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Posts Tagged ‘Fourth Amendment’

A Primer on Domestic Spying – LewRockwell

Posted by M. C. on February 13, 2020

Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or under Section 215, captures all the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?


“The Framers … conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.” — Justice Louis Brandeis (1856-1941)

While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.

The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizes the federal government to capture without a warrant all records of all people in America held by third parties.

Do we really want the federal government to spy without warrants? How can Congress, which has sworn to preserve, protect and defend the Constitution, legislate such a blatant violation of it? Here is the backstory.

After the Constitution was ratified in 1789, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Justice Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants and to require judicially authorized search warrants issued under narrow circumstances. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that colonists-turned-Americans had for general warrants.

A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British soldier or intelligence agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

Hence Madison’s language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized.

After 9/11, in the collective spirit of fear, timidity and subservience to the presidency, and in utter disregard for its members’ oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

Over the years, the definition of “financial institution” has been radically expanded by both legislation and presidential executive orders so as to include nearly every conceivable entity that has any records about any person in America — from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

At the same time that the Patriot Act was being expanded, the National Security Agency — America’s 60,000-person strong domestic spy apparatus — was not even pretending to follow legislation. We know from Edward Snowden’s revelations — which have never been disputed by the government — that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber optic cable. That includes every email, text message and piece of data — even what was deleted. This warrantless mass surveillance continues today unabated.

Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or under Section 215, captures all the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They rightly fear — they know — that all of this violates the Fourth Amendment. If their nefarious behavior, which we know they have used on the president of the United States and on the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

They have made up this argument out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

Has the government lost sight of our birthright? It is life, liberty and the pursuit of happiness — not to mention getting into Heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

Brandeis’ language about being let alone was written in 1928, in a dissent to a Supreme Court opinion that failed to recognize the right to privacy. Today, his dissent is the law of the land, but the feds ignore it. He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of intimate aspirations, none of which are the government’s business.

Why do we permit the government to assault our most basic freedoms, under the law or under the table?

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As Times Change, the FBI’s Snoopy and Heavy-Handed Ways Continue –

Posted by M. C. on November 9, 2019

“If the FBI is willing to target activist groups that do nothing more than feed our houseless communities, there is no limit to what political activities they will deem worthy of excessive investigation,” says the website of Portland Commissioner Jo Ann Hardesty.

“The FBI … has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups,” the Senate’s Church Committee complained in 1976.

Stand up for your rights and get branded.

The FBI is in the news a lot these days over its role in the investigation of alleged ties between Donald Trump’s successful 2016 presidential campaign and the Russian government. But long before Americans debated whether the federal law enforcement agency was a righteous tribune of the people or a meddling agent of the Deep State, the FBI was something else: a nosy and unaccountable domestic enforcement agency that, by rights, should send chills down the spines of people of all political persuasions—especially since the bureau’s heavy-handedness continues to this day.

The San Francisco Police Department (SFPD) pulled out of a local Joint Terrorism Task Force (JTTF) with the FBI in 2017. At the time, the move was widely portrayed as an effort to shield immigrants and the Muslim community from the Trump administration, and that certainly played a role. But internal FBI documents obtained by The Intercept show that there was more at stake.

City officers who participated in the JTTF were simultaneously subject to city ordinances and the feds’ Domestic Investigations and Operations Guide (DIOG), both of which are enforceable against violators. That caused serious problems when local rules protective of civil liberties ran up against federal regulations that sought to keep a tight cap on everything in sight.

“There are requirements set forth in SFPD General Order 8.10 which govern investigations into First Amendment Activities,” the FBI documents reveal. “Compliance with SFPD General Order 8.10 subjects SFPD FBI [task force officers] to possible criminal exposure for disseminating/disclosing FBI documents to include classified documents.”

Police officers failing to comply with San Francisco police rules could be disciplined or fired, the document continues. But compliance with those rules could get them criminally prosecuted by the feds.

Given the number of cases the JTTF took on that invoked First Amendment concerns, participating cops were stuck in a Catch 22, having to decide which jurisdiction’s rules to violate, and hoping for higher-ups to have mercy.

So, San Francisco pulled out of the JTTF, followed by Portland, Oregon, a year later, in moves largely portrayed as confrontations between sanctuary cities and a nativist administration. But, while Portland nodded toward current political conflicts over immigration in its announcement severing ties with its JTTF, it also added that “Freedom of Information Act requests filed by ACLU affiliates in 2004, 2005, and 2006 revealed that the JTTF collected information on peaceful political activity.”

“If the FBI is willing to target activist groups that do nothing more than feed our houseless communities, there is no limit to what political activities they will deem worthy of excessive investigation,” says the website of Portland Commissioner Jo Ann Hardesty.

