a warrant.

Nov 16

High Court Hears Argument in GPS Fourth Amendment Case

In August 2010, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit ruled that if police wish to attach a GPS device to a criminal suspect’s car without a warrant, they first need to go to a judge and obtain a warrant based on probable cause.

The act of attaching such a device to a vehicle, the court said, is a “search” that requires a warrant under the Fourth Amendment because this type of surveillance is so pervasive and invasive that no one would have a reasonable expectation that it would occur. At the time, we expressed agreement with the appeals court’s ruling, and we continue to hold that view.

On November 8, 2011, the U.S. Supreme Court heard argument on this important case, in which 21st-century technology came face to face with the constitutional requirements of the Fourth Amendment. The case is United States v. Jones, No. 10-1259, and grows out of the placing by D.C. police of a GPS tracker on the Jeep Cherokee belonging to Antoine Jones, then a nightclub owner in the District of Columbia. The surveillance led to the seizure of 97 kilograms of cocaine and $850,000 in cash, but the D.C. Circuit threw out the conviction.

The justices did not seem to tip their hand for either side in the argument, asking difficult questions both to the attorney from the U.S. solicitor general’s office who argued in favor of the surveillance and to the lawyer for the arguing in favor of Jones.

Justice Samuel Alito put the question very clearly early in the argument: “It seems to me the heart of the problem that’s presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy . . . that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information.”

“But with computers,” Justice Alito continued, “it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public. . . . So how do we deal with this? Do we just say, well, nothing is changed, so that all the information that people expose to the public – is fair game? There is no search or seizure when that is obtained, because there isn’t a reasonable expectation of privacy?”

Michael Dreeben of the SG’s office replied that this case actually does not involve a “particularly dramatic change,” and that if society wishes to deal with GPS surveillance directly, the remedy would be in the passage of legislation.

Later, in response to vigorous questioning by the Justices, Stephen Leckar, arguing for Jones, said, “I think the workable rule and the simplest rule that should be adopted is this. I think the Court should say to the law enforcement agency: You came here looking for a rule; we are going to give you a rule. If you want to use GPS devices, get a warrant, absent exigent circumstances or another recognized exception to the Fourth Amendment.”

Leckar’s view continues to make sense to us. It is very difficult, based on the argument, to predict what the high court will actually do.

Nov 03

ACLU Wins FOIA Appeal on Prosecutors’ Use of Cell Phone Location Data

For some time now, the American Civil Liberties Union has been concerned about some federal prosecutors’ practice of seeking court orders to track the location of people’s cell phones without probable cause, arguing that this practice infringes on privacy rights and violates the Fourth Amendment. Last month, the ACLU claimed victory in one of several cases making its way through the court system.

After a four-year battle, the U.S. Court of Appeals for the D.C. Circuit ordered the Department of Justice to comply with a 2007 Freedom of Information Act request from the ACLU and turn over the names and docket numbers of numerous cases in which the government accessed cell phone location data without probable cause or a warrant.

Using a GPS chip inside a cell phone, law enforcement agency can locate a person to within about 30 feet. They are also able to gather less exact location data by tracing mobile phone signals as they ping off cell towers. In 2007, the ACLU filed a FOIA request seeking the policies and procedures used by the DOJ in obtaining this cell phone data.

This request was part of a campaign undertaken by 34 ACLU affiliates that filed more than 375 requests in 31 states with law enforcement agencies large and small, seeking to uncover when, why, and how law enforcers were using cell phone location data to track people. Applications by law enforcement for court orders tracking the location of people’s cell phones are generally filed under seal, and the court’s response to such requests is also generally secret. The result, the ACLU argues, is that the law governing when the government may secretly track a person’s cell phone is itself largely secret.

When the government refused to respond adequately to the FOIA request, the ACLU, along with the Electronic Frontier Foundation, sued for the case names and docket numbers for cases where individuals were criminally prosecuted after cell phone location data was accessed without a warrant. U.S. District Judge James Robertson ordered the DOJ to produce the information, at least in cases that ended in a conviction or guilty plea. The DOJ appealed, but last month, the U.S. Court of Appeals for the D.C. Circuit upheld the lower court and ordered the DOJ to make that information public. The ACLU had also requested information on cases where the defendant was not convicted. The court sent that question back to the District Court, and it remains unresolved.

The DOJ could possibly appeal to the Supreme Court, which already has agreed to consider another privacy case involving GPS technology.  We have written about that case before. In that case, which will be argued later this year, the issue is whether police should have obtained a warrant before attaching a GPS device to a suspect’s vehicle.

