Broad-sweeping, Bulk Warrants in the Digital Age

Internet use among adults age 18 + has become the social norm. As of March 2014, 87% of the population (277,436,130) uses the internet. Many of these users access social media websites like Facebook. Facebook has quickly become the most widely used social media website in the United States. As of the 2014, 71% of American internet-users (196,979,652) say they utilize the social media website. Moreover, of the 71% of internet users in the United States, 70% report they use the website on a daily basis. In total, a whopping 137,885,756 Americans check or post on Facebook daily.

On July 23, 2013 the Supreme Court of New York ordered the execution of 381 search warrants aimed at Facebook users, the largest request in the website’s history, authorizing the District Attorney and investigators to seize information stored on Facebook’s servers. A gag order preventing Facebook from notifying any of its customers was also issued. These 381 warrants were identical in scope and were supported by a sealed ninety-three page affidavit from the District Attorney’s Office detailing a scheme by civil servants to defraud the Social Security System. The warrants required all information in twenty-four broad categories, basically covering every post or action the 381 users had taken on Facebook. In August of that same year, Facebook moved to quash the warrants on the grounds that they were a violation of the users’ Fourth Amendment rights. The court denied this motion stating that the website did not have proper standing due to its “Terms of User Agreement” delegating privacy decisions to the individual user. Facebook was compelled to comply with the warrants and gag order. It then appealed the decision. In June of 2014, the District Attorney indicted 62 of the charged individuals, leaving 319 people whose accounts were riffled through uncharged. The gag order, however, was lifted and the court proceedings were made public. On July 21 of this year, the New York Supreme Court Appellate Division upheld the lower court’s decision and denied Facebook’s motion to quash stating the social networking service had neither a constitutional nor statutory right to challenge the warrants’ legal sufficiency on behalf of its customers before the warrants were executed. 

Specifically, the New York Supreme Court Appellate Division explained that the Internet Service Provider (ISP) did not have statutory authority found in the Stored Communications Act (SCA) § 2703 to file pre-enforcement motions against warrants. The SCA allows for only subpoenas and court orders to be challenged prior to enforcement. This decision, while sound legal theory based on current statute, is cause for concern among privacy advocates for a couple of reasons. First, the broad, sweeping nature of the warrants enables irrelevant personal information to be seized. Second, the statutory ability of an ISP to contest subpoenas/court orders, but not search warrants.

The first point of concern is the broad nature of the warrants themselves. Probable cause for the warrants of each of the 381 users was provided by one, ninety-three page affidavit. While this is not immediate cause for concern, it is disconcerting when viewed in the light of the actual number of users charged as a result of the account seizures. While a New York judge found there was sufficient probable cause, the number of charged defendants from the search warrants was a mere 62. Assumedly, this means there was not sufficient evidence found in the other 319 user accounts and, consequently, these users had their personal correspondence and pictures seized in vein. Yet, based upon current precedent, this broad seizure of material is legal. As the Supreme Court of New York stated in the 2013 case, “the relevance or irrelevance of items seized within the scope of a search warrant may be unclear and require further investigatory steps.” This precedent would make sense in most contexts, but becomes dubious when the mass amount of data gathered is a user’s most personal information. Again, considering the small percentage of users charged via the warrants, a large amount of irrelevant personal information was undoubtedly seized. The court in 2015 even agreed that users “share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Moreover, according to Chris Sonderby, Facebook’s General Counsel, the warrants contained no date restrictions and allow the government to keep the seized data indefinitely.

This sets a concerning precedent for future mass “data dragnets” by the DA’s office considering the number of people utilizing social media, as well as the amount of personal information found on these websites. In the 2015 opinion, the court recognized that “Fourth Amendment protections are weaker in the digital context,” but then, within the same document, admitted that “Facebook users share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Thus, should stricter scrutiny be utilized for these broad electronic search warrants? Another facet that causes one to ask this question is that this situation is indicative of a growing trend by United States law enforcement. The U.S. leads the world in these types of Facebook seizures. Law enforcement in the United States utilizes Facebook seizures almost three times as much as the next country on the list. In fact, law enforcement in this country used 14,274 requests to seize 21,731 accounts from July 2014-December 2014 alone. This number is more than the four closest nations (France, UK, India, and Germany) on the list combined. 

