See SCOTUSBlog and the New York Times for inital coverage of the US Supreme Court's decision allowing strip searches of anyone, no matter what their alleged offense, in American jails.
Though Grits hopes to be wrong, I wouldn't be surprised to see Texas county jails quickly changing their policies to take advantage of this new authority unless the Legislature steps in next year to regulate the practice. Just a couple of years ago, Bexar County paid out a $4.5 million settlement over its strip searching policy at the jail and changed their procedures so that "Only detainees charged with felony crimes or those suspected of having contraband will continue to be searched," a local TV station reported at the time.
The ruling overturns a 5th Circuit ruling previously governing jails in Texas which held that jails couldn't strip search inmates arrested for petty offenses without being able to articulate "individualized reasonable suspicion." This new ruling overturns that precedent and clears the way for Texas jails to begin strip searching every arrestee if local Sheriffs choose to do so.
I've not heard of the 5th Circuit restrictions on strip searches in jails (which have been in place since Kelly v. Foti in 1996) posing any particular problems, and IMO the Legislature should reintroduce those same restrictions when they meet in 2013. When the courts refuse to protect liberty, it's up to the other branches of government to step in.
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Senin, 02 April 2012
What impact of Texas legislative turnover on criminal justice reform?
The Austin Statesman's Tim Eaton has a political analysis of the likely makeup of the Texas House next year, projecting that Republicans will lose seats in the lower chamber but still hold onto 60% or more and ideologically are likely to become more conservative. Further, between unusually large turnover in 2010 and a large number of retirements, there will be more relatively inexperienced legislators in the Texas House, D and R, than any time probably since the aftermath of the Sharpstown bank scandal. Reports Eaton:
There's a pretty impressive record of criminal justice reform since Texas has been under Republican control, so there's not inherently anything to fear for reformers from the Legislature's continued partisan tilt. More concerning, arguably, may be legislators' relative inexperience. As a general principle, a legislative body awash with inexperienced members bodes poorly for criminal justice because every politician knows as a default it's safe to run as "tuff" on crime. It takes time to learn the byzantine, interconnected reality of the justice system involving a vast alphabet soup of different local, state and federal actors. There are also many other issues much higher on voters' priority lists, so these subjects mostly aren't coming up in campaigns. Thus, once at the capitol, inexperienced legislators can become paralyzed, willing to vote for enhancements and new crimes because it looks "tuff," but fearing to reform a system they don't understand yet. By the time a legislator has spent several sessions on the Corrections Committee, for example - hearing testimony, having been lobbied by prosecutors, police unions, chiefs, Sheriffs, not to mention judges, cities, counties, and reformers, delving into the details of recurring, longstanding political squabbles - it becomes (a little) easier to apply one's own principles to specific, real-world problems. That's impossible to do when folks don't even understand what the institutions are and how they work together, plus our short, biennial sessions mean there's not much time for learning on the job.
OTOH, depending on the issue, it's also possible a wave of new, ideologically committed conservatives could take on criminal justice issues that haven't received much focus. At the end of the 2011 session, freshman Rep. David Simpson made Fourth Amendment rights at TSA searches in airports an issue and used grassroots conservative clout to muscle the provision further through the process than anyone thought possible. In my experience, Fourth Amendment issues are ripe for attention by conservatives who really do want government out of our private lives. Much of the grass-roots base supports it, even if the establishment types in the GOP continue to kowtow to the tuff-on-crime crowd.
Moreover, the 2013 Texas Legislature faces a yawning budget gap that will have every pol in the building, freshmen and sophomores included, scratching for budget savings in ways that, on criminal justice, potentially benefit reformers looking to scale back mass incarceration. Unlike education and healthcare, prison spending is one of the few areas the public won't howl like scalded cats in the face of large spending reductions. Indeed, the Lege was mostly praised last year when Texas closed its first prison unit ever since the founding of the Republic. There aren't many other parts of the budget you can point to where cuts earn praise from the public instead of disapprobation. So if the type of draconian cuts threatened at the beginning of last session actually came to fruition, ironically prisons may be one of the politically safest places to cut
Of course, in the real world the Lege can't reduce prison spending significantly without changing incarceration policies. The Lege on paper reduced the budget for prison healthcare last year by around $100 million over the biennium, then TDCJ almost immediately began paying $5 million per month extra while they renegotiated healthcare services, an amount greater than the Lege had cut. Real savings must come from actually reducing the burden on government - bolstering less expensive community supervision while reducing high-cost incarceration to the greatest extent possible. There are an array of possible policy mechanisms to achieve that goal, but with so many new members and so much of the leadership in flux, it's difficult to say whether the Lege will embrace reform or, as happened on so many issues last session, just kick the can further down the road with band-aids and accounting gimmicks.
Bottom line, oversimplifying only a tad: If Small-Government Conservatives act on their principles on criminal justice, generally reformers win. When Big-Government Conservatives side with Big-Government Liberals - which historically has happened much more often - we get penalty enhancements and tuff-on-crime demagoguery. With so much in flux, my crystal ball is hazy regarding which outcome to expect. Texas government finds itself, both politically and financially, in an extraordinarily uneasy transition moment, with such questions largely held hostage by dynamics which are utterly unrelated to public safety and effective criminal justice policy.
Inexperience will also contribute to molding the House's personality.
With 38 freshmen in 2011 and maybe 30 newbies in 2013, the 2013 session could have the most inexperienced collection of members in more than 30 years, Jillson said.
