warrantless searches

Google at Your Own Risk - the FBI could be Watching

Google - Robert Scoble (CC)

Riddle me this, riddle me that. Who’s afraid of the big government?

Taking a little literary liberty by twisting the line of the Riddler there, but it does seem fitting at this moment to call that twisted character to mind right now. Only a villain with his particular brand of psychosis should be able to understand the logic of the latest legal debacle facing the internet giant, Google right now.

Anyone that was smart enough to point out that the Patriot Act wasn’t necessarily the smartest move to make in the wake of the 9/11 attacks can gloat a little now. But, that is cold comfort, given the current situation. In a ruling dated May 20, U.S. District Court Judge Susan Illston ordered Google to comply with the FBI’s demands to turn over search data requested in “secret letters.”

It is assumed that the legal wrangling is not over, since Illston put her ruling on hold until the 9th U.S. Circuit of Appeals could decide on the matter. As reported by the Associated Press and Fox News:

Illston’s May 20 order omits any mention of Google or that the proceedings have been closed to the public. But the judge said “the petitioner” was involved in a similar case filed on April 22 in New York federal court.

Public records show that on that same day, the federal government filed a “petition to enforce National Security Letter” against Google after the company declined to cooperate with government demands.

Today in Liberty: Intel agencies conducted warrantless searches for Americans’ communications, Halbig case could gut Obamacare

“I think that you can’t start to pick apart anything out of the Bill of Rights without thinking that it’s all going to become undone. If you take one out or change one law, then why wouldn’t they take all your rights away from you?” — Bruce Willis

Obama Administration wants to search your cell phone without a warrant

Even as the Obama Administration tries to play down the NSA’s surveillance of Americans, they’ll make the argument before the Supreme Court that law enforcement can search through Americans cell phones without a warrant:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

WaPo: NSA breaks privacy rules thousands of times each year


President Barack Obama can keep making late night talk show appearances and giving speeches about restoring Americans’ trust in the government if he wants, but new revelations about privacy violations may have made that task a little tougher.

The Washington Post reported late Thursday evening that the National Security Agency (NSA) has broken privacy rules 2,776 times in just the last 12 months, according to an internal audit provided to the paper by Edward Snowden, the NSA whistleblower (emphasis added):

Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.
The Obama administration has provided almost no public information about the NSA’s compliance record. In June, after promising to explain the NSA’s record in “as transparent a way as we possibly can,” Deputy Attorney General James Cole described extensive safeguards and oversight that keep the agency in check. “Every now and then, there may be a mistake,” Cole said in congressional testimony.

5 items in the PRISM report you need to read

Last week, the Congressional Research Service released a report on the National Security Agency’s domestic spying programs. Essentially, it is a “What You Need To Know, Mr. Representative” memo, mostly a summary of issues that have already been discussed publicly at length. It is nonetheless a useful document for the public to catch up on what is known.

Packed in its 15 pages are a number of interesting datapoints, with these being the big things you should know:

1. The standard for investigation is subjective.

The report notes the authority to investigate and take someone’s domestic phone records is invoked by crossing a very low bar. Section 50 USC § 1861 (b)(2)(a) asks that an investigator submit “a statement of facts showing there are reasonable grounds to believe” an investigation is necessary. The report notes there is no statutory definition of “reasonable grounds,” though it speculates that the standard is probably less stringent than “probable cause” and may be merely a synonym for “reasonable suspicion.”

Moreover, federal statute authorizes law enforcement to obtain personal communications data if “there are reasonable grounds to believe” that data is “relevant and material to an ongoing investigation.” There’s no definition of relevancy, either. Relevancy, instead, is “generally understood” (the report’s words) to require “only that the information sought would tend to prove or disprove a fact at issue.”

In today’s surveillance world, that doesn’t serve as much of a check on government snooping. If agents believe your records of ordering pizza (or ordering pornography) may disprove or prove some fact at issue, then they’ll be sure to get those records.

Texas takes the lead on e-mail privacy

While not a remedy for the NSA’s broad surveillance of Americans, Texans can at least take some comfort in knowing that state and local enforcement officials are now prohibited from rummaging around their e-mail without a warrant:

Gov. Rick Perry (R-Texas) signed HB2268 into law June 14, preventing all state and local law enforcement from rummaging through Texans’ email inboxes without a warrant.

