At some point someone will test this question: Does the state have the right to information kept in one's home, without a warrant or probable cause that a crime HAS BEEN committed? Whether or not folks think it is logical for the state to have the information, the question of "beyond the front door" and 4th Amendment and privacy issues scream in these laws.
11-2-2009 Wisconsin:
MADISON (WPR) Convicted sex offenders would have to register any personal e-mail addresses or websites with the state under a plan that passed the Assembly Thursday (10/29).
The plan would cover everything from social networking sites like Twitter and Facebook, to user accounts on Internet gaming networks like Xbox Live.
Fort Atkinson Democratic Sponsor Andy Jorgenson says the proposal will help the Department of Corrections keep an eye on offenders, and keep kids safe. He says the bill was written broadly to keep up with technology. Jorgenson says when he started crafting the bill, Twitter didn’t exist, but is now a major social networking tool.
The plan passed on a unanimous vote. It now heads to the Senate, which passed a similar bill last session. ..Source.. by Shawn Johnson, Wisconsin Public Radio
November 2, 2009
WI- Wisconsin sex offender e-registry passes Assembly
July 1, 2009
OH- "[P]olice may not stop an individual for the sole purpose of compelling him to identify himself"
7-1-2009 Ohio:
"[P]olice may not stop an individual for the sole purpose of compelling him to identify himself." State v. Holly, 2009 Ohio 3081, 2009 Ohio App. LEXIS 2604 (8th Dist. June 25, 2009):
[*P15] Applying these principles, we find that the investigatory stop of Holly was unlawful. Despite the State's argument that Holly was stopped because the police had a reasonable suspicion that he was engaged in drug activity, Detective Mitchell's testimony was clear: the only reason Holly was stopped was to determine his identity. In America, however, the police may not stop an individual for the sole purpose of compelling him to identify himself.
Defendant 17 year old voluntarily accompanied three detectives to the police station for questioning. The court rejects that this 17 year old would have thought that she had to go with them. State v. Rogers, 2009 La. App. LEXIS 1308 (5th Cir. June 23, 2009).* ..See 4th Amendment blog for exceptions.. by 4th Amendment blog
March 5, 2009
OH- Sex offender rules House holds first hearing on two bills
3-5-2009 Ohio:
COLUMBUS -- Two bills that would increase penalties against sex offenders who live or enter areas near schools and other areas frequented by children had their first hearing in the Ohio House on Wednesday.
House Bill 11 would establish criminal penalties for individuals who live too close to schools, recreation centers and would establish a means for courts to remove those individuals from their residences.
House Bill 13 would prohibit certain sex offenders from being on school, pre-school or day-care center properties and would establish criminal penalties for those who break the law.
The Democratic sponsors of both bills spoke before the House's criminal justice committee Wednesday.
Rep. Tracy Maxwell Heard, from the Columbus area, offered HB 11 after hearing from constituents about the disproportionate number of known offenders who were allowed to live near schools.
Removing them from those premises requires a lengthy civil process, she said.
"(T)he violation itself is merely an infraction of a civil statute and therefore it requires a suit be brought, court dates, etc., and law enforcement has very little leverage to actually make a violator move until such time as a case is determined and the offender is deemed in violation," Heard said.
HB 13 is aimed at keeping sex offenders who have preyed on children away from schools, said Rep. Jennifer Garrison, a Democrat from Marietta and one of the primary sponsors of the legislation.
Offenders would be banned from school properties; any found guilty of breaking the law would face six-12 months in jail.
According to Garrison's testimony, "There are over 14,000 Tier III sex offenders residing in Ohio, including those currently serving sentences. And it is unconscionable that our children currently have no protection in their schools from those who would do them harm." ..News Source.. by Marc Kovac
October 1, 2008
DC- Congress passes Schumer and McCain's S-431 Amended bill, obviously a political campaign move.
10-1-2008 Washington DC:
Congress, again in the dead of the night and without notifying the public, has passed Sen. Schumer and McCain's S-431 `Keeping the Internet Devoid of Sexual Predators Act of 2008' or the `KIDS Act of 2008', it has two titles obviously for political purposes.
It appears that Rep. Conyers was behind getting it through the House and he did get it amended to include some VERY STRICT PRIVACY provisions on the information submitted by the registrants.