Rep. John Smithee, a Republican from Amarillo with 27 years of experience in the state House, said he can imagine a situation in which there will be more first-term and second-term lawmakers in the House than he has ever seen.
Smithee said it will be difficult to replace some of influential members, who will be leaving for a variety of reasons — personal, professional and political considerations.
"The biggest impact will come from the loss of lots of institutional knowledge," he said. "It's a big loss."
Some Republican legislative leaders who will depart include: Reps. Burt Solomons, R-Carrollton, and chairman of the Redistricting Committee; Will Hartnett, R-Dallas; Jerry Madden, R-Richardson, chairman of the Corrections Committee; Beverly Woolley, R-Houston; Warren Chisum, R-Pampa; and Jim Jackson, R-Carrollton, chairman of Judiciary & Civil Jurisprudence Committee.On the criminal justice front, of special concern is who fills the chairmanships at the Corrections and Criminal Jurisprudence Committees. On Corrections, Jerry Madden earned a national reputation as a co-author with Sen. John Whitmire of Texas' 2007 probation reforms, while as chair of Criminal Jurisprudence, Pete Gallego was the House sponsor/author of several key innocence reforms including Texas' new eyewitness ID statute. Who replaces those men will tell us a lot about the direction those committees might take, and by extension what might be possible in 2013.
The Democrats are losing relatively few important members, such as the soft-spoken Rep. Pete Gallego, D-Alpine, who chaired the House Criminal Jurisprudence committee, and Rep. Scott Hochberg, D-Houston, an expert on school finance. The result of the Democrats remaining largely intact could be greater influence for the party, Acuña said.
But the exodus of long-serving and powerful members also represents opportunity for younger members to fill important committee chairmanships.
There's a pretty impressive record of criminal justice reform since Texas has been under Republican control, so there's not inherently anything to fear for reformers from the Legislature's continued partisan tilt. More concerning, arguably, may be legislators' relative inexperience. As a general principle, a legislative body awash with inexperienced members bodes poorly for criminal justice because every politician knows as a default it's safe to run as "tuff" on crime. It takes time to learn the byzantine, interconnected reality of the justice system involving a vast alphabet soup of different local, state and federal actors. There are also many other issues much higher on voters' priority lists, so these subjects mostly aren't coming up in campaigns. Thus, once at the capitol, inexperienced legislators can become paralyzed, willing to vote for enhancements and new crimes because it looks "tuff," but fearing to reform a system they don't understand yet. By the time a legislator has spent several sessions on the Corrections Committee, for example - hearing testimony, having been lobbied by prosecutors, police unions, chiefs, Sheriffs, not to mention judges, cities, counties, and reformers, delving into the details of recurring, longstanding political squabbles - it becomes (a little) easier to apply one's own principles to specific, real-world problems. That's impossible to do when folks don't even understand what the institutions are and how they work together, plus our short, biennial sessions mean there's not much time for learning on the job.
OTOH, depending on the issue, it's also possible a wave of new, ideologically committed conservatives could take on criminal justice issues that haven't received much focus. At the end of the 2011 session, freshman Rep. David Simpson made Fourth Amendment rights at TSA searches in airports an issue and used grassroots conservative clout to muscle the provision further through the process than anyone thought possible. In my experience, Fourth Amendment issues are ripe for attention by conservatives who really do want government out of our private lives. Much of the grass-roots base supports it, even if the establishment types in the GOP continue to kowtow to the tuff-on-crime crowd.
Moreover, the 2013 Texas Legislature faces a yawning budget gap that will have every pol in the building, freshmen and sophomores included, scratching for budget savings in ways that, on criminal justice, potentially benefit reformers looking to scale back mass incarceration. Unlike education and healthcare, prison spending is one of the few areas the public won't howl like scalded cats in the face of large spending reductions. Indeed, the Lege was mostly praised last year when Texas closed its first prison unit ever since the founding of the Republic. There aren't many other parts of the budget you can point to where cuts earn praise from the public instead of disapprobation. So if the type of draconian cuts threatened at the beginning of last session actually came to fruition, ironically prisons may be one of the politically safest places to cut
Of course, in the real world the Lege can't reduce prison spending significantly without changing incarceration policies. The Lege on paper reduced the budget for prison healthcare last year by around $100 million over the biennium, then TDCJ almost immediately began paying $5 million per month extra while they renegotiated healthcare services, an amount greater than the Lege had cut. Real savings must come from actually reducing the burden on government - bolstering less expensive community supervision while reducing high-cost incarceration to the greatest extent possible. There are an array of possible policy mechanisms to achieve that goal, but with so many new members and so much of the leadership in flux, it's difficult to say whether the Lege will embrace reform or, as happened on so many issues last session, just kick the can further down the road with band-aids and accounting gimmicks.
Bottom line, oversimplifying only a tad: If Small-Government Conservatives act on their principles on criminal justice, generally reformers win. When Big-Government Conservatives side with Big-Government Liberals - which historically has happened much more often - we get penalty enhancements and tuff-on-crime demagoguery. With so much in flux, my crystal ball is hazy regarding which outcome to expect. Texas government finds itself, both politically and financially, in an extraordinarily uneasy transition moment, with such questions largely held hostage by dynamics which are utterly unrelated to public safety and effective criminal justice policy.
