In a case testing the limits of warrantless entry, liberal and conservative justices of the U.S. Supreme Court on Wednesday posed questions to counsel that kept returning to the durable guidance of the Fourth Amendment.
In Lange v. California, a California Highway Patrol officer had observed Arthur Gregory Lange commit a minor traffic offense. The officer flashed his lights at the entrance to Lange’s driveway while Lange, possibly unaware of the officer, entered his garage. The officer then entered Lange’s garage without a warrant.
The core issue the court considered: Is a police officer’s pursuit of a person suspected of a misdemeanor enough of an “exigent circumstance” to justify a warrantless entry?
Several Supreme Court justices seemed concerned that a new, looser standard would deviate from the Fourth Amendment. They were skeptical that a new standard, perhaps one separating felonies from misdemeanors, would even work as a national standard, given that states define criminal categories so differently.
“Why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as [an] original matter? Why would we adopt a rule we know is wrong as an original matter? … I don’t know why we would adopt a rule that’s less protective than the original meaning.”
Considerations of rabbits and driving violations may make the issue seem arcane. Adam Forester Griffin and Josh Windham in a Federalist blog see the core issue:
“The question of when and how police may enter our homes strikes at the core of American liberty. It was on the Founding Fathers’ minds when they rallied a nation to revolution. It’s on many of our minds today following the tragic shooting of Breonna Taylor in her Louisville apartment. And it’s a question the Supreme Court is poised to address yet again this term in an important Fourth Amendment case called Lange v. California.”
Our policy advisor, Bob Goodlatte, makes an important case on why Senators in both parties should use their hearing for Attorney General nominee Merrick Garland as an opportunity to extract promises of transparency about the state of government surveillance.
The Project for Privacy and Surveillance Accountability (PPSA) filed a Freedom of Information Act request today asking the Department of Justice to release records on its use of cell site simulator technology.
These devices give government the ability to conduct sweeping dragnets of the metadata, location, text messages and more in the cell phones of people within a geofenced area. Commonly called stingrays (after the Harris Corp. brand name StingRay), and dirtboxes (or DRT boxes used on helicopters or drones for aerial surveillance), these devices can sweep up sensitive and personal information, not just from a suspect, but from hundreds or thousands of people in the vicinity.
The use of such technologies is supposed to be governed by a September, 2015, policy document prescribing restrictions on the use of stingrays and requiring an order under the pen register statute and a probable cause warrant before they can be used. These requirements, however, can be overlooked in a few “exigent” circumstances, such as a threat to life and limb, or hot pursuit of a fugitive, kidnapping, and the like.
“The 2015 DOJ memo spells out some useful standards for resorting to the use of a stingray,” said Gene Schaerr, PPSA general counsel. However, “in 2018, the ACLU documented at least 14 federal agencies that use stingrays, as well as 75 state agencies. Since then, there has been little insight into how federal and state agencies are actually deploying this increasingly affordable and ubiquitous technology.”
Accordingly, Schaerr concluded, “It is well past the time to shed light on how widespread the use of these devices is, and to determine if standards or governance has changed, or needs to change.”
PPSA’s request seeks the following records, among others:
“This last request is particularly important,” Schaerr said. “There have been many reports of NDAs keeping state and local law enforcement from discussing the use of this technology even in the courtroom and in legislative testimony.
“As a civil liberties community, we need to get our arms around the use of a technology that so easily breaches the Fourth Amendment,” Schaerr said. “This is PPSA’s opening effort, one that will culminate in a closer and fuller examination of how this technology is being used on the ground and in the air by states and localities as well as the federal government.”
Countries around the world use apps for Covid 19 contact tracing. In most countries, the government swears it will never use our sensitive location and meeting data for any purpose except for tracing the spread of the virus.
In Singapore, 78 percent of that city-state’s residents – or 4.2 million people – used TraceTogether to allow the government to notify them if they’ve been in contact with someone who tested positive for the virus. The government pledged to use this data for no other purpose but public health.
Now it’s come to light that Singapore secretly allowed its police to access that data in a murder investigation.
“Singapore is saying to other governments, with a wink and a nod, that we’ve done it and you can do it too,” Phil Robertson, deputy director in Asia for Human rights watch, told Bloomberg News. “Many countries look to Singapore as a success story, so they think whatever Singaporeans do must be good, and that’s a problem.”
For many governments, and perhaps our own federal and state governments, all that data just sitting there is a temptation. Consider our recent report on CDC’s order to the states to share personal information on people receiving coronavirus vaccines.
