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View Diary: Police violate Fourth Amendment in order to get their hands on nifty gadgets (305 comments)

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  •  This device is how the CIA found Bin Laden. (4+ / 0-)

    Having multiple devices in police cars, each searching for a number and finding max signal strength, allows a computer to triangulate and zero in on the location to a very high accuracy.

    I don't know how accurate it is, GPS military is good to a 30 foot radius.

    But just like the license plate readers on police cars, reading every plate in sight as the sit or roam around, this thing is a BLATANT violation of the 4th amendment.

    Either you need to make EVERYONE AWARE they are under surveillance OR you need a warrant to place a particular person under surveillance.

    So either they drive around with a loudspeaker booming announcing ALL YOUR CELL PHONE ARE MINE or they get a warrant .... or they are breaking the law. Not that the fucking oinkers ever obey the law they allegedly swore to uphold and defend.

    Rule number one of upholding the law .... know what it is, and obey it yourself.

    •  Do you feel the same about police radar? (5+ / 0-)

      Which is often placed in a concealed location?

      I think the harm is the damage to the 4th Amendment on the basis of not getting warrants from a judge. But I see no problem in utilizing such devices to locate stolen electronic devices and then using the pings as a basis for securing a legal warrant. The use of the location devices themselves is not inherently unconstitutional from where I sit.

      •  Funny you said that ... (1+ / 0-)
        Recommended by:
        Pablo Bocanegra

        It is ILLEGAL for the police to HIDE from sight and operate a radar on traffic.

        That is why the cars must be in plain sight, and why police cars are not allowed to park at night with the lights off in the dark.

        THE DEVICE OR TECHNOLOGY USED is irrelevant to the 4th amendment protection.

        Eyeball, radar, cell snooper, license plate reader, etc, etc... IRRELEVANT.

        When the police put a drug corner under surveillance, they may not know the people's names, but they obtained a John Doe 1-x warrant with probable cause from a judge before hand.

        When they set up a radar "trap" they do it in plain sight, so you know you are being watched, and it is clear public knowledge they may be monitoring you with radar.

        Here's a sticky wicket!!!! .... Ez Pass. We have no clear regulations on this. Simple math between two Toll Booths could tell you how fast (avg speed) a driver was going between the two points. Now, the private company has/owns the data ... can the police use it against you? Hmmm. The private company surveilled you, not the government, so now where are the lines?

    •  I believe the proper phrasing is... (1+ / 0-)
      Recommended by:
      Horace Boothroyd III


    •  While IANAL, I'm guessing that the police (2+ / 0-)
      Recommended by:
      ClevelandAttorney, Catte Nappe

      do in fact have a legally-recognized right to monitor, record and lawfully follow up on (as in with a warrant and such) any information that's in the "public domain", which includes peoples' faces, license plates, and unencrypted data coming from your phone or WiFi router. How could they not?

      To me the real question is the legality of their monitoring, recording and using information that's NOT in the "public domain", which includes encrypted data, data that's not being transmitted, or say landline conversations, for which a warrant to obtain has not been granted.

      A potential gray area is whether they can capture encrypted data that's being transmitted in public, and then decrypt it on their own equipment.

      "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

      by kovie on Thu Mar 06, 2014 at 08:21:49 AM PST

      [ Parent ]

      •  This Case Probably discusses your consideration (6+ / 0-)



        Kyllo v. United States, 533 U.S. 27 (2001), held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. Because the police in this case did not have a warrant, the Court reversed Kyllo's conviction for growing marijuana.
        I can't quote but as an attorney I could see how my unique thermal imaging behind closed doors that can ONLY be picked up by such a device (requiring a warrant) is similar to my unique decryption? based on my rudimentary knowledge of such.

        Based on just googling including seeing police requesting Applye to decrypt data (piling up) it seems the police lack the ability, also these cases indicate that (while I did not read yet) it is already assumed to be an issue requiring warrant:

        Can police in the United States to force you to unlock an encrypted hard disk—or individual files on your PC—for inspection?

        A pair of federal appeals court decisions issued on February 23 clarified the murky answers to these questions. The answer is basically:

            If police know what you encrypted, they can make you decrypt it
            If police don't know what you encrypted, they can't make you decrypt it
        •  Which is why I thought it fell into the gray zone (2+ / 0-)
          Recommended by:
          ClevelandAttorney, Catte Nappe

          (or, in the example you cited, the polychromatic zone).