Registrant Internet information is to be in a SECURED data base, but will be available to APPROVED Social Networking websites. Such sites must keep the information secured and are not allowed to make anything public. However, with that said, there are no penalties for a social networking website if they violate the privacy requirements, excepting MAYBE losing their ability to access the SECURED data base, but that is just a logical guess since it is not written into the bill.
Additionally, the definition of "social networking website" is now, any website that permits "social interaction" which appears to be anything on the Internet. This definition is clearly overbroad.
While this bill does not say to social networking websites, remove any accounts of registrants, that is the most logical result as was proven when MySpace removed accounts of all known sex offenders last year.
The total purpose of this bill is to stem the political discussions which registrants and their families have on the Internet, necessary because they no longer have any political representation in Congress. This bill is passed under the pretext of "saving a child from Internet predators" as lawmakers call everyone who is registered in a state or federal registry.
There is no doubt in this writer's mind that this bill violates, to the nth degree, US Supreme court case permitting anonymous free speech, first amendment rights of every US citizen.
Finally, as to registrants, forcing them to provide Internet ID's of any kind (information which is only in their personal effects within their homes) is a violation of the 4th Amendment, again, in this writer's opinion.
More to follow...
eAdvocate
August 13, 2008
EDITORIAL- Search and Replace
8-13-2008 National:
Congress needs to set the rules for how border agents can delve into travelers' laptops.
WHEN ATTEMPTING to enter or reenter the United States, noncitizens and citizens alike have become accustomed to all manner of searches. Luggage is examined at international airports by agents looking for illegal drugs, smuggled fruit, explosive devices and other forms of contraband. At the border, agents routinely search vehicles even when they don't have reasonable suspicion of wrongdoing. The Supreme Court has upheld such searches and unanimously concluded that the government's "interest in preventing the entry of unwanted persons and effects is at its zenith at the international border." Border searches, the justices have said, "are reasonable simply by virtue of the fact that they occur at the border."
Recently, the Department of Homeland Security disclosed that it is using the same broad authority to search travelers' laptop computers and other electronic devices. This may very well be legal under existing laws; two federal appeals courts have concluded as much. But it should not remain U.S. policy.
Laptops have become the repository of people's most private thoughts, their most sensitive financial, medical and professional documents. Unlike a hard-copy book or notebook, the entire contents of a laptop -- including a history of Web sites visited -- can be copied with a push of a button. These copies can then be disseminated to various government agencies. This capacity to store a vast array of information opens up possibilities for mischief that do not exist with more traditional receptacles of information; it also makes laptops potentially invaluable tools for law enforcement.
The Department of Homeland Security argues that it has the right to search and seize a laptop without a warrant or even suspicion. Yet it concedes that it is impossible for it to conduct searches on every laptop that enters the country. As a result, the department says it already applies a "reasonable suspicion" standard to determine which laptops to search. For security reasons, the department declines to say what triggers such "reasonable suspicion." But the standard is generally so low that it can be triggered by a traveler's appearing nervous or giving inconsistent answers to routine questions, such as how long and where he or she will be staying while in the country.
The reasonable-suspicion standard should be written into law. Legislation should also specify that owners of laptops must be present while an agent conducts a preliminary search. Line agents should be required to get approval from a supervisor before copying files from or seizing a laptop and must be able to articulate, at that point, that there is probable cause to believe the laptop owner may have violated U.S. law.
These reasonable compromises should in no way impede the government's ability to search laptops for such things as child pornography or terrorist plans. But they would go a long way toward giving the average, innocent traveler some protection against frivolous or mischievous intrusions. ..News Source.. by Washington Post
August 12, 2008
MI- Police: Porn pics seized not of local kids
I'm wondering if there is a 4th Amendment violation here. Generally, if one person in a household refuses to give consent to a search (as he did) then later the other household members cannot override that refusal, as was done here. This evidence may very well get thrown out.
Further, did they find child porn? If so, why make mention of the family photos, and infer others may see them too. What are they eluding too?
8-12-2008 Michigan:
Thousands of pictures and videos of child pornography seized from an Emmett Township man last week are not of local children, police said Monday.
Lt. Tony Geigle and Officer Seth Graves of the Emmett Township Department of Public Safety said their investigation shows the pictures were downloaded from the Internet and not produced locally.