With regard to San Francisco’s decision, “the issues raised by the white paper also precede the current president, reflecting the FBI’s post-9/11 transformation into a secretive domestic intelligence agency and the challenges that creates for municipal police departments eager to cooperate with the feds but less capable of shielding themselves from local accountability by invoking ‘national security’ claims,” according to The Intercept‘s Ryan Devereaux.

The conflicts extend beyond Portland and San Francisco.

“Clashes are erupting between local and federal officials over the hundreds of joint task forces that operate around the country,” notes The Marshall Project, which reports on the criminal justice system:

The problem, police officials say, is that local cops assigned to joint task forces are not bound by department rules, such as wearing body cameras, which the feds have prohibited. The FBI and U.S. Marshals allow the use of deadly force if a person poses an ‘imminent danger,’ using a definition that is less strict than many police departments’… Task-force members are also immune to civilian lawsuits in a way that regular officers are not.

Concerns about over-the-top FBI conduct and minimal accountability sound awfully familiar to anybody with some knowledge of history.

“The FBI … has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups,” the Senate’s Church Committee complained in 1976. “As intelligence operations developed … rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code.”

The post-9/11 environment, as The Intercept‘s Devereaux suggests, seems to have breathed new life into the FBI’s old ways when it comes to monitoring peaceful conduct and shielding itself from scrutiny and consequences. That’s true of the task forces, but also of modern electronic surveillance.

“A federal judge secretly ruled last year that [FBI] procedures for searching for Americans’ emails within a repository of intercepted messages that were gathered without a warrant violated Fourth Amendment privacy rights,” The New York Times reported last month.

The judge’s ruling—upheld by a three-judge appeals panel—required the FBI to distinguish between searches that sought information on Americans, and those that pertained to foreigners. He also told the FBI to document, in writing, how its search terms met the standard of being likely to return foreign intelligence information or criminal evidence—as opposed to a fishing expedition, presumably.

That would be a judge in the same Foreign Intelligence Surveillance Act court that approved FBI surveillance of one-time Trump aide Carter Page, infuriating the president’s supporters in the process and fueling current political controversy over the bureau. Page’s surveillance case might or might not have been justified, but it was just one among many.

“The idea of requiring agents to document their rationales for searching for an American’s information emerged from several recent episodes in which the Justice Department reported to the court that the F.B.I. had conducted improperly sweeping searches of the repository,” the Times added.

“Improperly sweeping searches” sounds an awful lot like the “excessively broad, ill-defined and open-ended investigations” the Church Committee hoped to curtail back in 1976. Despite the fond hopes of reformers of the past, the FBI continues to be intrusive and heavy-handed in its actions, and resistant to scrutiny and correction.

The political controversies of the moment will eventually pass, but they’re unlikely to sweep away concerns about the FBI. If history is any guide, the bureau will still be running amok years from now.

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What’s the Big Problem With Facial Recognition? | | Tenth Amendment Center Blog

Posted by M. C. on October 4, 2019


The Oakland City Council recently gave final approval to an ordinance banning facial recognition in that city. This is part of a broader movement at the state and local level to ban outright or at least limit this invasive surveillance technology.

So, what’s the big problem with facial recognition?


In the first place, it’s just not very accurate, especially when reading African American and other minority facial features. It gets it wrong a lot of the time.

This isn’t just theoretical musing. During a test run by the ACLU of Northern California, facial recognition misidentified 26 members of the California legislature as people in a database of arrest photos.

But as ACLU attorney Matt Cagle said, this isn’t a problem that can be fixed by tweaking an algorithm. There are more fundamental issues with facial recognition. Government use of facial recognition technology for identifying and tracking people en masse flies in the face of both the Fourth Amendment and constitutional provisions protecting privacy in every state constitution.

Berkeley, California, City Councilmember Kate Harrison is pushing for a facial recognition ban in her city. In her recommendation of the ordinance, she pointed out the inherent constitutional problem with facial recognition.

It eliminates the human and judicial element behind the existing warrant system by which governments must prove that planned surveillance is both constitutional and sufficiently narrow to protect targets’ and bystanders’ fundamental rights to privacy while also simultaneously providing the government with the ability to exercise its duties.

Facial recognition technology automates the search, seizure and analysis process that was heretofore pursued on a narrow basis through stringent constitutionally-established and human-centered oversight in the judiciary branch. Due to the inherent dragnet nature of facial recognition technology, governments cannot reasonably support by oath or affirmation the particular persons or things to be seized. The programmatic automation of surveillance fundamentally undermines the community’s liberty.

Facial recognition puts every person who crosses its path into a perpetual lineup without any probable cause. It tramples restrictions on government power intended to protect our right to privacy. It feeds into the broader federal surveillance state. And at its core, it does indeed fundamentally undermine liberty.