          Most people would agree that I'm allowed to notice that you're wearing a blue shirt in public (and then tell someone about it later if I feel like it). It's not an invasion of your privacy to notice what you're wearing (at least your outer garments that are clearly visible), at least not in a legal sense.

          Most people would also agree that neither you nor I nor the police can just break into someone's home and take their diary without a warrant or some other lawful reason (I suppose that I could do this if that person gave me a signed letter authorizing me to do this, if they didn't want to enter their home themselves for whatever reason).

          It's the in-between stuff that's fuzzy, such as the example you cited. I can easily see another court finding the other way, that since the heat emanating from someone's home eventually infiltrated the outside air, all the way to the street, where it was no longer private "information", the police had the right to monitor that heat (at least at the street level), and even enter that home sans warrant if they had a reasonable fear that the heat was due to a fire. A bit of a stretch and not the exact argument made by that PD I'm sure, and not necessarily how I'd rule if I were a judge, but it is conceivable.

          How does the law dictate whether anyone can capture and decrypt digital data that's transmitted over the "public" airways, and how is such data meaningfully different from non-encrypted analog data, be it a person's voice in an outdoor conversation overheard by others, or the color of their shirt?

          "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

          by kovie on Thu Mar 06, 2014 at 08:48:08 AM PST

          [ Parent ]

          •  Damn i was in the middle of a I hope good response (2+ / 0-)
            Recommended by:
            kovie, FarWestGirl

            or non response and mozilla crashed. Hold on. But great consideration as I had a class about this very tension.

          •  Ok responding anew (4+ / 0-)

            I did not answer:

            How does the law dictate whether anyone can capture and decrypt digital data that's transmitted over the "public" airways, and how is such data meaningfully different from non-encrypted analog data, be it a person's voice in an outdoor conversation overheard by others, or the color of their shirt?

            What I began was mostly by pointing out things people do not think about. Primarily from my experience I guess 10 years ago when the first Technological v. Common Law discussions were coming about.

            The Prof I had was a brilliant guy and this was important as only in 2002? 04? When we were at a cross-roads of basically two really important considerations that continue to get garbled and the debate is not over:

            1. Should we continue to use the English Common Law to Define all of these technological issues? They really do not fit? Some judges argue it is no different than any other development but we get into trademarks of "one click buying". Is that a business model? Is your URL more of an address people just know like a brick and mortar building or does me owning not matter? Contracts? Are they different now that I can just and simply click I read, how many clicks.

            So should we recognize this new and gigantic difficulty in defining post internet technological issues in strict Contract law that has existed since say the 1800's? Some judges did seeing it (Posner?) as nothing that the Common Law could not handle. Just a growth that lawyers/judges would handle. But the inherent problem is a part of question two that I take away and am reminded of from your discussion of intricate technology:

            2. If you were talking about implementing a policy, discussing decryption you would not ask your PR department or a Politician about back-doors. They don't know. They aren't equipped to understand. So we expect these publicly elected officials (actually their clerks) to listen and quickly render decisions on technological issues they cannot comprehend like an expert. It would be like not consulting or having an architect write their standards. Judges may be smart if lucky, but so many cannot fathom the technology and hence the implications of their decisions. So we are now trusting clerks to listen to two experts and understand complex law. Is that a role for the courts do we need a tech court as we have commercial law courts and their ilk?

            It is honestly troubling. I would imagine largely that they have created new law as they should. And that they have stuck very closely to concepts that have been around since common law to respect stare decisis when in truth the Internet is so different, technology becoming so advanced we have to get into discussions like that of heat signature rather than the crux that the principles behind what is publicly viewable clearly never considered such technology so we won't use and clearly it's the same as me going in your house and looking around without a warrant.

            I hope I make sense I am rushing a bit. I have a meeting in a moment. Hope to comment later.


            1. Since the 200's there has been this tension of just that question of how are we going to govern with laws, the same way as it's just growth, or rethink (I think the scale is closer)

            2. who we are trusting to decide really cannot comprehend how specialized the issues can become . . .