With advancing technology, this type of case will continue to dot the legal landscape, as courts try to balance law enforcement needs with individual privacy rights. Given the importance of these cases, legislation governing cell phone tracking is in order.

Dec 15

ISPs Take Note: Court Rules E-mails Have Full 4th Amendment Protection

The U.S. Court of Appeals for the 6th Circuit has just issued a trail-blazing opinion that is good news for anyone who has ever sent an e-mail – and that needs to be carefully read and adhered to by all Internet service providers (ISPs).

We noted six months ago that ISPs have been all too ready to satisfy prosecutors’ requests for access to customer e-mails stored on their servers. We said that prosecutors are routinely using subpoenas, rather than search warrants, to obtain e-mails from ISPs, and that subpoenas can be issued under a much lower standard than the probable cause standard used for search warrants. They require, rather than probable cause, only a reasonable possibility that the materials or testimony sought will produce information relevant to the general subject of the investigation.

The ISPs’ attitude, we said, meant that anyone who uses the Internet risks intrusion from unlawful government surveillance practices.

Now, in a thoughtful and unanimous opinion in United States v. Warshak, the 6th Circuit has written a ringing affirmation of the principle that e-mail must be treated like a letter or a phone call under the Fourth Amendment. Prosecutors can get hold of a suspect’s or witness’s e-mail from an ISP, but only if they first go before a judge and obtain a search warrant.

In Warshak, the U.S. attorney obtained 27,000 private e-mails sent to and from the defendant, Steven Warshak, after a warrantless search directed at Warshak’s ISP. Warshak was convicted of a great many fraud and money-laundering-related counts and challenged his conviction, seeking a ruling that the e-mails should have been excluded from evidence, among other arguments.

The appeals court wrote, “If we accept that an e-mail is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an e-mail without triggering the Fourth Amendment. An ISP is the intermediary that makes e-mail communication possible. E-mails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is.”

The court noted that “e-mail requires strong protection under the Fourth
Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.” An e-mail is no less private, by tradition and practice, than a letter or phone call.

In the Warshak case, the court declined to exclude the e-mails from evidence, finding that the prosecutors had acted in good faith reliance on provisions of the Stored Communications Act.

But as a matter of broad constitutional principle, the 6th Circuit has set forth a convincing case that e-mails are entitled to Fourth Amendment protection. The Supreme Court has not ruled on the issue, but even in the absence of a high court ruling, it is time for ISPs to resolutely refuse to provide customer e-mails to law enforcement unless a warrant has been obtained.

Sep 27

Fourth Amendment the Loser in BALCO Ruling

A recent ruling of the U.S. Court of Appeals for the 9th Circuit is a win for Major League Baseball players whose drug-testing records must now be returned to them after they were improperly seized in a 2002 federal steroids probe.

But it’s not a win for Fourth Amendment values.

In a September 13, 2010, en banc ruling, the appeals court took a major step away from an endorsement of the fairly strict guidelines for government searches and seizures of electronic data that it had handed down in the same case last year.

After this rehearing by the full court, which had also handed down the 2009 opinion, the guidelines, which are intended to apply to broad searches for electronic data in the future, became merely a nonbinding concurring opinion rather than part of the majority opinion by Chief Judge Alex Kozinski.

Only five judges, including Kozinski, signed on to the opinion, as opposed to eight who had endorsed it a year ago.

The case grew out of the federal investigation of Bay Area Lab Co-operative (BALCO) in 2002. At that time, Major League Baseball players had agreed to submit to anonymous testing for steroids. When the government seized the records of an independent drug-testing company known as Comprehensive Drug Testing, it ended up with electronic data on more than 100 players. Some of those names were leaked to the public.

As the attorney for the Major League Baseball Players Association told the press after the ruling, the players are still the winners after the current en banc decision, as they were a year ago. Comprehensive Drug Testing must return the information to them.

However, Kozinski’s efforts to lay down clear rules to limit future electronic searches ended up only as a concurring opinion not necessary for the court’s ruling on the drug data.

Kozinski wrote in the concurring opinion that he had wanted to provide “guidance about how to deal with searches of electronically stored data in the future so that the public, the government and the courts of our circuit can be confident such searches and seizures are conducted lawfully. The guidance below offers the government a safe harbor, while protecting the people’s right to privacy and property in their papers and effects.”

For example, he wrote in the opinion, “the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation.”

We think that this appeals court has backtracked on an important Fourth Amendment issue and that broad data searches that impinge on people’s property rights may well occur again.

The case can be found at  A good article summarizing it is at

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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