Tenth Circuit on Right-to-Record in Irizarry v. Yehia
The Fourth Amendment grants us protection against intrusive surveillance. Conversely, the First Amendment grants us the right to observe public actions by public authorities. The emergence of the cellphone demonstrates the integral nature of these two sets of rights. Courts are increasingly interpreting First and Fourth Amendments regarding cellphones to the advantage of citizens over government, a victory for civil liberties in law if not always in practice.
The U.S. Supreme Court in Riley v. California (2014) held that the police violate the Fourth Amendment when they try to gain warrantless access to the voluminous personal information inside our cellphones. On the other hand, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeal have upheld the right to record police officers going about their public duty, a right recognized as critical to the protections of the First Amendment.
Last summer, PPSA reported on the continued holdout stance by the U.S. Tenth Circuit Court of Appeals against the right to film police officers. Despite the weight of six other Courts of Appeal, the Tenth Circuit continued to insist that there was no “clearly established” right. In a recent ruling, however, the Tenth Circuit came close to fully joining its judicial peers by dropping its Draconian opposition to the right to record in the case of a self-identified journalist and blogger. On July 11th, the court ruled in Irizarry v. Yehia in favor of a right to record.
The incident in question occurred early in the morning of May 26, 2019, when blogger Abade Irizarry began filming a DUI traffic stop in Colorado. According to the ruling of the court, “Officer Ahmed Yehia arrived on the scene and stood in front of Mr. Irizarry, obstructing his filming of the stop. When Mr. Irizarry and a fellow journalist objected, Officer Yehia shined a flashlight into Mr. Irizarry's camera and then drove his police cruiser at the two journalists.”
PPSA welcomes the court’s adjustment on the right to record police activity, fundamental to the First Amendment and to Americans’ ability to protect themselves in court against potential police misconduct. The Tenth Circuit specifically cited the rulings of other Courts of Appeal, indicating that the right to record may be gaining traction, especially amid the public backlash against police misconduct in the wake of the killing of George Floyd.
PPSA urges courts to interpret the First and Fourth Amendments in ways that reinforce these rights. They are not in competition. There is – and should be –
a lopsidedness in the law. Citizens are free to film the police on official duty. But the police must obtain a warrant to search our cellphones.
In a free society that holds authority accountable, that is as it should be.
The U.S. Supreme Court held in Riley v. California in 2014 that cellphones are not like other objects. The texts, emails, instant messages, online searches, and apps inside a phone can reveal just about everything about us, what the Court called “the privacies of life.”
The Court ruled that the police need to obtain a probable cause warrant to investigate a suspect’s cellphone. But what are the rules if the cellphone is abandoned or thrown away? Courts are currently applying the law governing ordinary abandoned objects to cellphones.
This question arises from the case of a Virginia man, Antonio Daren Futrell, who realized that he had left his cellphone inside a restaurant. He tried to retrieve it, but it was past closing time, and the employees wouldn’t let him back in. There was an altercation and, long story short, Futrell was later convicted of firing a gun at a security guard before fleeing the scene. When the police found Futrell’s phone inside the restaurant – which was now considered abandoned after Futrell fled – they were able to access it because Futrell had not protected it with a passcode.
Now lawyers for Futrell have filed a petition asking the U.S. Supreme Court to clarify the question of whether a police officer who finds a discarded phone has free access to anything inside it.
“If you throw your phone away or discard it or trade it in, police can do whatever they want,” said Brandon Boxler, one of Futrell’s attorneys, told The Daily Press of Newport News. “They can access your emails, your bank records, your phone calls, text messages, photos – everything is fair game that’s on the phone.”
Futrell’s petition challenges Hester v. United States, a 1924 case in which the Supreme Court allowed the warrantless search of a moonshine bottle a suspect threw away. The Court later applied that doctrine to objects as disparate as a pencil and drug paraphernalia thrown in the trash.
“Cellphones are different,” Boxler wrote in the Daily Press in 2021. “They have massive storage capabilities. A search of a cellphone involves a much deeper invasion of privacy. The depth and breadth of personal and private information they contain was unimaginable in 1924.
“We use cellphones as cameras, personal assistants, navigation devices, web browsers, and everything in between,” Boxler wrote. “And with advances in cloud computing, cellphones can access years – if not decades – of bank records, medical records, emails, location data, and other sensitive information. Can anyone really ‘abandon’ this information, even if they discard a cellphone?”
While the chances the Supreme Court will take up this petition are remote, Futrell’s attorneys were heartened last Thursday when the Court asked the Virginia Attorney General’s office to respond to the petition.
Last week, the media was astir that videos from Amazon’s Ring doorbell cameras were shared with police without their owners’ permission. The company insists that it did so in eleven extreme cases this year in response to situations in which life and limb endangered.