Police quietly expanding warrantless cell phone tracking
The New York Times this weekend had a feature on the dramatic growth in cell-phone tracking by law enforcement based on thousands of pages of documents obtained by the ACLU from local police departments, reporting that:
As an aside, the Times continues to misstate the effect of a recent SCOTUS ruling on police placing GPS trackers on cars, insisting the court found "that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches." In fact, SCOTUS ruled only that placing a GPS tracker on your car is a search, and did NOT go so far as to say it was an unreasonable one. The ruling was exceptionally narrow in that regard, and for some reason most of the media have overstated what the court actually said.
MORE: See ACLU's writeup of documents they received under open records.
While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.At the end of the story, there's a brief discussion about pending reform efforts:The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cellphones — many of which also include GPS locators — it raised questions about the standards for cellphone tracking, lawyers say.The police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking, even as they work to exploit the technology.In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show.In California, state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.
Congress and about a dozen states are considering legislative proposals to tighten restrictions on the use of cell tracking.While cell tracing allows the police to get records and locations of users, the A.C.L.U. documents give no indication that departments have conducted actual wiretapping operations — listening to phone calls — without court warrants required under federal law.Much of the debate over phone surveillance in recent years has focused on the federal government and counterterrorism operations, particularly a once-secret program authorized by President George W. Bush after the Sept. 11 attacks. It allowed the National Security Agency to eavesdrop on phone calls of terrorism suspects and monitor huge amounts of phone and e-mail traffic without court-approved intelligence warrants.
This is an issue I'd like to see the Texas Legislature address in 2013, preferably creating a warrant requirement for obtaining personal information including location from people's cell phones. This practice will be abused without rigorous court oversight and strong laws protective of personal privacy.Clashes over the program’s legality led Congress to broaden the government’s eavesdropping powers in 2008. As part of the law, the Bush administration insisted that phone companies helping in the program be given immunity against lawsuits.Since then, the wide use of cell surveillance has seeped down to even small, rural police departments in investigations unrelated to national security.“It’s become run of the mill,” said Catherine Crump, an A.C.L.U. lawyer who coordinated the group’s gathering of police records. “And the advances in technology are rapidly outpacing the state of the law.”
As an aside, the Times continues to misstate the effect of a recent SCOTUS ruling on police placing GPS trackers on cars, insisting the court found "that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches." In fact, SCOTUS ruled only that placing a GPS tracker on your car is a search, and did NOT go so far as to say it was an unreasonable one. The ruling was exceptionally narrow in that regard, and for some reason most of the media have overstated what the court actually said.
MORE: See ACLU's writeup of documents they received under open records.
Rabu, 28 Maret 2012
SCOTUS to consider what training, credentials needed for drug-dog alert probable cause
The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.
The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."
The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."
Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."
How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?
This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."
I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.
MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.
AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."
FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.
The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."
The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."
Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."
How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?
This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."
I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.
MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.
AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."
FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.
Kamis, 22 Maret 2012
Austin police gave 26% fewer traffic tickets in 2011
It turns out Austin's decline in the number of traffic tickets given out last year was even greater than Grits had supposed according to the city's recent racial profiling report (pdf), which I noticed via this story by Patrick George in the Austin Statesman. Grits has earlier reported that tickets processed in municipal court in Austin had declined from roughly 233,000 to 205,000 from 2010 to 2011 - part of a statewide trend.
The racial profiling report shows Austin officers last year gave far fewer tickets last year. "Austin police officers made 179,882 motor vehicle stops in 2011 compared to 232,848 in 2010," according to the city's racial profiling report. One caveat: That's comparing calendar year to calendar year whereas the Office of Court Administration is measuring the fiscal year (September to August).
Still, that's an amazing 26% fewer tickets from year to year! Said the report: "Overall, the number of stops is lower in 2011, in part, because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183. As a consequence, the number of traffic citations declined from 224,662 in 2010 to 165,757 in 2011, a 26% reduction. The overall number of motor vehicle stops also decreased by 23%." That has trickle down effects at the jail and throughout the court system because so many arrests originate at traffic stops.
Austin also saw the number of consent searches at traffic stops decline last year, from the highest total since they began tracking in 2010 (19,519) to a more modest 2011 total (11,719)), for a 40% drop.
I went to check the same data source for other cities and was disappointed to see this on the TCLEOSE website: "Note: The link to the 2010 Racial Profiling reports from the TCLEOSE website is no longer available on-line, but may be purchased for $35 (CD disk) through Open Records Request." That's pointless. How much space does it take to archive past years' reports for comparison? I might go ahead and get a couple of years worth for comparison purposes, but that's gratuitous. At least leave the last 3-5 years of reports online to supply some context for the annual data.
The racial profiling report shows Austin officers last year gave far fewer tickets last year. "Austin police officers made 179,882 motor vehicle stops in 2011 compared to 232,848 in 2010," according to the city's racial profiling report. One caveat: That's comparing calendar year to calendar year whereas the Office of Court Administration is measuring the fiscal year (September to August).
Still, that's an amazing 26% fewer tickets from year to year! Said the report: "Overall, the number of stops is lower in 2011, in part, because the Highway Enforcement Command shifted its mission from citywide traffic enforcement to a focus on the major highways such as IH-35, MoPac and 183. As a consequence, the number of traffic citations declined from 224,662 in 2010 to 165,757 in 2011, a 26% reduction. The overall number of motor vehicle stops also decreased by 23%." That has trickle down effects at the jail and throughout the court system because so many arrests originate at traffic stops.
Austin also saw the number of consent searches at traffic stops decline last year, from the highest total since they began tracking in 2010 (19,519) to a more modest 2011 total (11,719)), for a 40% drop.