"But what I have seen on this computer is some of the very worst I have ever seen," Graves said. "It involves very young children. But so far it is nothing he produced."
Erin W. Merritt, 33, was arraigned Thursday on six charges of possession of child pornography and faces up to four years in prison if he is convicted. He is being held on $250,000 bond and a preliminary examination is scheduled for Aug. 20 in Calhoun County District Court.
Emmett Township police began their investigation months ago, Geigle said, after an anonymous tip was sent to the department through the National Center for Missing and Exploited Children in Alexandria, Va.
Geigle said the tip encouraged officers to check Merritt because he was believed to have child pornography and had several young children in his Emmett Township home.
But police didn't have enough evidence for a search warrant and when they went to the home, Merritt refused them access to his computer, Geigle said, and the investigation stalled.
In July, Geigle and Graves, assigned to a newly formed CyberCrimes and Computer Forensics Unit at the department, attended an FBI seminar on investigating child pornography and learned of new software that can be used to determine quickly if images are stored on a computer.
A complete forensic investigation of a computer can be time consuming, Graves said, but the software allows an officer to check a computer quickly and without altering any of the data.
Graves hadn't forgotten about the investigation at the Merritt home and told Geigle on the trip back that the software might help them.
That was a Wednesday, Graves said, and on Thursday he went to the home and convinced another person who lives in the house and had access to the computer to allow him to search.
Graves said he quickly found images on the computer and obtained a search warrant to seize the machine and begin a through search, which is continuing this week.
Some of the pornography was obtained by file sharing, called peer-to-peer networking, and other pictures were captured from personal blogs.
Graves said search engines capable of finding pictures of children on those blogs are used by people looking for specific types of images.
Many of the pictures found on Merritt's computer are family photos of children posted on personal Web sites.
"It may be an innocent thing to put up pictures for family, but they may not be the only ones seeing them," Graves said.
Geigle said the investigation is continuing to determine if Merritt had sexual contact with any children. ..News Source.. by Trace Christenson
July 22, 2008
The Limits of Fourth Amendment Injunctions
2008
Abstract:
When is injunctive relief appropriate in Fourth Amendment cases? Should courts feel free to craft wide-ranging injunctive relief to avoid Fourth Amendment defects? Or is there something wrong, either as a matter of doctrine or policy, with crafting broad injunctions in Fourth Amendment cases?
This brief essay will suggest answers to these questions. The first part argues that as a matter of history and practice, injunctive relief has been used narrowly as an on-off switch for carefully-defined practices. The most significant doctrinal hook for this limitation is Article III standing: Injunctive relief requires a real and immediate threat of future injury to establish a case or controversy. The precise meaning of that requirement remains murky, but it arguably means that a plaintiff must show a real and immediate threat of a highly specific set of facts occurring.
The second part argues that as a matter of normative policy, any ambiguity in the current state of the law should be resolved against imposing broad Fourth Amendment injunctions. Crafting broad injunctive relief forces courts to assume duties that they are not competent to handle. Fourth Amendment doctrine is tremendously fact-specific: every fact pattern is different, and even the exceptions to the exceptions have their own exceptions. Courts are poorly suited to design broad injunctive relief in this setting. Courts should therefore decline to craft Fourth Amendment injunctions covering classes of facts instead of individual facts. ..Source.. by ORIN S. KERR, George Washington University - Law School
July 11, 2008
The 'Lectric Law Library's Legal Lexicon On * FOURTH AMENDMENT *
U.S. Constitution:
FOURTH AMENDMENT - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' ...Complete Discussion w/Case Law...
Another site with many cases:
U.S. Supreme Court:
Katz v. United States, 389 U.S. 347 (1967)
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Indiana convicted sex offender computer search law unconstitutional under Fourth Amendment (excellent discussion)
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Reasonable expectation of privacy exists in e-mail:
STEVEN WARSHAK, Plaintiff-Appellee, -v- UNITED STATES OF AMERICA,
The district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and we agree that the injunctive relief it crafted was largely appropriate, although we find necessary one modification. On remand, the preliminary injunction should be modified to prohibit the United States from seizing the contents of a personal e-mail account maintained by an ISP in the name of any resident of the Southern District of Ohio, pursuant to a court order issued under 18 U.S.C. § 2703(d), without either (1) providing the relevant account holder or subscriber prior notice and an opportunity to be heard, or (2) making a fact-specific showing that the account holder maintained no expectation of privacy with respect to the ISP, in which case only the ISP need be provided prior notice and an opportunity to be heard.
