• Tag Archives 4th Amendment
  • Trump: Privacy for Me, Not for Thee

    Trump: Privacy for Me, Not for Thee

    President Donald Trump has a consistency problem on the issues of government surveillance and privacy. For the most part, Trump seems to make his ideological decisions based on how something impacts his life personally.

    This has been made overwhelmingly apparent watching Trump spend the entire weekend condemning former President Obama for allegedly wiretapping the phones at Trump hotels during the 2016 presidential campaign.

    While addressing the press and calling for a full congressional inquiry, President Trump referred to these actions as Obama’s “greatest abuse of power.”

    To be sure, if Trump’s accusations about Barack Obama prove to be true, this is absolutely appalling on behalf of the former president. However, is this the greatest abuse of power by the Obama Administration? Hardly.

    Hope and Change

    The Obama presidency was supposed to usher in a new era of government transparency. The Bush years had left the people traumatized as civil liberties and other constitutional safeguards were disregarded in the name of national security and the war on terror.  

    The people wanted change and President Obama was going to be the man who led this country back to freedom.

    Unfortunately, that was not the case.

    It wasn’t long before journalists had dubbed the Obama Administration one of the least transparent presidencies in modern times. To make matters worse, Obama continued to execute Bush’s destructive foreign policy strategy— he just did so in secret and kept it from the American public—or so he thought.

    Thanks to journalist Jeremy Scahill, the world discovered that President Obama had not only continued, but actually escalated the use of drone warfare in the Middle East. In Scahill’s Oscar nominated film, Dirty Wars, it was also revealed that  America’s favorite peaceful president had a secret kill list which he used to go after enemy combatants, including American citizens.

    The Edward Snowden NSA leaks came as a further blow to then President Obama, who was elected on a platform that promised to protect government whistleblowers. Of course, this section was conveniently removed from his change.org website shortly after Snowden’s first round of leaks.

    Given this information you would think Trump would admire Snowden. After all, Snowden, like Trump, discovered that the government was illegally spying on its citizens, and spoke up. However, that doesn’t seem to be the case.

    “Kill the Traitor”

    Uttering the phrase “kill the traitor” in 2013, Donald Trump called for the execution of Edward Snowden. During the campaign, Trump claimed that Snowden was working as a spy for Russia.

    While similar rhetoric was often thrown around by other Republican presidential candidates, Trump’s continued disapproval of Snowden was particularly perplexing, since it was only thanks to another infamous government whistleblower that Trump was thrown a lifeline when he needed it the most.

    Whether he will admit it or not, the leaked Access Hollywood footage dealt a huge blow to the Trump campaign. His offensive comments about women were putty in the hands of Hillary Clinton, who was desperately looking for any way to take him down.

    Just when it appeared like the Trump campaign would never recover from his past remarks, Wikileaks changed the game by leaking several of John Podesta’s personal email’s that admitted wrongdoing on the part of the Democratic National Committee.


    Trump seized on this moment and shifted the focus back to “crooked Hillary” and the Democratic Party and away from his own Access Hollywood scandal. Publicly declaring his love for Wikileaks, Trump went on to praise Assange for the good work he was doing while simultaneously condemning Snowden for the same actions.

    It should also not be forgotten that during the 2016 legal battle between Apple and the Department of Justice, Trump called for a national boycott of Apple until the company agreed to unlock the phone of San Bernardino shooter, Syed Farook.

    Addressing a crowd Trump said:

    “Apple ought to give the security for that phone, OK. What I think you ought to do is boycott Apple until such a time as they give that security number. How do you like that? I just thought of it. Boycott Apple.”

    With these comments, Trump sided with the surveillance state – one that threatens and oppresses not only Americans but every digital user on the planet – rather than with commerce and consumers, who are in desperate need of privacy protection. Apple sought to give that to its customers, while Trump wanted to take it away.

    Trump is absolutely right, the allegations that President Obama wiretapped his phones are indeed “very troubling.” However, they are no less troubling than the surveillance state that Trump has also advocated for both in his support of the Department of Justice’s fight against Apple, and his condemnation of Edward Snowden.

    Now that Trump thinks he has been a victim of the same spying he has favored on everyone else, he flies into a fury of outrage. He is right now and wrong before.