I went to check the same data source for other cities and was disappointed to see this on the TCLEOSE website: "Note: The link to the 2010 Racial Profiling reports from the TCLEOSE website is no longer available on-line, but may be purchased for $35 (CD disk) through Open Records Request." That's pointless. How much space does it take to archive past years' reports for comparison? I might go ahead and get a couple of years worth for comparison purposes, but that's gratuitous. At least leave the last 3-5 years of reports online to supply some context for the annual data.
Rabu, 29 Februari 2012
Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?
The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:
A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant."The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said."Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.
If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.
Minggu, 26 Februari 2012
The newest toys in the box: Police deploy cell-phone trackers, drones
A pair of stories show how technology is rapidly reshaping old debates about the Fourth Amendment and privacy, raising questions about whether sketchy protections outlined in the 18th Century still serve to prevent government abuses using technologies the Founding Fathers couldn't imagine.
First, the Fort Worth Star-Telegram has a story about "a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week."
Another problem with spending that much on a piece of technology is that then the agency will feel compelled to find reasons to use it, if only to reduce the cost-per-case figure when trying to justify the expense in the budget..
Then, at CNBC there's an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:
Every kid wants to play with the newest toy in the box, and police are no different, so these technologies are going to be used. The question is can they be adequately regulated, or will their novelty confound the courts and prevent lawmakers from adequately constraining them?
First, the Fort Worth Star-Telegram has a story about "a new cellphone tracking system authorized for purchase by the Fort Worth City Council this week."
The KingFish system, which gives police the ability to track cellphones without having to go through a provider or service, will cost more than $184,000 during its first year of operation, according to a memo prepared for City Council prior to its vote.Fortunately Texas state law is actually better developed than federal law on this question, and the Fort Worth police would absolutely be required to get a warrant in most circumstances. (A recent SCOTUS case ruled that using a GPS tracker on a vehicle is a "search," but declined to decide whether it required a warrant in federal cases.) Of course, it doesn't take very much to get a search warrant, and if the information is never used in court, nobody would know if they failed to do so, so in practice even a warrant is a relatively weak limitation.
The memo said that Fort Worth police officers have already utilized the technology and have received training from agents with the U.S. Secret Service and the U.S. Marshal's task force, agencies that have assisted the police in using the tracking system in the past. The KingFish units are mobile and can be mounted on a vehicle or carried by officers in the field.
Those concerned about the technology's capabilities worry that police will use the system to monitor the movements of suspects or subjects of its investigations without first obtaining warrants or a judge's permission.
Another problem with spending that much on a piece of technology is that then the agency will feel compelled to find reasons to use it, if only to reduce the cost-per-case figure when trying to justify the expense in the budget..
Then, at CNBC there's an item about the increasing use of drones by civilian police agencies, news media and an array of other possible users. The story opens:
Heads up: Drones are going mainstream. Civilian cousins of the unmanned military aircraft that have tracked and killed terrorists in the Middle East and Asia are in demand by police departments, border patrols, power companies, news organizations and others wanting a bird's-eye view that's too impractical or dangerous for conventional planes or helicopters to get.Along with the enthusiasm, there are qualms.Drones overhead could invade people's privacy. The government worries they could collide with passenger planes or come crashing down to the ground, concerns that have slowed more widespread adoption of the technology.Despite that, pressure is building to give drones the same access as manned aircraft to the sky at home.
Unlike mobile tracking devices, Texas law - either our statutes or case law - are no more prepared for the challenges posed by police use of drone technology than at the federal level. There's basically a vacuum that, for now, lets police and other users do nearly whatever they want."It's going to be the next big revolution in aviation. It's coming," says Dan Elwell, the Aerospace Industries Association's vice president for civil aviation.
Every kid wants to play with the newest toy in the box, and police are no different, so these technologies are going to be used. The question is can they be adequately regulated, or will their novelty confound the courts and prevent lawmakers from adequately constraining them?
Kamis, 26 Januari 2012
SCOTUS expands scope of Fourth Amendment in divided 9-0 ruling
At the US Supreme Court case this week, the opinion in US v. Jones on GPS tracking of private vehicles was a fascinating piece of jurisprudence. Ostensibly a 9-0 decision, the only thing all nine justices agreed on was the bottom line that "the decision of the Court of Appeals must be affirmed," and none of them for precisely the reasons on which the lower court based its decision!
To make matters even more confusing, as Tom Goldstein pointed out at SCOTUSBlog, most of the mainstream media misinterpreted the opinion to say a warrant is required to use GPS tracking on a personal vehicle. But the ruling does not address the warrant requirement, only whether the GPS tracking constituted a "search."
What's the distinction? The Fourth Amendment only bans "unreasonable" searches without a warrant, but the courts have carved out wide swaths of legal territory where warrantless searches are routinely allowed. Wrote Goldstein, "The government probably conducts fifty times as many warrantless searches a day as warrant-based searches. The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine." I'd also add consent searches at traffic stops and searches incident to arrest as examples of warrantless searches. They're far more common than search warrants, and there's no guarantee this ruling will require a warrant in every instance GPS is used by federal agents, particularly when it's used for a relatively brief period of time.
In an earlier post, Goldstein discussed the breakdown among justices as insightfully as I've seen on this case:
Seldom do 9-0 rulings reveal such sharp, underlying disagreement. But that's not the biggest story coming out of the case, which surely marks one of the most important moments in Fourth Amendment jurisprudence in the last 50 years. As Orin Kerr pointed out at the Volokh Conspiracy, Scalia's majority opinion articulated a new test for what constitutes a search, reaching back to historic court precedents based on property rights as opposed to modern jurisprudence based on a "reasonable expectation of privacy," first articulated in the Katz decision in 1967. That case, which dealt with an eavesdropping device planted in a phone booth (ask your parents or watch an episode of Dr. Who if you don't know what that is), found that “the Fourth Amendment protects people, not places” abandoning the "trespass" model.
