Yahoo Inc’s secret scanning of customer emails at the behest of a U.S. spy agency is part of a growing push by officials to loosen constitutional protections Americans have against arbitrary governmental searches, according to legal documents and people briefed on closed court hearings.
The unifying idea, they said, is to move the focus of U.S. courts away from what makes something a distinct search and toward what is “reasonable” overall.
The basis of the argument for change is that people are making much more digital data available about themselves to businesses, and that data can contain clues that would lead to authorities disrupting attacks in the United States or on U.S. interests abroad.
While it might technically count as a search if an automated program trawls through all the data, the thinking goes, there is no unreasonable harm unless a human being looks at the result of that search and orders more intrusive measures or an arrest, which even then could be reasonable.
Civil liberties groups and some other legal experts said the attempt to expand the ability of law enforcement agencies and intelligence services to sift through vast amounts of online data, in some cases without a court order, was in conflict with the Fourth Amendment because many innocent messages are included in the initial sweep.
“A lot of it is unrecognizable from a Fourth Amendment perspective,” said Orin Kerr, a former federal prosecutor and George Washington University Law School expert on surveillance. “It’s not where the traditional Fourth Amendment law is.”
“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt. He said he is leaving his post on Dec. 31 as the end of President Barack Obama’s administration nears.
This is outrageous. And it does highlight how the Obama Administration has worked, and continues to work, against the privacy rights of US citizens.
A federal judge in Manhattan ruled on Tuesday that drugs seized from a man charged in a narcotics case could not be used as evidence, because agents had not obtained a warrant for a covert cellphone tracking device that led them to his Washington Heights apartment, where the drugs were found.
The portable device, known as a cell-site simulator and often referred to as a Stingray, has been used widely by federal and local law enforcement officials around the country, including in New York, to solve crimes and locate missing people.
Last September, just weeks after the search in the Manhattan case, the Justice Department announced a new policy that requires federal law enforcement officials to obtain a search warrant in most cases before using a cell-site simulator.
The simulator essentially mimics a cellphone tower (or cell site), and tricks cellphones into transmitting “pings” to the device, allowing agents who have narrowed down a targeted phone’s location to determine where it is in use.
But the judge, William H. Pauley III of Federal District Court, ruled that the simulator’s use constituted a Fourth Amendment search. “Absent a search warrant,” he wrote, “the government may not turn a citizen’s cellphone into a tracking device.”
Nathan Freed Wessler, a staff lawyer with the Speech, Privacy and Technology Project, which is run by the American Civil Liberties Union, said the ruling was the first by a federal judge to suppress evidence obtained through the warrantless use of a cell-site simulator. In March, a Maryland appellate court affirmed a similar decision by a circuit court judge in Baltimore.
The objection is believed to be the first time a corporation has challenged a domestic search warrant seeking digital information overseas. The case has attracted the concern of privacy groups and major United States technology companies, which are already under pressure from foreign governments worried that the personal data of their citizens is not adequately protected in the data centers of American companies.
In a court filing made public on Monday, Microsoft said that if the judicial order to surrender the email stored abroad is upheld, it “would violate international law and treaties, and reduce the privacy protection of everyone on the planet.”
This is a real change in behavior. If all the large tech companies aggressively protect the right to privacy of their users it could go a long way to countering at least portions of the modern surveillance state. Kudos to Microsoft, Verizon and the EFF.
After the ruling, the FBI had a problem collecting the devices that it had turned off, Mr. Weissmann said. In some cases, he said, the FBI sought court orders to obtain permission to turn the devices on briefly – only in order to locate and retrieve them.
What I find interesting is that it appears that around 3,000 of the devices were deactivated. That represents 3,000 people who up to a couple of weeks ago were secretly tracked by their government without the minimum requirement of a simple search warrant. Not a huge number, but it is the number of devices in operation at one point in time. The number of people tracked by the FBI over the past several years is probably at least 180,000, assuming 30 days per person tracked over five years. And this estimate only covers the FBI. Surely other Federal agencies were using the same techniques.
This represents a significant victory over the continuing erosion of privacy rights in the United States.