Fourth Amendment

Not to get all originalist, but isn’t “government collecting evidence at random based on vague suspicion” exactly the scenario that the Framers of the Bill of Rights feared? Liberals — or at least liberals outside the White House — generally agree on this. Even conservatives are on board with this one. However, there is an alternative view. It may be too clever by half, but maybe the collection of phone data wasn’t really a search or seizure? Maybe it’s a “reasonable” search?

Some very smart people try to make the case that gobbling up phone data on all of us isn’t really a constitutional case. Let’s see if they convince you…

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cellphones

The United States Supreme Court has tackled the issue of cell phone privacy and ruled that data is different from other forms of technology. In late June, the Supreme Court issued an opinion: those of David Riley, a California man whose smartphone police officers searched, and Brima Wurie, a Massachusetts man who was carrying an older “flip phone” when he was arrested.2 The Riley and Wurie cases presented a straightforward, common question: “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”3 In Riley, police stopped the defendant for driving with an expired registration and discovered that his license had been suspended.4 After arresting Riley and impounding his vehicle at the police station, loaded firearms were discovered during a routine inventory search of Riley’s car. The police used this discovery as motivation to rummage through the defendant’s cell phone data, where they found photos and videos potentially linking him to gang activity, including a shooting for which he was later charged. In Wurie, the defendant was arrested on suspicion of selling drugs. At the police station, two cell phones were seized from Wurie. One of the phones, an antiquated “flip phone,” received repeated calls from a number identified as “my house.” After accessing the call history and phone directory, the police were able to identify the caller’s phone number and address. The address did, in fact, turn out to be Wurie’s house, from which they seized illegal drugs, a firearm, and cash attributed to the defendant. In neither case did police obtain a warrant before searching the phones.

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Warrant or GTFO.

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

– Chief Justice John Roberts, writing for the Court in Riley v. California, holding that the police generally need warrants to search the cellphones of people they arrest.

(Additional highlights from Chief Justice Roberts’s opinion, after the jump.)

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* SeaWorld lost its appeal. Apparently it’s not safe to lock murderous animals in a small pool and have people swim with them. [Blog of the Legal Times]

* Do you know what “Heartbleed” is? If the answer is no, you need to click on this immediately for the 10 things every lawyer needs to know about the latest computer security crisis. [Versus Texas]

* We’ve been hearing about declining law school applications, now let’s look at new projections of law school graduates. [The Faculty Lounge]

* Professor Orin Kerr explains that it might be time for courts to adopt computer-specific Fourth Amendment rules. Adapting 18th Century thinking to meet modern times? That’s crazy talk. [The Volokh Conspiracy / Washington Post]

* These guys must be the best Grand Theft Auto players ever. [Legal Juice]

* Being nice is a strength rather than a weakness. I’m incredulous. [Katz Justice]

‘We’re not Case Western Law.’

* Justice Antonin Scalia isn’t quite ready to publicly weigh in on whether computer data is considered a protected “effect” under the Fourth Amendment. “[T]hat may well come up [before the Supreme Court],” he says. Thanks NSA. [Business Insider]

* “[I]t doesn’t take many bad apples in a barrel to cause a stink.” No matter how hard Biglaw firms try to keep their confidential information locked down, someone’s going trade on it. It looks like STB is learning that the hard way. [Wall Street Journal (sub. req.)]

* The day after Michigan’s ban on same-sex marriage was struck down by Judge Bernard Friedman, couples who rushed to marry were met with some serious Sixth Circuit sadness. Way to stay and spoil all of the celebrations, judges. [New York Times]

* “We’re not the Cleveland Browns,” says one of Case Western Law’s interim co-deans. With that kind of a glowing endorsement, we don’t see how this law school could possibly fail. [Crain's Cleveland Business]

* Rutgers Law-Newark has a new low-bono fellowship program “believed to be the first of its kind in the nation.” Some other law schools might have a bone to pick about that statement. [New Jersey Star-Ledger]

John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA’s activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn’t have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA’s bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is… not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that’s the job of Congress, not the courts….

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“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

Katz v. United States

“’But who wants to be watched all the time?’

‘I do. I want to be seen. I want proof I existed [ . . . ] Most people do. Most people would trade everything they know, everyone they know — they’d trade it all to know they’ve been seen, and acknowledged, that they might even be remembered. We all know we die. We all know the world is too big for us to be significant. So all we have is the hope of being seen, or heard, even for a moment.”

The Circle, by Dave Eggers

The Circle (affiliate link), the latest novel by Dave Eggers, is a work of speculative fiction centering on a hypothetical technology company called the Circle. Eggers sets the story on a glossy, mythical Silicon-Valley internet campus that unapologetically resembles some famous not-so-mythical ones. At the start of the tale, the Circle has recently overtaken Google, Facebook, and Twitter. Its TruYou technology has created unified accounts for its users’ online presences, linking all social media profiles and bank information, tying it to users’ actual offline identities. TruYou is a convenience, a means of better connecting online, but it also changes the tenor of Internet conversation. Since TruYou eliminates pseudonyms and anonymous activity, it also restores real-life accountability to online comments and interactions. People are nicer. Shopping is easier. Communicating is quicker. People send “zings.” They respond with “smiles” or “frowns.” The reader need not decode much in order to recognize this world….

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[T]he city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution.

– Judge Shira Scheindlin (S.D.N.Y.), in a ruling declaring that the New York Police Department’s hotly debated stop-and-frisk tactics violated the Fourth and Fourteenth Amendments.

(Continue reading to see Judge Scheindlin’s glorious 195-page opinion. It’s a legal document that should be on every lawyer’s required reading list.)

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The ongoing court battle over warrantless cell phone location tracking continues and the latest decision is another setback for the Fourth Amendment. The Fifth Circuit Court of Appeals held that individuals have no reasonable expectation of privacy over their location data. The decision states that location data is a “business record” created by private companies with the implicit consent of cell phone users and therefore are not subject to privacy protections.

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Last week, I tested out a longer-form article picking up other stories from the week and stuff that got overlooked and put together a sort of “week in review.” Folks seemed to like it according to our handy-dandy analytics, so we’re trying it again to see if it was just a fluke of the busiest legal news week of the year.

So here are three bits of legal news from the holiday-shortened week that was, including the George Zimmerman trial’s technical difficulties, a lot of butthurt FISA judges, and… wait, is that an honest to God Third Amendment case?!?

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