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More Spying and Lying – LewRockwell

Posted by M. C. on August 22, 2019


While most of us have been thinking about the end of summer and while the political class frets over the Democratic presidential debates and the aborted visit of two members of Congress to Israel, the Trump administration has quietly moved to extend and make permanent the government’s authority to spy on all persons in America.

The president, never at a loss for words, must have been asked by the intelligence community he once reviled not to address these matters in public.

These matters include the very means and the very secret court about which he complained loud and long during the Mueller investigation. Now, he wants to be able to unleash permanently on all of us the evils he claims were visited upon him by the Obama-era FBI and by his own FBI. What’s going on?

Here is the backstory.

After the lawlessness of Watergate had been exposed — a president spying on his political adversaries without warrants in the name of national security — Congress enacted in 1978 the Foreign Intelligence Surveillance Act. It prescribed a means for surveillance other than that which the Constitution requires.

The Fourth Amendment to the Constitution — written in the aftermath of British soldiers and agents using general warrants obtained from a secret court in London to spy on whomever in the colonies they wished and to seize whatever they found — was ratified as part of the Bill of Rights to limit the government’s ability to intrude upon the privacy of all persons, thereby prohibiting those procedures used by the British.

Thus, we have the constitutional requirements that no searches and seizures can occur without a warrant issued by a judge based on a showing, under oath, of probable cause of crime. The courts have uniformly characterized electronic surveillance as a search.

I am not addressing eyesight surveillance on a public street. I am addressing electronic surveillance wherever one is when one sends or receives digital communications. FISA is an unconstitutional congressional effort to lower the standards required by the Fourth Amendment from probable cause of crime to probable cause of foreign agency.

Can Congress do that? Can it change a provision of the Constitution? Of course not. If it could, we wouldn’t have a Constitution.

It gets worse.

The court established by FISA — that’s the same court that President Donald Trump asserts authorized spying on him in 2015 and 2016 — has morphed the requirement of probable cause of being a foreign agent to probable cause of communicating with a foreign person as the standard for authorizing surveillance.

What was initially aimed at foreign agents physically present in the United States has secretly become a means to spy on innocent Americans. In Trump’s case, the FISA court used the foreign and irrelevant communications of two part-time campaign workers to justify surveillance on the campaign…

The late Supreme Court Justice George Sutherland once wrote that we cannot pick and choose which parts of the Constitution to follow and which to ignore. If we could, the Constitution would be meaningless.

Did he foresee our present woes when he wrote, “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned”?

Is that where we are headed?

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Federal Judges Are Waging War on the Fourth Amendment | Mises Wire

Posted by M. C. on August 10, 2019

According to SCOTUS, it is more realistic for an untrained civilian to know their rights, which are apparently subject to constant change, than it is for professional police officers to inform drivers of their rights to refuse a search.

Cops and judges-their boss is the same and it is not you.

In 1984, as part of Ronald Reagan’s renewed war on drugs, the Drug Enforcement Administration launched Operation Pipeline. This program was inspired by the strategies employed by state troopers in New Mexico who, after pulling somebody over, asked specific questions designed to determine whether the driver might be a drug trafficker. Combined with the financial incentives of federal grants for drug enforcement and civil asset forfeiture laws, state and local police had strong new incentives to find reasons to stop vehicles and search for drugs. Operation Pipeline was meant, in part, to train officers how to legally harass drivers.

The problem, of course, was the pesky Fourth Amendment, which prohibited warrantless searches without probable cause. The “probable cause” requirement for warrantless searches is conspicuously open to interpretation, but it imposed important constraints on police harassment by placing the burden of proof on the officer to produce specific facts to justify his suspicion. In 1968, however, the Supreme Court granted the first exemption to this constraint by establishing the “stop-and-frisk” rule. In Terry v. Ohio, the Court ruled that as long as a “reasonably prudent man” would believe that a suspect might be armed, the burden of proof to show probable cause is unnecessary.

The ruling was justified out of concern for officer safety, but it paved the way for Operation Pipeline sixteen years later. The shift from “probable cause” to “reasonable suspicion,” a criterion officers could more easily meet in court, was a sufficient precedent for strategically designed traffic-stop questions to establish legally valid suspicion for vehicle drug searches. Theoretically, the courts could still strike the practice down as unconstitutional, but the Terry case proved this unlikely.

Still, there were many constitutional questions for the Supreme Court to work out. Unsurprisingly, the court served as “loyal foot soldiers” in the Drug war, as Justice Stevens put it, by sanctioning virtually every tactic the police invented, no matter how egregiously it violated civil liberties.