Scalia's opinion, though, demands that a defendant's "Fourth Amendment rights do not rise or fall with the Katz formulation" and makes the claim that "Katz did not narrow the Fourth Amendment’s scope." That's a matter of opinion and I surely disagree with it. I think Katz significantly narrowed the Fourth Amendment's scope by placing the focus almost solely on "reasonableness," and that this opinion reinforcing other aspects - in particular, the enumerated, protected places and items - represents a welcome corrective, broadening the Fourth Amendment's scope instead of narrowing it for the first time in decades.
Regardless, according to Scalia's most recent pronouncement, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." So going forward, the court has effectively added a new definition of what is a search while keeping the old one intact, expanding the scope of the Fourth Amendment in some as-yet-to-be-defined way.
Though I happen to agree with Scalia's policy choice in this case, it's pretty clear he's the one adding to Fourth Amendment jurisprudence, expanding the definition of a search beyond its Katz-based limits. Justice Alito called the majority opinion "unwise," declaring that "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." For Alito, as the court had expressly declared in its Kyollo ruling, the Katz opinion “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property,” which is certainly how this non-lawyer always understood it. While IMO Alito's concurrence accurately reflects the trajectory of Fourth Amendment stare decisis, Scalia's back-to-basics approach revitalizes aspects of the Fourth Amendment that the Katz approach brushed past too breezily in the name of reasonableness.
Justice Sonia Sotomayor received a great deal of attention for her concurrence, in which she expressed the fear that “GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'” (I'm glad somebody said it!)
Even "more fundamentally," wrote Sotomayor, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Hear, hear! That indeed is the great dark cloud looming over Americans' privacy frontier. Too bad the court's second-most junior justice couldn't get any of her colleagues to sign onto the sentiment that the court should address the question.
Just to mention it, for us here in Texas this ruling only applies to federal agents, as we already have a requirement that law-enforcement get a court order before placing a "mobile tracking device" on your car.
MORE: From Lori Andrews at The Crime Report. Here's a related editorial from the Houston Chronicle.
To make matters even more confusing, as Tom Goldstein pointed out at SCOTUSBlog, most of the mainstream media misinterpreted the opinion to say a warrant is required to use GPS tracking on a personal vehicle. But the ruling does not address the warrant requirement, only whether the GPS tracking constituted a "search."
What's the distinction? The Fourth Amendment only bans "unreasonable" searches without a warrant, but the courts have carved out wide swaths of legal territory where warrantless searches are routinely allowed. Wrote Goldstein, "The government probably conducts fifty times as many warrantless searches a day as warrant-based searches. The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine." I'd also add consent searches at traffic stops and searches incident to arrest as examples of warrantless searches. They're far more common than search warrants, and there's no guarantee this ruling will require a warrant in every instance GPS is used by federal agents, particularly when it's used for a relatively brief period of time.
In an earlier post, Goldstein discussed the breakdown among justices as insightfully as I've seen on this case:
I think that the correct way to understand the case is to read it as having two separate majority opinions. This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3). Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.Votes on Fourth Amendment questions tend to defy partisan makeup. In Jones, basically court conservatives and Sotomayor sided with Scalia for the majority opinion expanding the Fourth Amendment's scope, while Alito teamed up with those considered the "liberal" wing to denounce the expansion and critique Scalia's judicial activism.
Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.
Seldom do 9-0 rulings reveal such sharp, underlying disagreement. But that's not the biggest story coming out of the case, which surely marks one of the most important moments in Fourth Amendment jurisprudence in the last 50 years. As Orin Kerr pointed out at the Volokh Conspiracy, Scalia's majority opinion articulated a new test for what constitutes a search, reaching back to historic court precedents based on property rights as opposed to modern jurisprudence based on a "reasonable expectation of privacy," first articulated in the Katz decision in 1967. That case, which dealt with an eavesdropping device planted in a phone booth (ask your parents or watch an episode of Dr. Who if you don't know what that is), found that “the Fourth Amendment protects people, not places” abandoning the "trespass" model.
Scalia's opinion, though, demands that a defendant's "Fourth Amendment rights do not rise or fall with the Katz formulation" and makes the claim that "Katz did not narrow the Fourth Amendment’s scope." That's a matter of opinion and I surely disagree with it. I think Katz significantly narrowed the Fourth Amendment's scope by placing the focus almost solely on "reasonableness," and that this opinion reinforcing other aspects - in particular, the enumerated, protected places and items - represents a welcome corrective, broadening the Fourth Amendment's scope instead of narrowing it for the first time in decades.
Regardless, according to Scalia's most recent pronouncement, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." So going forward, the court has effectively added a new definition of what is a search while keeping the old one intact, expanding the scope of the Fourth Amendment in some as-yet-to-be-defined way.
Though I happen to agree with Scalia's policy choice in this case, it's pretty clear he's the one adding to Fourth Amendment jurisprudence, expanding the definition of a search beyond its Katz-based limits. Justice Alito called the majority opinion "unwise," declaring that "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." For Alito, as the court had expressly declared in its Kyollo ruling, the Katz opinion “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property,” which is certainly how this non-lawyer always understood it. While IMO Alito's concurrence accurately reflects the trajectory of Fourth Amendment stare decisis, Scalia's back-to-basics approach revitalizes aspects of the Fourth Amendment that the Katz approach brushed past too breezily in the name of reasonableness.