A second point of concern arises from the statutory construction of the SCA itself. Currently, it leaves wide latitude for District Attorney Offices when they have a warrant because of the inability of an ISP to challenge them until the accounts are seized. The SCA gives three ways to obtain electronic information: (1) An administrative, grand jury or trial subpoena (see §2703(c) (2)); (2) A court order issued pursuant to § 2703(d); or (3) A search warrant (see § 2703(a)). Subpoenas are used in this context to obtain subscriber information like names, addresses, and credit card information. Court orders are used to gather transactional data (when the account is accessed, services used, and length of time online. Finally, warrants are utilized for stored electronic communications like Facebook accounts. 

The court explained that an ISP can only challenge court orders or subpoenas prior to execution, not warrants. This is per se reasonable because probable cause is required for a warrant, while “specific and articulable facts” that there are “reasonable grounds to believe” the information desired will be “relevant and material” are the only requirements for court orders and subpoenas. Yet, the warrants in this case are pertaining to personal information on a social media website; a website where the court admits “users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.” The probable cause standard for these warrants is a relatively strong privacy safeguard, but should the SCA allow a pre-enforcement challenge when this quantity of personal information is being collected? This contention seems reasonable when such warrants involve 381 individuals and, in the end, sufficient evidence was only found for 62 of them. Without a pre-enforcement ability, an ISP is forced to let the government vitiate the privacy of its users and can only step in once the damage is done. These ISPs must either comply and lose the trust of consumers, or not comply and face contempt charges. 

The SCA, however, is not without its positive aspects. One benevolent characteristic of the SCA that the court points out is that without it, ISPs would be governed by the outdated “Third Party Doctrine” established by Smith v. Maryland (holding limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant, only subpoena and prior notice are needed)¹. This 1979 decision paved the way for the NSA’s telephone metadata collection program that Snowden exposed. Ostensibly, the SCA creates privacy protections analogous to Fourth Amendment protections for digital communications stored on the internet. Thus, the passage of the SCA is certainly a step towards cementing online privacy in a world where more personal information is found online than in one’s home; yet, in its current construction, it still has room for improvement. 

Given the current social media status quo, this litigation should serve as a warning to those divulging personal information on social media. Even more important is the warning that District Attorney Offices may seize and access your accounts for an indefinite period of time. Even in the event the District Attorney Office does not find sufficient evidence to charge you with a crime, much like the 319 individuals who were not charged after their accounts were seized, there are few limitations on their access once the social media accounts are seized. 

By Joseph Collins

CLP Senior Staffer

¹(see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Michigan L Rev 561 [2009]).

Privacy, Technology, and the Fourth Amendment: "The Fourth Amendment in the Digital Age" Master Post

The following blog post contains all of the guest posts that the Criminal Law Practitioner published in anticipation of "The Fourth Amendment in the Digital Age" symposium.

View image | gettyimages.com

Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Uncovering Secret Surveillance

View image | gettyimages.com

It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public.  The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country.  The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays.  In this sort of environment, what’s a diligent criminal defense attorney to do?

Six Months’ Probation for a Crime Carrying a 4-year Minimum Sentence

That’s the unusual plea deal that Tadrae McKenzie struck earlier this year in a case involving a “stingray” – a controversial device being used by law enforcement around the country to track individuals’ movements and phone calls.

For more information on how these devices operate, click here.

During the course of his trial, McKenzie’s defense attorneys sought information on how exactly the police had tracked his location.  When the judge took the unprecedented step of requiring state prosecutors to demonstrate exactly how a stingray (also called “cell site simulators,” “dirtboxes,” and “IMSI catchers”) worked, they offered McKenzie a deal he couldn’t refuse to avoid disclosing information about the device.

Of Drones, Phones and Privacy Zones

View image | gettyimages.com

Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking Woman.  In the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.

Fourth Amendment in the Digital Age - April 3, 2015

Heien v. North Carolina: Is a Reasonable Mistake Enough to Warrant a Traffic Stop?