            I would need to research and maybe would your question. But it is an example of this broader dialogue that we once had when looking at this explosion of technology from contracts to criminal law. I hope that this cosideration is helpful as it is a stress and was at least (it seems they just are saying yeah the old way worked and letting it be justified without true consideration into the societal changes caused and methodologies and what their technologies do).

            I digress and will use Control C . . .

            •  As a non-lawyer I'm guessing that Posner et al (2+ / 0-)
              Recommended by:
              FarWestGirl, ClevelandAttorney

              were right in suggesting that the "law", meaning the set of laws both statutory (including the federal and state constitutions) and case (i.e. common) that make up our legal "code", and the principles, conventions and guidelines that help inform and shape them and really constitute their essential "core", are a sufficient base upon which new laws, of both types, can be made to deal with these emerging legal challenges emerging from new technologies and their various usages.

              I.e. there's nothing truly new under the sun, I believe, just new, interesting and challenging variations of all that's come before, that competent and conscientious legislators, lawyers and judges can handle over time.

              Of course, as you say, they're not always competent--nor conscientious, as we well know--which is where people like us, meaning legal and technological experts, and plain old concerned citizens, who care about protecting peoples' rights, come in, to present a counter to those who are not necessarily as competent or conscientious as we'd like them to be, in the legal and political systems, and in everyday situations where it becomes an issue.

              Thus, a law can be passed by legislators that to you and me appears to be too encroaching on peoples' rights, and possibly unconstitutional as well. It's our job to push to have this law repealed or amended, and until that happens to file suit against it in court. It's the job of judges to decide if we have standing, and if so if we have merit. If yes to both, great, and if this is upheld up the judicial food chain, the law is effectively repealed.

              If not, we can appeal, or file new suits, on all sorts of grounds (and there are many I'm sure, including the lack of a given judge's ability to understand the issues in question, and thus the applicability of the law in it, a clear appeal situation), while continuing to push for legislative repeal, until we succeed.

              And even then, people have the option of civil disobedience, either lawful, by employing better encryption methods, or unlawful, by engaging in illegal actions intended to protect ourselves from what we believe to be unlawful encroachment, such as smuggling data in tiny data cards.

              But I do not believe that there's anything inherently so new and different about today's technology (or security threats) that makes existing laws and legal principles obsolete. That's an argument that is most likely to be used by those who would abuse our rights, not protect them.

              I.e. neither 9/11 nor the iPhone changed everything. Not really.

              "Reagan's dead, and he was a lousy president" -- Keith Olbermann 4/22/09

              by kovie on Thu Mar 06, 2014 at 10:32:23 AM PST

              [ Parent ]

            •  Regardless of rulings, you CANNOT be forced to (0+ / 0-)

              Decrypt some file. It would be a violation of the 5th amendment, being forced to testify against yourself.

              I assume the case leading to that decision was just badly lawyered.

              Whether it was written in a cipher in 1792 or using 256bit AES on a smart phone ... you cannot be forced to "open" it.

              "We know what is in it?!" well then you don't need me to open it. I say you DO NOT know what's in it, good luck proving my assertion wrong.

              Whatever judge made the ruling:

              " If police know what you encrypted, they can make you decrypt it
                  If police don't know what you encrypted, they can't make you decrypt it"

              was seriously on drugs.

    •  Are you under the impression (2+ / 0-)
      Recommended by:
      The Jester, Larsstephens

      that the license plate on your car is hidden from view? Secret somehow?

      •  Of course not. But the surveillance of it and the (0+ / 0-)

        accessing by automation FOR NO REASON (let alone probable cause a crime has been committed) other than it was visible, is a violation of the 4th Amendment.

        YOU cannot be placed under surveillance (you specifically, and by reading the plate and running your data, that is what just occurred) unless:

        A) They have a warrant, in your name or as a John Doe, issued on the basis of probable cause.

        B) They are openly watching everyone and everyone is clearly informed they are under surveillance.

        Hiding, in the form of a little video camera on the police car and running all the numbers in sight for no other reason than they can .... is not legal.

        Boston MA police were so concerned with the legality just recently that they REMOVED the plate readers from there cars, you don't dump thousand$ in equipment without legitimate concern of its legality.

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