What does this mean for U.S. citizens and policymakers? The risk that governments will misuse such private information highlights the need to protect that information through legislation, without leaving its protection to the whims of individual agencies and officers.
Imagine if the police could search your home – and the contents of your iPhone and other digital devices – by asserting it was for your own good, then charge you with a crime if their warrantless snooping revealed something illegal.
A case currently before the Supreme Court, Caniglia v. Strom, risks making that terrifying hypothetical situation reality. The case asks whether the police may enter a home without a warrant in a “community-caretaking capacity.”
This exception stems from the recognition that police sometimes perform “community-caretaking” functions beyond law enforcement or keeping the peace. The Supreme Court has authorized a narrow subset of warrantless vehicle searches for police fulfilling a community-caretaking role. But the Court has never previously extended that exception to the home. The Project for Privacy and Surveillance Accountability (PPSA) Friday joined with Restore the Fourth to file an amicus brief arguing that such a loophole in the Fourth Amendment “would have been nonsensical to the Framers” and that “permitting entry into the home for such functions would have been even more outlandish.”
“If the government can enter your home without a warrant in a community-caretaking capacity,” said Gene Schaerr, PPSA general counsel, “the government will argue that it may treat electronic sources of information in just the same way. After all, the home has historically been the space most protected from government intrusion.”
Our brief argued that non-investigative searches performed in the name of community caretaking could lead to criminal prosecutions:
“Imagine, for example, that the police believe a person posed a risk to himself or others. Under a broadened view of the community-caretaking exception, the police would be free to conduct a warrantless search of the person’s smartphone to evaluate the risk. The police would then be free to browse through the person’s search history, text messages, call logs, and photos—all in the name of caretaking.”
If any illegal activity was detected, “seemingly benevolent searches would then become an engine for criminal prosecutions even though no warrant was ever obtained, and no probable cause ever existed.”
“Such a precedent could pose a monumental threat to privacy and the foundations of the Fourth Amendment,” Schaerr said. “If this principle were logically extended to our digital devices, which enjoy fewer protections than the home, the most sensitive aspects of a person’s life would be routinely accessible to the government whenever it seeks to perform a community-caretaking function. Big Brother would be watching you for your own good!”
PPSA will continue to monitor the government’s attempts to circumvent the Fourth Amendment’s warrant requirement by expanding exceptions to it.
PPSA is a nonprofit, nonpartisan organization concerned about a range of privacy and surveillance issues—from the surveillance of American citizens under the guise of foreign-intelligence gathering, to the monitoring of domestic activities under the guise of law enforcement. Restore the Fourth is a national, non-partisan civil liberties organization dedicated to the robust enforcement of the Fourth Amendment.
The Fourth Amendment forbids warrantless surveillance of Americans. As we’ve reported before, government agencies are getting around this pesky constitutional requirement by simply purchasing Americans’ private information from data brokers.
In today’s nomination hearing for the Biden Administration’s nominee for Director of National Intelligence, Sen. Ron Wyden (D-OR) asked nominee Avril Haines if she would agree to inform the American people about this growing practice.
“I would seek to try to publicize essentially a framework that helps people understand the circumstances under which we do that, and the legal basis under that we do that under … so people have an understanding of the guidelines under which the intelligence community operates.”
“PPSA will keep a close eye on the DNI to see if this promised transparency is forthcoming,” said PPSA general counsel Gene Schaerr. “If it is not, expect to see more FOIA filings citing this pledge.”
In the waning days of the Trump Administration, the leadership of U.S. Customs and Border Protection seems intent on going ahead with a plan to massively increase the use of facial recognition technology at airports and other ports of entry. Under the proposed rule change, nearly all aliens entering or exiting the country would have their “faceprint” collected and stored in a government database for up to 75 years.
This database would then be made available for use by federal and state law enforcement for comparison purposes, and potentially even for use by foreign governments. In calling these plans a “civil liberties disaster in the making,” the ACLU points out consent issues with the collection of “faceprints” and describes the potential risk for “a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge.”
In short, it would be another step toward making us more like the People’s Republic of China.
This is an issue that PPSA is tracking closely and we will continue to do so as the transition to the incoming Biden Administration unfolds.
Passage of the latest coronavirus relief measure gave Americans something to celebrate in the darkest hours of the pandemic. Surprisingly, the Intelligence Authorization Act (IAA) for 2021—which was included in the coronavirus law—also gave privacy advocates something to celebrate.