Privacy at Risk: The New Government Surveillance and the Fourth Amendment
2007
Abstract:
This book focuses on a significant new development in the government's surveillance efforts: the use of sophisticated technology to observe our daily activities (physical surveillance) and to peruse records of those activities (transaction surveillance). Wiretapping, bugging, and other forms of communications surveillance are clearly regulated by the Constitution, more specifically the Fourth Amendment's prohibition on unreasonable searches and seizures.
In contrast, many types of physical and transaction surveillance are not formally recognized as searches that implicate the Fourth Amendment. As a result, much of this surveillance, although a search in effect, is not seriously regulated by law. This book is meant to prod legislatures and courts into more meaningful constraints on physical and transaction surveillance.
The principal means of doing so is through a rejuvenation of the Fourth Amendment's reasonableness inquiry, which requires justification proportionate to the intrusion visited by the government's action and ex ante review of the contemplated intrusion in non-emergency situations.
The book makes use of Fourth Amendment doctrine, sociological literature on the effects of surveillance and original empirical research to make its case. The link is to an excerpt from Chapter One which provides a more detailed description of the book's chapters. ..The Rest of the Paper.. by CHRISTOPHER SLOBOGIN, University of Florida - Levin College of Law
The Effects of the Fourth Amendment: A Strategic Model of Crime and Search
2005
Abstract:
The Fourth Amendment requires police to have probable cause before searching people or their property in criminal investigations. In practice, it is enforced through the exclusionary rule: if police search without probable cause, any evidence found in the search may be excluded from court.
We analyze the effects of this rule on equilibrium elements of social welfare in a strategic model of crime and search. The rule always increases crime. But it has two opposing effects on police searches. It directly reduces them by reducing the chances that they lead to successful conviction, but it also indirectly increases them by increasing crime. If the indirect effect dominates, the rule actually increases searches, and has an ambiguous effect on wrongful searches. If the direct effect dominates, it reduces searches and wrongful searches.
In contrast, direct police accountability for wrongful searches unambiguously reduces searches and wrongful searches. ..The Rest of the Paper.. by HUGO M. MIALON, Emory University - Department of Economics -and- SUE H. MIALON, Emory University; University of North Dakota
June 18, 2008
OR- County sued for strip-searching minors
6-18-2008 Oregon:
MCMINNVILLE, Ore., June 18 (UPI) -- Two Oregon boys are suing Yamhill County for subjecting them to unnecessary strip-searches while they were in jail on sex abuse charges.
McMinnville, Ore., residents, Cory Mashburn and Ryan Cornelison, both 14, and four other plaintiffs are part of a federal class-action lawsuit filed last week which claims county officials frequently performed unnecessary strip and body-cavity searches on minors, the (Portland) Oregonian reported Wednesday.
Mashburn and Cornelison last year faced felony sex abuse charges for slapping girls' bottoms at school. The charges were eventually dropped, the report said.
"They have been and continue to violate minors' Fourth Amendment rights protecting them against unreasonable searches and seizures," said Leonard Berman, a Portland, Ore., attorney who took the case.
The suit asks for officials to stop such searches, an undetermined amount of compensation for damages and $2 million in punitive damages, the newspaper said. ..News Source.. by UPI.com
June 13, 2008
EFF, others fighting privacy-invading border laptop searches
6-13-2008 National:
The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) are asking the Ninth Circuit Court of Appeals to review a decision that allows border patrols to search US citizens' laptops for no reason. The two groups filed an amicus brief (PDF) with the Court, asking it to rehear the case and, hopefully, reverse the decision. They argued that the decision is a violation of citizens' Fourth Amendment rights that protect them from unreasonable search and seizure.
The case goes back to 2005, when a US citizen named Michael Arnold (US -v- Arnold) returned to the US from the Philippines. A Customs and Border Patrol agent asked Arnold to fire up his laptop and browsed through two folders on the machine's desktop, labeled "Kodak Pictures" and "Kodak Memories." After finding a photo that "depicted two nude women," the search continued, turning up what the agent believed may have been child pornography. Arnold's computer was then seized and he was arrested.