    Brittany Hunter

    Brittany Hunter is an associate editor at FEE. Brittany studied political science at Utah Valley University with a minor in Constitutional studies.

    This article was originally published on FEE.org. Read the original article.

  • Secret Court Orders Aren’t Blank Checks for General Electronic Searches

    Imagine this: the government, for reasons you don’t know, thinks you’re a spy. You go on vacation and, while you’re away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don’t find any evidence that you’re a spy, but they find something else—evidence of another, totally unrelated crime. You’re arrested, charged, and ultimately convicted, yet you’re never allowed to see what prompted the agents to think you were a spy in the first place.

    Sounds like something from dystopian fiction, right? Yet it’s exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub’s home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, and—critically—making wholesale copies of his hard drives.

    Agents were authorized by the secret Foreign Intelligence Surveillance Court (“FISC”) to search for evidence that Gartenlaub was spying for the Chinese government. There’s only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBI’s forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

    Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

    There are plenty of troubling aspects to Gartenlaub’s prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

    But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBI’s searches of Gartenlaub’s electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

    Here’s why: when agents copied and searched Gartenlaub’s devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like “plain view”—an exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

    Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldn’t have to ignore the dead body lying in the living room. But the way plain view works in the digital context—especially forensic computer searches—is not at all clear. How far can cops rummage around our computers for the evidence they’re authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computer—which the Fourth Amendment allows— and a general search for evidence of criminal activity—which the Fourth Amendment prohibits?

    Our electronic devices contain decades’ worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homes—or, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn’t turn into the type of general rummaging the Fourth Amendment was designed to prevent.

    In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBI’s search of Gartenlaub’s hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcement’s electronic search powers and in protecting our right to privacy in the digital age.

    Source: Secret Court Orders Aren’t Blank Checks for General Electronic Searches | Electronic Frontier Foundation

  • Border Security Overreach Continues: DHS Wants Social Media Login Information

    Now more than ever, it is apparent that U.S. Customs and Border Protection (CBP) and its parent agency, the Department of Homeland Security (DHS), are embarking on a broad campaign to invade the digital lives of innocent individuals.

    The new DHS secretary, John Kelly, told a congressional committee this week that the department may soon demand login information (usernames and passwords) for social media accounts from foreign visa applicants—at least those subject to the controversial executive order on terrorism and immigration—and those who don’t comply will be denied entry into the United States. This effort to access both public and private communications and associations is the latest move by a department that is overreaching its border security authority.

    In December 2016, DHS began asking another subset of foreign visitors, those from Visa Waiver Countries, for their social media handles. DHS defended itself by stating that not only would compliance be voluntary, the government only wanted to access publicly viewable social media posts: “If an applicant chooses to answer this question, DHS will have timely visibility of the publicly available information on those platforms, consistent with the privacy settings the applicant has set on the platforms.”

    As we wrote last fall in comments to DHS, even seeking the ability to view the public social media posts of international travelers implicates the universal human rights of free speech and privacy, and—importantly—the comparable constitutional rights of their American associates. Our objections are still salient given that DHS may soon mandate access to both public and private social media content and contacts of another group of foreigners visitors.

    Moreover, as a practical matter, such vetting is unlikely to weed out terrorists as they would surely scrub their social media accounts prior to seeking entry into the U.S.

    Such border security overreach doesn’t stop there.

    There have been several reports recently of CBP agents demanding access to social media information and digital devices of both American citizens and legal permanent residents. Most disturbing are the invasive searches of Americans’ cell phones, where CBP has been accessing social media apps that may reveal private posts and relationships, as well as emails, texts messages, browsing history, contact lists, photos—whatever is accessible via the phone.

    Such border searches of Americans’ digital devices and cloud content are unconstitutional absent individualized suspicion, specifically, a probable cause warrant. In light of the DHS secretary’s statements this week, we fear that DHS may soon take the next step down this invasive path and demand the login information for American travelers’ online accounts so that the government can peruse private, highly personal information without relying on access to a mobile device.

    Source: Border Security Overreach Continues: DHS Wants Social Media Login Information | Electronic Frontier Foundation