Justice Sonia Sotomayor received a great deal of attention for her concurrence, in which she expressed the fear that “GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'” (I'm glad somebody said it!)
Even "more fundamentally," wrote Sotomayor, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Hear, hear! That indeed is the great dark cloud looming over Americans' privacy frontier. Too bad the court's second-most junior justice couldn't get any of her colleagues to sign onto the sentiment that the court should address the question.
Just to mention it, for us here in Texas this ruling only applies to federal agents, as we already have a requirement that law-enforcement get a court order before placing a "mobile tracking device" on your car.
MORE: From Lori Andrews at The Crime Report. Here's a related editorial from the Houston Chronicle.
Selasa, 29 November 2011
Surveillance Tech: Fantasies of tin-foil hat crowd coming true
Examining the array of high-tech gadgetry available to law-enforcement to monitor people, Wired magazine identifies "Nine reasons Wired readers should wear tinfoil hats." They are:
• Warrantless Wiretapping
• Warrantless GPS Tracking
• Tracking Devices in Your Pocket
• Fake Cell Phone Towers
• The Border Exception
• The “6 Months and It’s the Government’s” Rule under ECPA
• The Patriot Act
• Government Malware
• Known Unknowns
License plate readers coupled with roadside cameras would've made my Top 9 list, but it's hard to fault these choices. Problem is, Fourth Amendment issues are a political nightmare, with a sturdy bipartisan consensus among elite circles for gutting its protections like a fish. For those who think voting Democrat will save you from such abuses, please read this paragraph from the Wired story carefully:
In the government arena, that leaves the courts (which are sharply divided on the subject), or else constructing bipartisan legislative coalitions on narrow, popular elements of a Fourth Amendment reform agenda. Examples that might have legs could be: Rolling back routine TSA frisks at the federal level, requiring warrants to access cell-phone data (which the states could do), or empowering drivers at traffic stops to refuse searches and avoid arrest for fine-only offenses (bills passed by the Texas Lege that Rick Perry vetoed).
Grits also continues to believe that the market may provide better short-medium term preventives than the courts to abuse of such technologies as detection devices become cheaper and more widespread.
The kinds of technologies described by Wired concern me, but such controls can only go so far. Think of a game of chess: Both players can see all of the other player's pieces, but unable to peer into your opponent's mind, it's still easy to be defeated. Besides, all these new technologies are labor intensive: They mainly generate mountains of data that some government employee (or these days, perhaps a private contractor) must sort through then presumably do something with. In an era of government downsizing, there's a limit to the amount of resources which can be applied to such endeavors. So surveillance has practical limits and its wide application is antithetical to popular calls for budget cutting and government efficiency. That's the good news.
The bad news, says Wired: "a tinfoil hat won’t help you at all." Via FourthAmendment.com.
See related Grits posts:
• Warrantless Wiretapping
• Warrantless GPS Tracking
• Tracking Devices in Your Pocket
• Fake Cell Phone Towers
• The Border Exception
• The “6 Months and It’s the Government’s” Rule under ECPA
• The Patriot Act
• Government Malware
• Known Unknowns
License plate readers coupled with roadside cameras would've made my Top 9 list, but it's hard to fault these choices. Problem is, Fourth Amendment issues are a political nightmare, with a sturdy bipartisan consensus among elite circles for gutting its protections like a fish. For those who think voting Democrat will save you from such abuses, please read this paragraph from the Wired story carefully:
The Obama administration claims Americans have no right to privacy in their public movements. The issue surfaced this month in a landmark case before the U.S. Supreme Court to determine if law enforcement agents should be required to obtain a probable-cause warrant in order to place a GPS tracking device on a citizen’s car. The government admitted to the Supreme Court that it thinks it would have the power to track the justices’ cars without a warrant.As for Republicans, short of a Ron Paul upset victory in the primaries, I doubt any current presidential candidate would be better than Obama on the subject and some would be much worse. So in the near term we're not going to vote our way out of this.
In the government arena, that leaves the courts (which are sharply divided on the subject), or else constructing bipartisan legislative coalitions on narrow, popular elements of a Fourth Amendment reform agenda. Examples that might have legs could be: Rolling back routine TSA frisks at the federal level, requiring warrants to access cell-phone data (which the states could do), or empowering drivers at traffic stops to refuse searches and avoid arrest for fine-only offenses (bills passed by the Texas Lege that Rick Perry vetoed).
Grits also continues to believe that the market may provide better short-medium term preventives than the courts to abuse of such technologies as detection devices become cheaper and more widespread.
The kinds of technologies described by Wired concern me, but such controls can only go so far. Think of a game of chess: Both players can see all of the other player's pieces, but unable to peer into your opponent's mind, it's still easy to be defeated. Besides, all these new technologies are labor intensive: They mainly generate mountains of data that some government employee (or these days, perhaps a private contractor) must sort through then presumably do something with. In an era of government downsizing, there's a limit to the amount of resources which can be applied to such endeavors. So surveillance has practical limits and its wide application is antithetical to popular calls for budget cutting and government efficiency. That's the good news.
The bad news, says Wired: "a tinfoil hat won’t help you at all." Via FourthAmendment.com.
