April 23, 2024

Engineering around social media border searches

The latest news is that the U.S. Department of Homeland Security is considering a requirement, while passing through a border checkpoint, to inspect a prospective visitor’s “online presence”. That means immigration officials would require users to divulge their passwords to Facebook and other such services, which the agent might then inspect, right there, at the […]

An analogy to understand the FBI's request of Apple

After my previous blog post about the FBI, Apple, and the San Bernadino iPhone, I’ve been reading many other bloggers and news articles on the topic. What seems to be missing is a decent analogy to explain the unusual nature of the FBI’s demand and the importance of Apple’s stance in opposition to it. Before I dive […]

Supreme Court Takes Important GPS Tracking Case

This morning, the Supreme Court agreed to hear an appeal next term of United States v. Jones (formerly United States v. Maynard), a case in which the D.C. Circuit Court of Appeals suppressed evidence of a criminal defendant’s travels around town, which the police collected using a tracking device they attached to his car. For more background on the case, consult the original opinion and Orin Kerr’s previous discussions about the case.

No matter what the Court says or holds, this case will probably prove to be a landmark. Watch it closely.

(1) Even if the Court says nothing else, it will face the constitutionally of the use by police of tracking beepers to follow criminal suspects. In a pair of cases from the mid-1980’s, the Court held that the police did not need a warrant to use a tracking beeper to follow a car around on public, city streets (Knotts) but did need a warrant to follow a beeper that was moved indoors (Karo) because it “reveal[ed] a critical fact about the interior of the premises.” By direct application of these cases, the warrantless tracking in Jones seems constitutional, because it was restricted to movement on public, city streets.

Not so fast, said the D.C. Circuit. In Jones, the police tracked the vehicle 24 hours a day for four weeks. Citing the “mosaic theory often invoked by the Government in cases involving national security information,” the Court held that the whole can sometimes be more than the parts. Tracking a car continuously for a month is constitutionally different in kind not just degree from tracking a car along a single trip. This is a new approach to the Fourth Amendment, one arguably at odds with opinions from other Courts of Appeal.

(2) This case gives the Court the opportunity to speak generally about the Fourth Amendment and location privacy. Depending on what it says, it may provide hints for lower courts struggling with the government’s use of cell phone location information, for example.

(3) For support of its embrace of the mosaic theory, the D.C. Circuit cited a 1989 Supreme Court case, U.S. Department of Justice v. National Reporters Committee. In this case, which involved the Freedom of Information Act (FOIA) not the Fourth Amendment, the Court allowed the FBI to refuse to release compiled “rap sheets” about organized crime suspects, even though the rap sheets were compiled mostly from “public” information obtainable from courthouse records. In agreeing that the rap sheets nevertheless fell within a “personal privacy” exemption from FOIA, the Court embraced, for the first time, the idea that the whole may be worth more than the parts. The Court noted the difference “between scattered disclosure of the bits of information contained in a rap-sheet and revelation of the rap-sheet as a whole,” and found a “vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.” (FtT readers will see the parallels to the debates on this blog about PACER and RECAP.) In summary, it found that “practical obscurity” could amount to privacy.

Practical obscurity is an idea that hasn’t gotten much traction in the Courts since National Reporters Committee. But it is an idea well-loved by many privacy scholars, including myself, for whom it helps explain their concerns about the privacy implications of data aggregation and mining of supposedly “public” data.

The Court, of course, may choose a narrow route for affirming or reversing the D.C. Circuit. But if it instead speaks broadly or categorically about the viability of practical obscurity as a legal theory, this case might set a standard that we will be debating for years to come.

The Gizmodo Warrant: Searching Journalists in the Terabyte Age

Last Friday night, police officers in California used a warrant to search the home of Jason Chen, the Gizmodo blogger who wrote about the iPhone prototype found in a Redwood City bar. Orin Kerr has written an interesting post assessing the legality of the search. I wanted to touch on an important issue he didn’t discuss: Whether the search the police are conducting is unconstitutionally overbroad.