View image | gettyimages.com

Hein v. United States

Docket No.  13-604

Argument Date:  Oct. 6, 2014

HOLDING:    

On December 15, 2014, the Supreme Court of the United States decided that a police officer’s reasonable mistake of law was enough to establish reasonable suspicion to justify a traffic stop and that it did not violate the Fourth Amendment of the United States Constitution.

    

Your Pets and the Police

Dogs. They are man’s best friends. They give unconditional love and loyalty, asking for nothing in return. These animals become a part of the family. It is no wonder that there are approximately between 70-80 million dog owners in the United States, which amounts to between 37 to 47 percent of all households. With dog ownership being so prevalent in the United States, it is not hard to imagine that these animals may also become involved in situations concerning people—namely interactions with police.

Riley v. California: The Pandora’s Box in A Digital Age Restructuring of Fourth Amendment Law

This summer, the United States Supreme Court made a huge leap in upholding the people’s right to privacy under the Fourth Amendment in the unanimous decision, Riley v. California.  Riley created a bright-line rule, curbing police discretion, that cell phones (not only smart phones) are not reasonably subject to a search incident to arrest unless an extenuating circumstance is present. 

Rodriguez v. United States: De Minimis Car Searches

Rodriguez v. United States

Docket Number: 13-9972

Argument Heard: TBD

ISSUE:
The Supreme Court has previously held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment.[1]  This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

No Such Thing as Behind Closed Doors: How Technology Has Outdated the Third-Party Doctrine

Most people would agree with the assertion that if you want to keep something private, then you just shouldn’t tell anyone! And that is just the rule that the Supreme Court developed in Katz v. United States when it contemplated matters that are not considered “private,” in regards to the Fourth Amendment. The Court stated that “what a person knowingly exposes to the public . . . . is not a subject of Fourth Amendment protection.” A little over a decade later, the Court expanded this notion in Smith v. Maryland to create the third-party doctrine, which states that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The idea behind the doctrine is that citizens should take steps to protect their privacy or to preserve their secrets; and if a citizen puts their personal information out to another party (usually a business with the third-party doctrine), then that information is obviously not private—and more importantly, it is not protected under the Fourth Amendment from government intrusion.

Privacy in a Tech World: Cellphone Data Requires a Warrant

#164922396 / gettyimages.com

After Apple Inc. announced the release of the iPhone 6 models for September 19^th, the tech community roared in excitement about all of the new capabilities, and what a new smart phone could do for them.  With more than 1.2 million apps available, it’s pretty much a guarantee that “there’s an app for that.”  Increasingly, many people use apps for issues they may wish to keep private, such as sending confidential emails, or more controversially, for the “sexting” phenomenon.

“High Crime Area” Undefined

Map of US Murder Rate in 1965

The phrase “high-crime area” is often thrown around, but what does it mean exactly?  The term "high-crime area" was first used by the Supreme Court in Adams v. Williams, where the Court stated: "While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety." In a series of Fourth Amendment cases from Adams v. Williams to Illinois v. Wardlow, the Supreme Court of the United States has considered the character of the neighborhood to be one factor in finding "reasonable suspicion" to stop someone. Specifically, in Wardlow, the Court found that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." 

In Brown v. Texas, the Supreme Court was asked to decide whether being confronted in a “high-crime area” alone was enough to justify a Terry stop.  The officers in Brown could only say that the appellant "looked suspicious," but could not articulate why. The Court eliminated this factor from consideration.  The only other factor the officer offered was that the appellant was in a high-crime area. The Court held that, standing alone, being in a high-crime area was "not a basis for concluding that appellant himself was engaged in criminal conduct," because the "appellant's activity was no different from the activity of other pedestrians in that neighborhood."  While stating that being in a high-crime area is insufficient to show reasonable suspicion, the Court did not exclude the factor from consideration, so long as the officer could point to other facts that differentiated the suspect from the community at large.

Although the Supreme Court does not allow the character of the neighborhood to be the sole justification for a stop based on reasonable suspicion, it has narrowed the totality of circumstances needed to two factors: "high-crime area" and unprovoked flight from police. 

