Tag Archive | Fourth Amendment to the United States Constitution

Warrentless Cell Phone Searches and Location Privacy

Courts Divided Over Searches of Cellphones

by Smni Sengupta, NYR, November 25, 2012

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide. …“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

For full text of the article, visit Legality of Warrantless Cellphone Searches Goes to Courts and Legislatures – NYTimes.com.

 

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First American Arrested by Aid of Drone Argues 4th Amendment Violation

Written by Joe Wolverton, II, New American, June 5, 2012

It’s been about a year since a North Dakota man was arrested after a local SWAT team tracked him down using a Predator drone it borrowed from the Department of Homeland Security. Although the story has not been widely reported, Rodney Brossart became one of the first American citizens (if not the first) arrested by local law enforcement with the use of a federally owned drone aerial surveillance vehicle after holding the police at bay for over 16 hours. … As the matter proceeds through the legal system, Bruce Quick, the lawyer representing Brossart, is decrying the “guerilla-like police tactics” used to track and capture his client, as well as the alleged violation of the Fourth Amendment’s protection against unwarranted searches and seizures. While the police admittedly possessed an apparently valid search warrant, Quick asserts that no such judicial go-ahead was sought or obtained for the use of the Predator to track the suspect. Therein lies the constitutional rub.

For full text of the article, visit First American Arrested by Aid of Drone Argues 4th Amendment Violation.

Obama admin wants warrantless access to cell phone location data

By Timothy B. Lee, Ars Technica, March 7, 2012

A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. … Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier. … The Obama administration laid out its position in a legal brief last month, arguing that customers have “no privacy interest” in CSLR held by a network provider. Under a legal principle known as the “third-party doctrine,” information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. …

For full text of this article, visit Obama admin wants warrantless access to cell phone location data.

Limits on the Private Sector after US v Jones

Three great articles by Robert Gellman on location privacy, on First Amendment & Fourth Amendment issues in the US Supreme Court’s GPS Tracking case (US v. Jones), and on the complexities of legislating privacy after US v Jonesin the Communia Blog of the Woodrow Wilson Center‘s Commons Lab.

Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/.

Supreme Court GPS Tracking Case: Round-up and Resources

Updated February 20, 2012

UNITED STATES v. JONES
615 F. 3d 544, affirmed.

From Cornell University Legal Information Institute [HTML version has links to cited cases]:

From the Supreme Court and American Bar Association websites:

Legislation

In his written opinion, “Alito said the court and Congress should address how expectations of privacy affect whether warrants are required for remote surveillance using electronic methods that do not require the police to install equipment, such as GPS tracking of mobile telephones. Alito noted, for example, that more than 322 million cellphones have installed equipment that allows wireless carriers to track the phones’ locations (ABC News, Jan 23, 2012).” In his article linked below, Robert Gellman provides a nice overview of the complexities of the legislative process for updating privacy legislation after US v. Jones:

For a list of proposed location privacy legislation as of Fall 2011, visit the home page of Kevin Pomfret’s Centre for Spatial Law and Policy.

Law Review Articles and Essays

Case Summaries  and Commentaries (disclaimer: opinions and analyses are those of the original authors, not all may be accurate)

February 2012

January 2012

Older posts

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What Does the Supreme Court GPS Ruling Mean for Technology and Privacy?

By Jennifer Valentino-DeVries, Digits, Wall Street Journal, January 23, 2012

The Supreme Court ruled Monday that police violated the Fourth Amendment when they attached and used a GPS device to track a suspect’s vehicle without a warrant. … [But the Court’s decision] applies only to the placement and use of a GPS device that had to be attached to the suspect’s car. The justices said the device was an intrusion onto the suspect’s property, even if the car was being driven on public roads. The opinion doesn’t say anything about what would happen if the government were able to track the car through other electronic means, without ever touching the vehicle. …

For full text of the article, visit What Does the Supreme Court GPS Ruling Mean for Privacy? – Digits – WSJ.

Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property

As noted by Professor Daniel Solove, Orin Kerr is cited by the Supreme Court in both the majority opinion and in a concurring opinion of US v Jones for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004).  The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

by Orin S. Kerr, George Washington University – Law School, 102 Mich. L. Rev. 801 (2004)

 Abstract: This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

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