This may fly in the face of company policy stating that police can’t view recordings unless the footage is posted publicly or intentionally shared. But the low number of such incidents, revealed in a letter by an Amazon VP of public policy to Sen. Edward Markey (D-MA), suggests the company is being upfront. To be fair, the media would be ablaze if Amazon had stood by and allowed someone to be beaten to death.
The biggest issue with Amazon Ring is not that it ignores the need to seek the permission of its customers to share videos with police. The bigger problem is that this network of more than three million online cameras across the United States encourages its customers to voluntarily provide for the surveillance of entire neighborhoods. One message from the company to its customers reads: “If you would like to take direct action to make your neighborhood safer, this is a great opportunity.”
The company has agreements with 2,161 law enforcement agencies to access an app called Neighbors, a social media platform in which owners can post Ring camera footage and leave comments. The transformation of home security into a venue for social media encourages users to post videos online – all of it available to law enforcement “partners.”
Even more worrying, Amazon’s agreements with law enforcement allow officers to solicit Ring doorbell footage from customers for entire neighborhoods. Such video and audio surveillance may be fine for the customer, but what about passersby? And while the number of incidents in which footage was shared without permission currently remains low, what about the capacity for future abuse by Amazon and law enforcement?
It is concerning that all it would take for Ring cameras to become a form of constant mass surveillance would be a change of one company’s policy.
The Project for Privacy and Surveillance Accountability today filed a Freedom of Information Act (FOIA) lawsuit against the Office of the Director of National Intelligence (ODNI) over the refusal of the government to turn over records concerning U.S. intelligence community purchases of the private digital data of American citizens.
The government’s stonewalling continues well past its failure to meet any of the deadlines required by the FOIA statute. It also flies in the face of a pledge made by Director of National Intelligence Avril Haines (1:17:05 mark) in her Senate confirmation hearings on Jan. 19, 2021. When Sen. Ron Wyden, (D-OR) asked about informing the American people about purchases of their data, Haines responded:
“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 that we do that under.”
Haines further promised to provide transparency “so people have an understanding of the guidelines under which the intelligence community operates.”
In response, PPSA requested “all agency records created, altered, sent, or received in preparation for any public disclosure, as contemplated by Director Haines,” including:
The government acknowledged receiving PPSA’s initial FOIA request on June 2, 2021. PPSA inquired about the lack of a substantive response more than one year later. On June 23, 2022, ODNI responded: “we cannot speculat[e] on a specific response date.”
More than thirty business days later, after the ODNI failed to indicate whether it will fully comply with the FOIA request, PPSA decided to file suit.
“This is a golden opportunity for Director Haines to demonstrate that the intelligence community will live up to her promise to provide at least some transparency,” said Gene Schaerr, PPSA general counsel. “As Avril Haines herself stated, the American people deserve to know the circumstances in which the intelligence community purchases our personal data and the legal basis for doing so.
“Director Haines promises to ‘publicize’ that legal basis. I hope she does, instead of allowing her office to continue to stonewall.”
PPSA'S Goodlatte Testifies at House Judiciary Committee's Hearing On Fourth Amendment Is Not For Sale Act
Bob Goodlatte, PPSA Senior Policy Advisor, returns to the House Judiciary Committee, which he once chaired, to explain how the government sidesteps the constitutional requirement for a probable cause warrant by simply buying our personal digital information from private data brokers. He also discusses the need to pass The Fourth Amendment Is Not for Sale Act. You can read his testimony or listen to him testify, beginning at the 14:26 mark.
ACLU FOIA Lawsuit: Department of Homeland Security Collects 15 Billion Cellphone Locations Every Day
The American Civil Liberties Union performed an invaluable service for the American people today by releasing records from Department of Homeland Security agencies that demonstrate the sweep of the government’s routine violation of the Fourth Amendment by purchasing Americans’ personal data from data brokers.
The ACLU’s Freedom of Information Act lawsuit against DHS agencies includes Customs and Border Protection, Immigration and Customs Enforcement, the U.S. Secret Service, and the U.S. Coast Guard. This lawsuit is ongoing, but these first disclosures are eyepopping.
The ACLU lawsuit reveals:
“ACLU’s findings should concern every American with a cellphone,” said Bob Goodlatte, former Chair of the House Judiciary Committee and now Senior Policy Advisor to PPSA. “ACLU’s determined effort to expose the scale of government intrusion into our privacy is a monumental public service. With the House and Senate now holding hearings into these practices, Congress has every reason to require warrants to intrude into our digital lives by passing the Fourth Amendment Is Not for Sale Act.”
Bob Goodlatte will testify on the government’s practice of buying Americans’ personal data tomorrow before the House Judiciary Committee.