See related Grits posts:
- Most SCOTUS Justices seem inclined to require warrant for GPS tracking
- Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable
- Droning on in Montgomery County: Unmanned aircraft could be mounted with weapons
- Is something in plain view if you can only see it by flying a toy helicopter with a camera over my back fence to peer onto my property?
- DPS spending millions on TDEX database while drivers license lines lengthen
- Is the Fourth Amendment dead or just in a coma? Debating when to pull the plug
Rabu, 09 November 2011
Most SCOTUS judges seem inclined to require warrant for GPS tracking
"it must be unconstitutional if it's scary."
- Antonin Scalia, oral arguments, US v. Jones
(Updated/expanded 11/10) I've been reading the transcript (pdf) from yesterday's oral arguments at the US Supreme Court in US v. Jones regarding whether law enforcement needs a warrant to attach a GPS tracker to your car and continually gather location and other information. Others much more qualified than I have analyzed the debate, so see these folks for much meatier, more lawyerly analyses:
- Orin Kerr, Volokh Conspiracy: "Reflections on the Oral Argument in United States v. Jones, the GPS tracking case," and "The two questions of Jones, and the potential difficulty of finding the proper voting rule"
- Lyle Denniston, SCOTUSBlog: "Argument recap: For GPS, get a warrant"
- Warren Richey, Christian Science Monitor: "Is GPS tracking of suspects too Orwellian?"
- John Biskupic, USA Today: "High-court case on GPS surveillance could break new ground"
- Julia Angwin and Scott Thurm, Wall Street Journal, "Judges weigh phone tracking"
- Check out photos from someone who camped out overnight to hear the SCOTUS arguments.
- See various additional MSM coverage.
First, there seemed to be wide agreement on the bench that GPS trackers on one's car should in most instances require a warrant, the only question being what exact rule should be enacted to limit the "plain view" exceptions that apply, say, with surveillance (electronic or physical) while driving along a public street. Orin Kerr was in the room and said he thought it was too close to call. Lyle Denniston, otoh, seemed to think most would go for a warrant requirement. My own prediction from afar, fwiw, Justice Scalia, Roberts and Alito will side with the liberal wing of the court to require a warrant under circumstances more prescriptive than this correspondent would prefer.
Second, Antonin Scalia seemed adamant that there was "unquestionably a trespass" involved in placing a tracker on a vehicle, which by definition makes it a "search," and most justices seemed to agree with him. Scalia seemed less convinced, though, as did the court, on whether the ongoing tracking function after the device had been placed constituted a "seizure."
A notable Scalia line: "you can say that there is a trespass for the purpose of obtaining information, which makes it a search. But I don't see how it's a seizure. A seizure, you have to bring something within your control. You have to stop the person or stop the vehicle. What has been seized when you -- when you slap a tracking device on a car?" I'm not completely sure how that distinction between search and seizure is practically important in this case, but it could be in the future. As I understand it, placing the device on the car may be a "trespass," hence a search, by Scalia's reasoning, but the ongoing broadcast of your location may not "seize" anything when your vehicle is in plain view from public vantage points). That said, it appears the search v. seizure issue need not be resolved, necessarily, to secure a court majority in this case.
Chief Justice John Roberts seemed (from the transcript) surprisingly, personally engaged on the subject, asking pointedly whether the state's advocate feels he is "entitled" to put a GPS tracker on the cars of the nine SCOTUS justices and "monitor ... our movements for a month." The attorney, Michael Dreeben, wouldn't immediately answer with a straight "yes" or "no," but Justice Roberts summarized his answer as "So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution." There were six different references during the questioning to George Orwell's novel 1984, including notably Justice Kennedy.
Justice Ginsburg asked what the difference between having a GPS attached to your car and living in London where virtually everywhere you go on the public streets you're under the watchful eye of CCTV? Good question. Counsel for Mr. Jones said he would find living in London under such circumstances "very scary," to which Scalia replied sarcastically, "it must be unconstitutional if it's scary."
Folowing up on the London surveillance theme, Justice Kennedy asked Jones attorney: "Suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for 5 days. Would that be lawful?" Mr. Leckar replied yes, under existing Supreme Court precedents, because there was no "physical intrusion" as in his client's case.
Justice Kagan at one point offered up a futuristic vision worthy of a Sci-Fi channel special, hypothesizing "a little robotic device following you around 24 hours a day anyplace you go that's not your home, reporting in all your movements to the police, to investigative authorities." She scoffed at "the notion that we don't think that our privacy interests would be violated by this robotic device," though that's a logical extension of the court's precedents on collecting evidence in so-called plain view.
Alito rightly observed that, because of past Fourth Amendment exceptions carved out by the court, it's pretty clear such comprehensive surveillance would be allowed, so the "heart" of this particular case is whether the state must trespass to place the GPS tracker. On that point, led by Scalia, the court seemed inclined to agree that that a trespass had occurred. Alito and Roberts' critical comments about the state's position made it seem to this writer like the majority will favor a warrant requirement for the search, perhaps disagreeing on to what extent there is a seizure.
Justice Breyer summed up the stakes well in this comment to the state's attorney: "if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." Bingo.
I generally agree with Justices Alito and Scalia that this is a line that legislatures should be drawing, though that preference shouldn't be used an excuse for SCOTUS failing to update its jurisprudence to match modern, high-tech reality. Fourth Amendment jurisprudence in modern courts has become degraded and unreliable. To combat the decline of Americans' right to be free from "1984"-style surveillance, which seems to leap past minimalist, low-tech, police-friendly SCOTUS rulings at every turn, legislatures need to actively rebuild Fourth Amendment principles from the ground up in the so-called laboratory of the states. The courts can't or won't do it, so legislatures must. That said, as Jones' attorney Stephen Leckard said to the court, "In this particular case I could probably give you 535 reasons why not to go to Congress." Ain't that the truth?