Early versions of this year’s IAA left much to be desired. PPSA, along with our allied pro-civil liberties organizations, stood against the worst of the overreaches found in early versions of the bill. With the support of our followers and strong coalition building, PPSA played a role in striking some of the most harmful aspects of the original version of the IAA.
First, the recently passed version of the IAA dropped the requirement for the creation of a Social Media Data and Threat Analysis Center.
This troubling idea, which contained no commensurate requirements for internal guardrails or guidelines, could have easily turned into the Political Threat Analysis Center. PPSA recognized this danger and joined with a number of like-minded organizations such as Demand Progress, FreedomWorks and the ACLU in writing a bipartisan letter to House leadership that played a meaningful role in the removal of this provision.
Second, the advocacy of our coalition might have also played a role in the dropping of an FBI informant hotline aimed at purported espionage activity by Asian-Americans. While the threat of spies sent or recruited by the People’s Republic of China is very real, PPSA is firm in its belief that a Stasi-style informant system risks doing more harm to civil liberties than good. Instead, PPSA supports the included requirement that the impacts of surveillance on the civil liberties of Chinese-Americans be studied annually.
Third, we won a major defensive victory when the final version of the IAA dropped language stating that it is “the sense of Congress” that intelligence agencies are authorized to conduct any needed surveillance not specifically precluded by law.
Such a provision would have essentially enshrined the worst interpretations of Executive Order 12333. While PPSA is thankful for the removal of this language, this is more of a Dunkirk than a D-Day. We must remain vigilant against those who view EO 12333 as a license for unfettered executive branch spying.
Overall, the state of surveillance in 2021 should give privacy advocates reason to feel optimistic. Meaningful change has been accomplished while harmful provisions have been prevented.
In the wake of the disgraceful attack on the U.S. Capitol, we point out that existing investigative tools are allowing law enforcement to arrest the rioters and ring leaders. We should be skeptical of any attempt to use that assault, as heinous as it was, as the basis for yet another anti-terrorism law that subverts the U.S. Constitution.
We’ve seen how effectively the federal government has bypassed that pesky Fourth Amendment requirement for a probable cause warrant by engaging in mass collection of call record data when nobody was looking … or now by simply buying our digital data from data brokers. A similar issue, really a national privacy crisis, is taking place at the local level with something called a “stingray.”
This is slang for a cell-site simulator, which tricks your cellphone into responding to it as if it were a cell tower. It is kind of the digital equivalent of an undercover agent posing as a friend who then snoops around on your phone when your back is turned. Using stingrays, local authorities can and do access data on phones in an area that can be as wide as two miles, sucking up data on everyone, not just the intended target. Authorities will tout it as a way to preempt terrorists and violent criminals, but it is often used by police in routine investigations of nonviolent crimes. In many jurisdictions, what would stop unscrupulous investigators from using stingrays to snoop on political opponents?
California is privacy-challenged in many ways, especially in its attitude toward the privacy of donors to causes that can be targeted for harassment and abuse. When it comes to stingrays, however, the Golden State has taken some reasonable steps. A 2015 California law requires local governments to hold public hearings to include some democratic oversight of how this technology is used in a community. Every state should have a similar law. Such hearings would provide one important forum for addressing the significant constitutional concerns from indiscriminate surveillance and data collection.
In defiance of this requirement, the city of Vallejo authorized its police chief to develop the department’s privacy and usage policy without a public hearing. The lack of public involvement perhaps accounts for Vallejo’s more free-wheeling invasion of privacy as compared to other California jurisdictions: Vallejo’s usage rate for its cell site simulator is approximately 60 percent higher than the usage of the city of San Jose’s police department, despite the fact that San Jose’s population is nine times larger than that of Vallejo.
Late last year, a California state court issued a final decision interpreting the state law in a writ of mandate requiring compliance with the public approval process for Vallejo’s stingrays. Superior Court Judge Bradley Nelson ruled:
“Because any policy’s personal purpose is to safeguard, within acceptable limitations, the privacy and civil liberties of the members of the public whose cellular communications are intercepted, public comment on any proposed policy before it is adopted also has a constitutional dimension.”
One scholar who has followed this closely is Marilyn Fidler, who reports that “California law is the only state I encountered in my research that mandates a comprehensive, public governance process at the local level, which I have argued is particularly important to regulating police surveillance.”
No doubt public hearings are necessary for transparency and democratic oversight. But this should not be a substitute for clear information on the scope and uses of this technology, as well as on what rules are in place to ensure use of stingrays are used within constitutional bounds. This is especially needed given that the ACLU reports the use of stingrays by at least 14 federal agencies.