The ground-breaking legislation gives Texas residents more privacy over their e-mails than anywhere else  in the U.S.

Pushback against law enforcement snooping came after 29-year-old state Rep. Jonathan Stickland (R-92), who represents an area between Dallas and Ft. Worth, added an amendment to the Texas House bill barring authorities from unwarranted email searches.

“Because of the overwhelming support the bill received in the House and Senate it is effective immediately. Before this landmark legislation, state and local officials had the ability to read your emails without a warrant if the email had been opened or had sat unopened in your inbox for longer than 180 days. That just didn’t make sense,” Stickland told Russia Today.

This law obviously has no impact on federal law or law enforcement agencies. That’s been an issue raised recently in Congress, and it could get a look due to the recent revelations about the NSA’s surveillance of Americans.

Deputy AG: Fourth Amendment doesn’t apply to phone records

Most Americans feel that the NSA’s access to their phone records is a huge invasion of their privacy. The fact that the government can see who they called, where they called from, and the duration is unnerving to many. But the government’s response to the outrage is — too bad, it’s legal.

Over at the Washington Examiner, Ashe Schow reports that Deputy Attorney General James Cole told members of the House Intelligence Committee that Americans have a reasonable expectation of privacy when it comes to third-party records:

Testifying before Congress on Tuesday about the National Security Agency’s collection of private American’s phone records, Deputy Attorney General James Cole stated that, “Under the law, the Fourth Amendment does not apply to these records.” He then cited a Supreme Court case that indicated “toll records, phone records like this that don’t include any content are not covered by the Fourth Amendment because people don’t have a reasonable expectation of privacy in who they called and when they called.”

Cole is, sadly, correct. Andrew C. McCarthy, senior fellow at the National Review Institute, recently wrote that federal courts have consistently upheld the government’s collection of phone records as those records belong to the phone company and not the individual who placed the call.

House members urge reform to protect e-mail privacy

Most Americans don’t realize that their e-mail messages, chats, and documents stored on cloud servers aren’t protected by current privacy laws. There have been efforts pushed in Congress and by groups from all across the ideological spectrum to reform these laws, but there has been little to show for it.

Even before the revelations about the NSA spying scandal became public knowledge, the Justice Department and IRS claimed that they could read Americans e-mails and web-based instant messages without obtaining a warrant, as the Fourth Amendment requires. The FBI wants even more authority than statutes currently allow to access online data.

Three members of the House — Reps. Kevin Yoder (R-KS), Tom Graves (R-GA), and Jared Polis (D-CO) — made the case yesterday for the Email Privacy Act, a bipartisan measure that would protect Americans’ electronic communications and cloud data, in an editorial at Wired:

Simply put, this bipartisan legislation would affirm what most Americans already assume — and have every constitutional right to believe — that their privacy is protected from unwarranted government intrusion.

DOJ Claims It Can Read Your E-mail without a Warrant

During the debate in the House of Representatives over cyber-security, the White House issued veto threat over CISPA due to Internet privacy concerns. Despite that strong stance on a controversial piece of legislation, there have been a number of news stories recently showing various government agencies willingness to ignore constitutional protections to gain access to e-mail and other forms of electronic communication and files.

In fact, it’s the official policy of President Barack Obama’s Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) that agents do not need a warrant when they want to gain access to e-mail and Facebook accounts:

The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

Senate Committee Moves to Protect E-Mail Privacy

Internet privacy

On Friday, the Senate Judiciary Committee passed legislation backed by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) that would amend the Electronic Communications Privacy Act (ECPA) to require that law enforcement obtain a warrant before it can search Americans’ e-mails and other online file:

A Senate committee today backed sweeping privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.

The Senate Judiciary Committee approved the package on a voice vote after about 30 minutes of debate, and sent the measure to the Senate floor, where it faces an uncertain future.

The legislation, (.pdf) sponsored by Sen. Patrick Leahy (D-Vermont), the committee’s chair, and Michael S. Lee (R-Utah) nullifies a provision of federal law allowing the authorities to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed if the content is 180 days or older.

Under the current law, the 1986 Electronic Communications Privacy Act, the government can obtain e-mail without a warrant as long as the data has been stored on a third-party server — the cloud — for 180 days or more. The government only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful to an investigation.

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