After the Supreme Court's decision in Wardlow, courts could consider whether an area is a “high-crime area” in a Fourth Amendment reasonable suspicion determination. The problem is that the Supreme Court has never provided a definition and lower court decisions offer little guidance.

In Washington, D. C., “several arrests" has been deemed sufficient to title a location as a “high-crime area.” This criterion was observed in United States v. Lovelace. where officers testifying to making several prior narcotics arrests coupled with residents' complaints of narcotics dealing was sufficient to characterize that area as a "high-crime area." In James v. United States, a District of Columbia Metropolitan Police Officer pulled over a car that had just swerved near the officer's cruiser.  The stop occurred on a street described by the officer as "high crime, violent crime, it's high narcotics, it's high everything - burglaries, robberies."  When the officer approached the car, the driver looked at the officer and "kind of raised his body up a little bit, and then bent all the way down and then he sat back up."  This led the officer to believe that the driver was "pulling a gun from his waist and putting it under the seat."  A search incident to the stop resulted in the recovery of a gun, and James was charged with a series of gun offenses.  James moved to suppress the gun and lost.  On appeal, after noting that the "high-crime area" factor is "certainly relevant," the District of Columbia Court of Appeals stated “that is especially true in this case, given that the area where appellant was stopped was not just a ‘high crime' area, but an area known specifically for the type of activity - i.e., gun possession - of which [the officer] suspected appellant." Based on the near collision and the “high-crime area,” the District of Columbia Court of Appeals affirmed the trial court’s decision.

Mayes v. United States, provides yet another example of the pitfalls of imprecision and unreliability surrounding the term “high-crime area.” In Mayes, the officers approached a stopped car in front of a "notorious crack house" which they believed matched the description of a car used in a shooting the previous night.   At the motions hearing, the government offered evidence that the block on which the stop occurred was in a "high-crime area," generally, and that the house in which the defendants were parked in front of was, in particular, a "notorious crack house."  Defense council rebuked the government’s assertion and introduced testimony that showed that "the building was in fact a high-rent luxury apartment house with its own security fence," which housed mostly "professional people." Although the trial court rejected the officer's claim that the house was a "notorious crack house," it still "credited the testimony that the general area was a high crime area.  Further, the appellate court held that "the trial court was required, and so are we, to include in the [reasonable suspicion] calculus … the character of the neighborhood."

Mayes, Lovelace, and James highlight the difficulties that can arise when areas in our nation’s capital are described as high-crime and not supported by documented and quantifiable evidence. Moving forward practitioners should seek to investigate the foundation for such assertions. Statistics and trend analysis should be used in conjunction with officer testimony to support the designation of an area as “high-crime.”

Stephane L. Plantin

Staffer, Criminal Law Practitioner

Photo by Delphi234 via Wikimedia Commons

The Soldier Department

In November 2012, the local police department for the small town of Keene, New Hampshire announced the acquisition of a ballistic-engineered armored response counter attack truck, more affectionately called a “BearCat,” from the Department of Homeland Security (DHS).  Meanwhile, local police in the small town of Cary, North Carolina taught a training course entitled “Warrior Mindset” to its incoming class of officers. In February 2013, a New Haven Police Department Special Weapons and Tactics (SWAT) team used a battering ram through a single family’s front door, shooting a flash-bang grenade to temporarily blind the family while it executed a search warrant for drugs.  No drugs were found.

From Click to Clank: Social Media and Criminal Investigations

The gift and curse of technology advancement has made its way into the criminal justice system. In a generation where almost nothing is left private, social media sites have created a new frontier of evidence for criminal investigations.  Justin P. Murphy and Adrian Fontecilla of Crowell & Moring’s Washington, D.C. office took an in-depth look at social media evidence in criminal proceedings.  A Bloomberg Law report that summarizes their larger study and law review article reports some remarkable statistics:  “Social media use in the United States alone has increased by 356 percent since 2006.  Currently, 52 percent of Americans have at least one social media profile, more than one billion people use Facebook actively each month and Twitter has over 140 million active users posting 340 million Tweets a day.”

               

No Knock, No Problem?