The U.S. House of Representatives passed a major transparency measure by voice vote tonight. This amendment to the National Defense Authorization Act, offered by Rep. Sara Jacobs (D-CA) and Rep. Warren Davidson (R-OH), will require the Department of Defense to report the number of times it purchases the internet browsing and phone location data of Americans from private data brokers. The report will also include a general accounting of how the government uses this information.
PPSA commends Reps. Jacobs and Davidson on their steady leadership and articulate advocacy. Tonight’s success should provide momentum for the passage of the Fourth Amendment Is Not for Sale Act.
Last February, PPSA reported that NSO Group, the Israeli cybersecurity company that produced the malware Pegasus, had been placed on a U.S. Commerce Department blacklist. Pegasus is to malicious spyware what a supercomputer is to a calculator. It penetrates smartphones remotely, without requiring any security mistakes or phishing attempts. Once inside a smartphone, Pegasus extracts all its information. Then it reconfigures the smartphone into a tracking and recording device.
The U.S. blacklist heavily restricts the ability of American companies to do business with NSO Group. Despite the ban, the FBI purchased Pegasus in 2019 and stores it under lock and key. It has long been an open question whether a U.S. administration would succumb to the temptation to use Pegasus for domestic surveillance purposes.
Now, we have some idea of the degree of U.S. government interest in Pegasus.
It has been revealed that L3Harris, an American military contractor, had been in recent talks to purchase NSO Group. It is hard to imagine that occurring without the secret blessing of at least some U.S. intelligence officials. People familiar with the negotiations said the technology has been of interest to the FBI and the CIA for several years. The negotiations continued well after the Commerce Department’s blacklist was issued and were only discovered in June when the proposal was leaked to the press. Since then, the Biden White House has signaled outrage over the potential sale and vowed to challenge any deal. Although L3Harris has since withdrawn from negotiations, the role of U.S. intelligence officials raises several questions.
Unless or until there is another leak or an enterprising journalist digs deeper, we can only ask these questions.
New amicus briefs supporting the petition for certiorari filed by PPSA in Torcivia v. Suffolk County urge the U.S. Supreme Court to hear the case. The Torcivia case asks whether the police can, citing a special need, gain warrantless access to a home. One of the briefs is a clear statement of principle, the other a fascinating history of the ancient, colonial, and early U.S. law upholding the inviolability of the home.
The case involves a New York State man, Wayne Torcivia, who was sent for a psychiatric evaluation after a domestic disturbance call. Torcivia had no history of mental illness, violence, or suicide attempts, but was nevertheless sent to a hospital for a psychological evaluation. When he was cleared to return home by psychiatrists, Torcivia had to negotiate with police to give them warrantless access to his gun safe.
The Second Circuit Court of Appeals upheld the warrantless entry under a “special needs exception.”
The amicus brief from the New Civil Liberties Alliance neatly summarizes the essence of this case. The NCLA brief notes that the Second Circuit distinguished the “special needs exception” from the similar “community caretaker” warrant exception in Caniglia v. Strom. Late last term, the Supreme Court in a 9-0 decision struck down that justification. NCLA writes:
“As in Caniglia, officers have made home entries and seizures when there was time to obtain the review, and authorization, of a magistrate.”
NCLA noted there was no “exigency” or emergency circumstances. Torcivia was in the hospital and his guns were locked in his safe, posing no immediate danger to himself or to others. NCLA concludes:
“The ‘special needs’ concept is unnecessary and the source of confusion. The rule consistent with the Fourth Amendment’s right of the people to be secure in their homes is straightforward and clear: absent exigency or homeowner consent, the executive may not enter a home and seize property without a warrant—which ensures authorization from a neutral and detached magistrate.”
Another brief, from the Firearms Policy Coalition and FPC Action Foundation, offers a review of the history of the concept of the sanctity of the home, starting with the Roman lawyer and political philosopher Marcus Tullius Cicero. Cicero asked: “What is more sacred, what more inviolably hedged about by every kind of sanctity, than the home of every individual citizen?”
FPC traces the Castle Doctrine to a case in 1499, the first decision to assert that a man’s home is his castle. The brief goes on to trace colonial resistance – sometimes violent – to the intrusions of sheriffs, constables, and British tariff officials. And it documents the intense debate by the framers of the Constitution of the need for a Bill of Rights, including what we now call the Fourth Amendment.
Together, the two briefs combine to make a perfect argument. One upholds the immediate and logical conclusion that the Second Circuit’s decision flies directly in the face of Caniglia, while the other details the philosophical underpinnings of the Fourth Amendment.
"Only Congress and the American people can decide whether we will remain a free society or succumb to technological totalitarianism."
A must read opinion piece in Real Clear World by our President, Erik Jaffe.