The first important ruling on roadway privacy came in 1991. In Florida v. Bostick, two officers boarded a Greyhound bus in Fort Lauderdale and woke up a sleeping passenger named Terrance Bostick. When the officers asked permission to search Bostick’s bags, he complied, despite possessing a pound of cocaine. However, when Bostick went to court, his attorney’s argued that the police officers had neither probable cause nor reasonable suspicion to justify the search of Bostick’s luggage, and therefore the cocaine should be inadmissible in court. Florida’s State Supreme Court ruled in Bostick’s favor, claiming that bus searches are inherently unconstitutional because the police did not allow passengers to leave the bus during the raid. The case went to the US Supreme Court who reversed the decision, claiming that even though the officers were effectively holding Bostick and other passengers hostage, “a reasonable person” would have felt perfectly comfortable denying armed police officers the right to search his luggage.

With this ruling, the loose “reasonable suspicion” requirement expanded officer prerogative in any situation in which they could show that their searches were voluntary. This changed the way officers were trained to give orders. Like contestants on Jeopardy, officers were taught to give their orders in the form of a question— “Will you put your hands against the wall while we search you?” for example. The courts made this easier by interpreting silence as consent, establishing “consent searches” as standard and legal police practices…

Even after the Whren ruling, civilians still theoretically have the right to refuse searches, based on the absurd notion that a “reasonable person” would feel free to deny an officer’s request, as established by Bostick. A few months after Whren, though, the Ohio court implicitly rejected the Bostick ruling. After Robert Robinette was pulled over for speeding, he consented to a search of his vehicle— illustrating the tactics of both pretext stops and consent searches in the Drug War. When officers discovered a small amount of cannabis and a single amphetamine pill, they arrested Robinette. Because Ohio v. Robinette reached the state court prior to the final Whren ruling, the pretext stop controversy was still an open question, which made the case viable. But what made the Robinette case important was that the Ohio court pushed back against the Bostick argument by stipulating that for a reasonable person to feel comfortable denying consent to a search, the officers had to inform the driver that they had the right to refuse. It was this stipulation that took Robinette to the higher court, at which point SCOTUS overturned the ruling for being “unrealistic.”

According to SCOTUS, it is more realistic for an untrained civilian to know their rights, which are apparently subject to constant change, than it is for professional police officers to inform drivers of their rights to refuse a search. Taking these expectations to a new extreme, the 2001 case Atwater v. Lago Vista ruled that officers had the legal right to arrest drivers who violated misdemeanor traffic stops, even if the punishment for the violation was a fine, rather than jail time. With this ruling, the court’s imaginary “reasonable person” would presumably know that if they refused to consent to a drug search, they faced the risk of being handcuffed for whatever petty infraction got them pulled over. None of this matters in the twisted logic of the criminal justice system, of course.

To complete the remarkable expansion of highway monitoring prerogatives, the 2004 case Illinois v Caballes ruled that it did not legally constitute a search, regardless of consent or pretext, for officers to walk drug-sniffing dogs around a person’s vehicle. Given the precedents established in the previous cases, it may seem that this ruling added no discretionary power the police did not already possess, but this is not quite true. Checkpoints are usually justified as searching for drunk drivers, but they have also been established to randomly verify that drivers have valid licenses, vehicle registrations, and car insurance. In some cases, as James Bovard has noted, the police had no qualms admitting that the true reason for the checkpoints was random drug searches. But sobriety checkpoints fail to meet even the loose requirements of pretext stops, and every now and then, police run into civilians who actually know their rights and refuse to consent to searches. In the Cabellas ruling, the court claimed that drug dogs do not violate the Fourth Amendment, and if the dog signals the presence of drugs, the officers have probable cause to search the vehicle without consent. Even after a recent case has demonstrated that drug-sniffing dogs have a roughly fifty percent accuracy rate, the courts have continued to uphold the practice.

The result is that the police now enjoy unlimited reign in harassing, searching, and arresting drivers. Motivated by civil forfeiture laws that empower them to confiscate civilian property without charging the victim with a crime, the police have institutionalized the practice of conducting mass road stops as means of searching civilians for property to confiscate (a practice recently curtailed by a SCOTUS ruling, but not eliminated). Highway robbery has been legally sanctioned and encouraged by all branches of the federal government, so that state and local police forces can only accurately be understood is roadway pirates.

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The Rutherford Institute :: What Country Is This? Forced Blood Draws, Cavity Searches and Colonoscopies

Posted by M. C. on September 6, 2017

How is Facebook like a cavity search?

“The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.”—Herman Schwartz, The Nation

Our freedoms—especially the Fourth Amendment—are being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, shoot, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation. Read the rest of this entry »

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Patriot Act-When to say NO to searches.

Posted by M. C. on September 1, 2011

I urge you to read this Bill Rounds post as a corollary to the patriot act comment in my armored vehicle posting.  My next task is to determine where one can NOT video a police action and which states are “No Name”.  Any help out there?

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