The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures.[1]  Traditionally, the common law doctrine governing the reasonableness of police searches of private homes required officers to knock and announce their presence, giving the owner opportunity to answer.  This rule was adopted to limit unnecessary destruction of forced entry into private homes.  In 1970, Congress passed the Comprehensive Drug Abuse, Prevention, and Control Act, which authorized the use of no-knock warrants.[2]  After seeing the dangers of this method, Congress repealed the law in 1974.[3]  The Supreme Court, however, has ruled that in some circumstances, knocks are not necessary.  No-knock searches can be performed with a warrant authorizing entry without announcement.  If a warrant does not authorize entry without announcement, then a court must consider that when analyzing the reasonableness of a search.

There is a long line of case history, starting with Wilson v. Arkansas, in which the Supreme Court has held “no-knock” searches to be reasonable.  The rationale for these cases is based on the Court’s belief that when there is a threat of physical violence, or a threat of evidence destruction, the police need the element of surprise.  The Court acknowledges that the standard for showing a knock is not necessary is incredibly low; police must only show a reasonable suspicion that one of the grounds for a no-knock search exists.

Since the 1980’s, the annual number of no-knock searches has skyrocketed.  Up from an average of 2,000 to 3,000 searches per year in the mid-1980’s, there are now between 70,000 to 80,000 unannounced home raids annually.  These no-knock procedures have been increasingly scrutinized  by the media and public because of the unpleasant and sometimes fatal outcomes the searches bring.  The idea of a surprise search has been debated for decades.  Critics are revitalizing the fight against these types of searches, arguing that expansive self-defense laws, such as “Make My Day” (Colorado) or “Stand Your Ground” (Florida) laws give home owners seconds to make life altering decisions.

In 1999, Denver police conducted a no-knock search on the home of Ismael Mena, who was killed during the search.  The shooting was ultimately ruled justified, because Mena was holding a gun when shot, but the investigation into his death revealed police were searching the wrong residence.  ACLU of Colorado Legal Director Mark Silverstein reported the warrant authorizing the unannounced entry  suffered from major deficiencies, and lacked requisite information establishing a need for the unannounced search.  In reviewing this case, Silverstein noted that no-knock searches can be potentially more dangerous to police than announced entries.  There are forty-eight states that have some form of a “Castle Doctrine,”permitting the use of force to protect one’s home.  The potential danger to police officers are home owners who think their home is being invaded when the door is broken down in the middle of the night, without any type of knock or announcement.

The story of Todd Bair, from Ogden, Utah, illustrates how the no-knock search poses a danger to both police and homeowners.  Police burst into Bair’s unlit home under the cover of night.  Bair, believing his home was being invaded by burglars, grabbed a golf club for protection.  The officers, seeing Bair’s club and misidentifying it as a sword, fired three shots and killed Bair.  If Bair had actually been armed with a dangerous weapon, this incident could have been even more tragic.

The Supreme Court recognizes the low burden for no-knock searches, because the Court indicates that by granting this discretion to the police, the police are afforded greater protection from physical danger and from the loss of evidence.  Critics of this policy refer to the stories of Mena and Bair as reasons why the procedure actually poses a danger to police.  As a result of allowing the police to enter a premise without alerting the homeowner of what is happening, the police may cause a homeowner to feel like they are the victim of a home invasion, sparking a range of responses from the homeowner.

If the ultimate question rests on the reasonableness of the search, should consideration of the homeowner be included?  When a door is broken down in the middle of the night, is it reasonable because the police say so?  Although the police action resulting in the death of Menav and Bair was ruled justified, would the same be said if the results were opposite?  There is a long line of Supreme Court precedent declaring unannounced, no-knock searches Constitutional, and that does not seem likely to change, even though many believe it is unreasonable to have a search conducted similar to a home invasion.

Amber Wetzel

Senior Staffer, Criminal Law Practitioner

For an interesting summarization and facts of no-knock policies, click here.

By Photo by US Army (http://www.cid.army.mil/) [Public domain], via Wikimedia Commons.

---

[1]U.S. Const. amend. IV.

[2] Robert J. Driscoll, Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. & Soc. Probs. 1, 1 (1995).

[3]Id. at 2.