Finally, I was taken by Scalia's argument that, while normally the right to privacy is considered an expansion of the Fourth Amendment, in this instance SCOTUS privacy rulings are being used to argue for weakening traditional warrant requirements: A shrewd observation. He declared: "it is one thing to add that privacy concept to the Fourth Amendment as it originally existed and it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant." Hear! Hear! You tell 'em, Tony!
The transcript (pdf) from the oral arguments is an fun read for anybody geeky enough to be interested in these subjects. Go here to see briefs and amici from both sides as well as prior rulings.
Story idea: I know Grits has quite a few MSM readers, so for those of you in the press reading this, a great way to localize this story between now and the court's ruling sometime next year would be to find out if your local PD or Sheriff uses GPS tracking, what are their departmental policies, how many such trackers do they have, interview judges on whether local practice requires warrants, etc.? I suspect the majority of Supreme Court justices will find that GPS tracking of this type requires a warrant, so a story now on current uses of the technology puts you in a position to follow up next year to find out how locals are changing their ways, if and when the Supreme Court limits the practice.
Related:
Kamis, 27 Oktober 2011
Why judges rubber stamp search warrants based on anonymous CIs
If you ever wonder why judges sign off on questionable search warrants in drug cases based on information from unnamed criminals working as informants on behalf of police, the short answer is, "they have to." As evidence, look no further than a recent example in Houston where Judge Kevin Fine's denial of a search warrant was overturned by the 14th Court of Appeals. What drew this benchslapping? Applying too-strict scrutiny to hearsay information from an anonymous informant. Even where judges think such testimony merits more corroboration, in Texas judges are apparently bound to accept it uncritically when considering pre-indictment search warrants. The Houston Press has the story.
Selasa, 11 Oktober 2011
Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable
Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.
Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:
The Supreme Court will decide soon whether GPS tracking without a warrant is constitutional. But in the end, it may be the market that decides whether the tactic is viable.
Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:
Don't Give Thieves Access To Your Personal Information Or PossessionsAs technology improves, I'd expect these device to become even cheaper. Certainly anyone engaged in serious criminal activity with a significant revenue stream can already afford one. But as sophisticated government surveillance methods are turned toward the general public, I wouldn't be surprised to see demand for such devices expand beyond the criminal class. Jason Trahan at the Dallas News recently had a story (Oct. 6, behind the paywall) about the expanded use of electronic tracking and surveillance by law enforcement, which opened:
Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or "bugs" such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.
Technology and security have collided in the decade after 9/11.It's little wonder, then, that the manufacturers of the device mentioned above are actually suggesting a business model for people to make money with their product:
The result is an array of eavesdropping tactics, some of which have been used with great success in Dallas terrorism and corruption cases.
Vehicle trackers, wiretapping, cellphone GPS tracking are the updated versions of old-school, but still effective, tactics such as “sneak and peek” operations and simple covert surveillance.
“This stuff can be used to catch bad guys,” said Andrew Blumberg, a University of Texas math professor who studies technology and digital privacy issues.
“But the fact that you can do good things with it doesn’t outweigh the potential for abuse,” he said. “We need to have a national conversation about what’s acceptable,” he said.
That conversation got more complicated recently. This summer came the revelation that spy agencies, which generally do not need court warrants for their work, have also turned their attention stateside. Long prohibited from monitoring U.S. citizens, unless they were working with a foreign power or group, government organizations such as the National Security Agency may be using cellphone data to track more people’s movements here.
“There are certain circumstances where that authority may exist,” was the cryptic answer NSA general counsel Matthew Olsen gave the Senate Select Committee on Intelligence in July during his confirmation hearing to head the National Counterterrorism Center.
Olsen was asked to elaborate, but the details are classified. The exchange has stoked the debate on how far the government can go in watching, listening to and monitoring the activities of its bosses: the American people.
Make Up To $900 In 3 Hours Debugging Homes Or Businesses Of Eavesdropping Devices & Hidden CamerasI think they're right that the diminishing arena of personal privacy, particularly in public spaces, over time will create greater demand for "counter-surveillance" devices and services. I could even see auto manufacturers advertising devices that identify GPS trackers as an add-on feature in new vehicles for buyers who place a premium on their personal privacy. If one actually thinks your conversations, location or personal information are valuable enough for someone to engage in electronic surveillance, $500 is a relative bargain to prevent it. Indeed, as government and private-sector use of surveillance technology grows, and as this kind of counter-surveillance technology becomes more common and less expensive, I can see the day coming when these types of devices are as common as burglar alarms or other such security devices.
For every "Bug," "Telephone Tap," "Spy-Cam" and "GPS Tracking Device" that is sold, there are 20 - 30 people out there that are afraid that they are being secretly watched and/or listened to. If you've ever thought about entering one of the most interesting, exciting and extremely lucrative businesses around today, look no further. The Counter Surveillance industry is exploding with opportunity. The universal desire to escape this surreptitious Eavesdropping has now created a fantastic opportunity for individuals and firms that can once again restore this rapidly vanishing privacy. And now you can do it all with this tiny pocket sized device.
The Supreme Court will decide soon whether GPS tracking without a warrant is constitutional. But in the end, it may be the market that decides whether the tactic is viable.
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