• Tag Archives 4th Amendment

  • Microsoft sues U.S. government over data requests

    Posted on by Azrael Comment

    Microsoft Corp (MSFT.O) has sued the U.S. government for the right to tell its customers when a federal agency is looking at their emails, the latest in a series of clashes over privacy between the technology industry and Washington.

    The lawsuit, filed on Thursday in federal court in Seattle, argues that the government is violating the U.S. Constitution by preventing Microsoft from notifying thousands of customers about government requests for their emails and other documents.

    The government’s actions contravene the Fourth Amendment, which establishes the right for people and businesses to know if the government searches or seizes their property, the suit argues, and Microsoft’s First Amendment right to free speech.

    The Department of Justice is reviewing the filing, spokeswoman Emily Pierce said.

    Microsoft’s suit focuses on the storage of data on remote servers, rather than locally on people’s computers, which Microsoft says has provided a new opening for the government to access electronic data.

    Using the Electronic Communications Privacy Act (ECPA), the government is increasingly directing investigations at the parties that store data in the so-called cloud, Microsoft says in the lawsuit. The 30-year-old law has long drawn scrutiny from technology companies and privacy advocates who say it was written before the rise of the commercial Internet and is therefore outdated.

    “People do not give up their rights when they move their private information from physical storage to the cloud,” Microsoft says in the lawsuit. It adds that the government “has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”

    The lawsuit represents the newest front in the battle between technology companies and the U.S. government over how much private businesses should assist government surveillance.

    By filing the suit, Microsoft is taking a more prominent role in that battle, dominated by Apple Inc (AAPL.O) in recent months due to the government’s efforts to get the company to write software to unlock an iPhone used by one of the shooters in a December massacre in San Bernardino, California.

    Apple, backed by big technology companies including Microsoft, had complained that cooperating would turn businesses into arms of the state.

    “Just as Apple was the company in the last case and we stood with Apple, we expect other tech companies to stand with us,” Microsoft’s Chief Legal Officer Brad Smith said in a phone interview after the suit was filed.

    One security expert questioned Microsoft’s motivation and timing. Its lawsuit was “one hundred percent motivated by business interests” and timed to capitalize on new interest in customer privacy issues spurred in part by Apple’s dispute, said D.J. Rosenthal, a former White House cyber security official in the Obama administration.

    As Microsoft’s Windows and other legacy software products are losing some traction in an increasingly mobile and Internet-centric computing environment, the company’s cloud-based business is taking on more importance. Chief Executive Satya Nadella’s describes Microsoft’s efforts as “mobile first, cloud first.”

    Its customers have been asking the company about government surveillance, Smith said, suggesting that the issue could hurt Microsoft’s ability to win or keep cloud customers.

    In its complaint, Microsoft says over the past 18 months it has received 5,624 legal orders under the ECPA, of which 2,576 prevented Microsoft from disclosing that the government is seeking customer data through warrants, subpoenas and other requests. Most of the ECPA requests apply to individuals, not companies, and provide no fixed end date to the secrecy provision, Microsoft said.

    Microsoft and other companies won the right two years ago to disclose the number of government demands for data they receive. This case goes farther, requesting that it be allowed to notify individual businesses and people that the government is seeking information about them.

    Source: Microsoft sues U.S. government over data requests | Reuters


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  • Sixth Circuit Disregards Privacy in New Cell Site Location Information Decision

    Posted on by Azrael Comment

    This week, the Sixth Circuit Court of Appeals held, in United States v. Carpenter, that we lack any privacy interest in the location information generated by our cell phones. The opinion shows a complete disregard for the sensitive and revealing nature of cell site location information (CSLI) and a misguided response to the differences between the analog technologies addressed in old cases and the data-rich technologies of today.

    In 2011, the FBI was investigating a string of robberies in and around Detroit. Relying solely on a court order, the FBI got several months of round-the-clock CSLI data on the two defendants in an attempt to link them to the crimes. CSLI are phone company records of cell phone towers your phone connects to at a given time and date.  After the case was appealed to the federal appellate court, we joined the ACLU, the Brennan Center, CDT, and NACDL in arguing that acquiring this sensitive long-term, historical location information without a warrant violated the Fourth Amendment.

    In reaching its contrary opinion, the Sixth Circuit repeatedly relied on old cases addressing much less intrusive “technologies” like letters and landline phones. Perhaps in an attempt to distinguish its earlier privacy-protective opinion in U.S. v. Warshak (which protected emails from warrantless searches), the court based much of its analysis on the distinction between content and “conveyance” information. It determined that CSLI was merely “information necessary to convey” a call, rather than the content of the call itself, and therefore access to CSLI records was not a “search” for purposes of the Fourth Amendment.