In the resulting court case, Arnold argued that the search was unreasonable and a violation of his Fourth Amendment rights. Arnold claimed that a laptop was more like "home" and "the human mind" than a typical closed container and that searching it required a reason. A district court agreed that Arnold's argument that a laptop was different from normal closed containers like luggage, which are routinely examined by border agents without particular cause.
A three-judge panel from the Ninth Circuit Court ruled on an appeal of the case in April of this year, however, and overturned the district court's decision. The panel said that border agents are free to routinely search citizens' laptops and other electronic devices because they already have wide latitude to search suitcases, purses, wallets, and other documentation without reasonable suspicion. Even if they don't see anything of interest, they can still simply search and confiscate your laptop and other electronic gadgets like external hard drives, phones, and PDAs, simply because they feel like it, and all in the name of national security.
The EFF and ACTE now argue that the Court's decision essentially renders useless the Fourth Amendment and puts citizens' privacy and identities at risk, because border patrols can confiscate laptops and make full copies of their contents. As anyone traveling with a laptop knows, our machines can contain personal and professional communications, banking information, legal information, tax documents, photos, (in the case of journalists) communications with confidential sources, and more—all of which can simply be copied over to a government computer and used however the government pleases. "[T]hese random searches give businesses and individuals a reason not to travel across US borders to conduct business, and they force businesses to expend significant resources protecting confidential information," reads the brief.
The two groups argue that, because of the volume of information stored on a laptop, the level of privacy invasion at a border search is "enormous," not to mention that computers often contain information that users may not know about or have tried to erase. Basically, the EFF and ACTE say that the information contained within doesn't quite compare to rifling through the selection of N'Sync bobblehead dolls that I voluntarily packed away in my suitcase, or the pocket change rolling around at the bottom of my bag. Embarrassing, perhaps, but not a clear and open window directly into every aspect of my life—even the parts I've tried to erase.
"[T]he panel decision failed to appreciate the constitutional concerns raised when border agents randomly search and seize laptop computers from international travelers," conclude the EFF and ACTE. They ask that the Court require only reasonable suspicion of a crime before border agents may search the contents of someone's computer, and expect a decision from the Court on whether to rehear the case within the next few months. ..News Source.. by Jacqui Cheng
March 13, 2008
VA- Should The Police Be Allowed To Attach A GPS Tracking Device To Your Car Without A Warrant ?
3-13-2008 Virginia:
The Liberty Papers blog has quite an indepth discussion on this question, here are the facts of the case:
When Fairfax County police were trying to catch a man last month who had molested 11 women, they examined the Virginia sex offender registry and found a possible suspect. They looked at his background, which included a series of similar assaults, and his residence, which was not far from where the attacks were occurring.
Then, to try to catch him in the act, police slipped a small Global Positioning System device inside the bumper of the van driven by the suspect and began tracking him — without a search warrant and without consulting a prosecutor.
The tactic, officers say, was an almost instant success. The GPS device placed the van driven by David L. Foltz Jr., 40, in the vicinity of a sexual assault Feb. 5. And when officers began surveilling Foltz the next day, a Fairfax detective saw him drag a woman into a dark area in Falls Church and attack her. The officer rescued the woman and arrested Foltz.
Foltz’s attorney, Chris Leibig, said yesterday in Falls Church General District Court that placing the tracking device on the vehicle was a violation of Foltz’s protection against unreasonable search and seizure. Arlington County General District Court Judge Richard J. McCue disagreed, denying Leibig’s motion to suppress police testimony about events that occurred after the device was placed on Foltz’s van.
In the preliminary hearing that followed, a 46-year-old Falls Church woman testified that she was grabbed from behind and pulled into a dark area. Detective Matthew Charron said he saw the attack and knocked Foltz off the woman. McCue certified Foltz’s charges of abduction with intent to defile and sexual battery for the Arlington grand jury, which meets next week.
Foltz has not been charged in any of the 11 other similar assaults that have occurred in Fairfax and Alexandria, but police said no similar attacks have happened since he was arrested.
CLICK for the rest of the discussion. This is clearly worth the time to review if the 4th amendment interests you.