Orin discusses two laws that specifically shield journalists from being the target of a search, the California Reporter’s Shield Law, found jointly at California Penal Code 1524(g) and California Evidence Code 1070, and the federal Privacy Protection Act (PPA), 42 U.S.C. 2000aa. Both laws were written to limit the impact of Zurcher v. Stanford Daily, a U.S. Supreme Court case authorizing the use of a warrant to search a newspaper’s offices. The Supreme Court decided Zurcher in 1978, and Congress enacted the PPA in 1980 (and amended it in unrelated ways in 1996). I’m not sure when the California law was enacted, but I bet it’s of similar vintage. In other words, all of the rules that govern police searches of news offices were created in the age of typewriters, desks, filing cabinets, and stacks of paper.

Now, flash forward thirty years. The police who searched Jason Chen’s home seized the following: A macbook, HP server, two Dell desktop computers, iPad, ThinkPad, two MacBook Pros, IOmega NAS, three external hard drives, and three flash drives. They also seized other storage-containing devices, including two digital cameras and two smart phones. If Jason Chen’s computing habits are anything like mine, the police likely seized many terabytes of disk space, storing hundreds of thousands (millions?) of files, containing information stretching back years. And they took all of this information to investigate an alleged crime (the sale of the iPhone prototype) that could not have happened more than 37 days before the search (the iPhone was found on March 18th), which they learned about from a blog post published four days before the search.

I’m deeply concerned about overbreadth as the police begin to search through these terabytes of information. The police now possess, intermingled with the evidence of the alleged crime they are investigating, hundreds of thousands of documents belonging to a journalist/blogger that are utterly irrelevant to their investigation. Jason Chen has been blogging for Gizmodo since 2006, and he’s probably written hundreds of stories. The police likely have thousands of email messages revealing confidential sources, detailing meetings, and trading comments with editors, and thousands of other documents bearing notes from interviews, drafts of articles, and other sensitive information. Because of Chen’s beat, some of these documents probably reveal secrets of great economic and business value in the Silicon Valley. Under traditional, outmoded Fourth Amendment rules, the police can read every single document they possess, so long as they intend only to look for evidence of the crime, and under the “plain view rule,” they can use any evidence they find of other, unrelated crimes in court against Chen or anyone else.

If the California state courts share my concerns about overbreadth, they should consider embracing the very sensible rules for search warrants for computer hard drives (in any case, not just those involving journalists) adopted last year by the Ninth Circuit in United States v. Comprehensive Drug Testing. To paraphrase, in cases involving the search and seizure of computers, the Ninth Circuit requires five things: (1) the government must waive the plain view rule, meaning they must agree not to use evidence of crimes other than the one under investigation that led to the warrant; (2) the government must wall off the forensic experts who search the hard drive from the investigating the case; (3) the government must explain the “actual risks of destruction of information” they would face if they weren’t allowed to seize entire computers; (4) the government must use a search protocol to designate what information they can give to the investigating agents; and (5) the government must destroy or return non-responsive data.

These rules are especially needed when the target of a police search is a journalist (in fact, they may not go far enough). And these rules may be required under Zurcher. In justifying the search of the newspaper’s offices in Zurcher, the Supreme Court agreed that when the Fourth Amendment’s search and seizure rules collide with First Amendment values, like freedom of the press, the “Fourth Amendment must be applied with ‘scrupulous exactitude.'” The court went on to explain why ordinary search warrants for news offices (remember, back in the age of paper files) meet this heightened standard:

There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope, and intrusiveness that would actually interfere with the timely publication of a newspaper. Nor, if the requirements of specificity and reasonableness are properly applied, policed, and observed, will there be any occasion or opportunity for officers to rummage at large in newspaper files or to intrude into or to deter normal editorial and publication decisions.

When the California state courts combine this thirty-year-old statement of the law with the modern realities of terabyte storage devices, they should hold that the Fourth Amendment requires magistrate judges to play an integral and active role in the administration of the search of Jason Chen’s computers and other storage devices. At the very least, the courts should forbid the police from looking at any file timestamped before March 18, 2010, and in addition, they should force the police to comply with the Comprehensive Drug Testing rules. In the terabyte age, these rules are necessary at a minimum to prevent the police from interfering with a free press.