    This analysis is a little different from many other cases we’ve worked on where courts have held that because your location information is shared with a “third party” cellphone service provider, you no longer have an expectation of privacy in it (the Sixth Circuit cited to this doctrine as well). Here, the Sixth Circuit seems to be trying to further minimize the sensitive nature of location information by analogizing it to the addressing information on the outside of a single envelope sent through the mail.

    The court also distinguishes CSLI from the GPS tracking at issue in the Supreme Court case U.S. v. Jones, finding that CSLI is not nearly as precise as GPS. However, as we argued in our brief, the CSLI data in this case was precise enough for the government to convince a jury that the defendants were at each of the specific robbery locations. We also noted that the data was precise enough to place one of the defendants at church every Sunday, and we argued that the sheer scope of the data collected by the government—three months of continuous monitoring for one defendant and four months for the other—makes this data just as sensitive as the 28 days of GPS monitoring at issue in Jones.

    In a particularly short-sighted part of the opinion, the court held that, in passing the Stored Communications Act in 1986, Congress somehow already “specifically legislated” on the constitutionality of warrantless law enforcement access to CSLI. Of course, it’s hard to imagine how Congress could have fully comprehended the privacy issues in CSLI, much less specifically addressed them at a time when mobile phones operated on a 1G network, were the size of a person’s head, and cost $3,300.

    The concurring opinion points out many of these shortcomings. It notes that although CSLI is not as precise as GPS, it should nevertheless be analogized to location-tracking cases likeJones because the long-term, comprehensive monitoring possible through access to CSLI distinguishes it from envelope addressing information or business records like credit card information. The concurring opinion concludes that the court should develop a “new test” for technology like CSLI.

    Ultimately, the court seems to shirk its constitutional responsibilities by arguing that because modern technologies “evolve at rates more common to superbugs than to large mammals,” the court was not properly equipped to address the privacy issues raised by CSLI. We think courts are fully equipped to address these issues now, and we hope the defendants decide to petition a larger panel of judges at the court to review this opinion. We’ll be ready with an amicus brief if they do.

    Source: Sixth Circuit Disregards Privacy in New Cell Site Location Information Decision | Electronic Frontier Foundation


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  • N.J. Supreme Court expands police authority for warrantless car searches

    Posted on by Azrael Comment

    The state Supreme Court on Thursday overturned its own 2009 decision on warrantless car searches, broadening police authority to search vehicles based on probable cause.

    The 5-2 decision, stemming from the case of a Salem County man who was charged with illegal handgun possession following an unrelated motor vehicle stop, was praised by the state Attorney General as a fix that helps law enforcement.

    Civil rights advocates, however, decried it as a rollback of civil liberties in the state.

    William L. Witt was pulled over on Route 48 in Carneys Point in December 2012 after he approached a police officer with his high beams on and “failed to dim” as he passed. After speaking with Witt, the officer concluded he was intoxicated, performed a field sobriety test and placed him under arrest.

    While searching the car for evidence of open container alcohol consumption, the officer found a handgun in the center console.

    Witt sought at trial to suppress the gun on the ground that police performed an unreasonable search in violation of the the state constitution, and a state appeals court panel found in May of last year the officer did not meet the “exigent circumstances” standard for warrantless searches spelled out in a 2009 decision by the Supreme Court.

    That decision, known as State v. Pena-Flores, found police must obtain a warrant to search a vehicle unless they have both probable cause to believe the vehicle contains evidence and can demonstrate “exigent circumstances” such as time constraints or safety concerns that would justify performing a warrantless search.

    The state Attorney General’s Office had argued the Pena-Flores decision was “unworkable” because of the difficulty of obtaining warrants on the fly and had led to “unintended negative consequences.”

    Justice Barry T. Albin, writing the majority decision, found the standard applied in the 2009 decision “does not provide greater liberty or security to New Jersey’s citizens and has placed on law enforcement unrealistic and impracticable burdens.”

    The court also found the 2009 standard had the unintended consequence of causing an “exponential increase in police-induced consent automobile searches,” suggesting that police officers may be pressuring motorists to volunteer for searches rather than take time to obtain a warrant.

    “The heavy reliance on consent searches is of great concern given the historical abuses associated with such searches and the potential for future abuses,” Albin wrote.

    Federal law allows for warrantless vehicle searches based on probable cause, and New Jersey’s two-pronged standard has long been considered added protection for motorists.

    Writing the dissent, Justice Jaynee LaVecchia called the decision “a retreat to the federal standard for warrantless searches of an automobile.”

    Source: N.J. Supreme Court expands police authority for warrantless car searches | NJ.com


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