Oregon Federal Defender Search and Seizure Update

Every year the Oregon Federal Public Defender publishes a search and seizure update. The free download, available here, is a free fifty-two page summary of federal search and seizure law. A great place to get your research started.

Covert FBI Power to Obtain Phone Data Faces Rare Test

The Wall Street Journal:

Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.

The U.S. Department of Justice fired back with a serious accusation. It filed a civil complaint claiming that the company, by not handing over its files, was interfering "with the United States' sovereign interests" in national security.

The legal clash represents a rare and significant test of an investigative tool strengthened by the USA Patriot Act, the counterterrorism law enacted after the attacks of Sept. 11, 2001.

The case is shrouded in secrecy. The person at the company who received the government's request—known as a "national security letter," or NSL—is legally barred from acknowledging the case, or even the letter's existence, to almost anyone but company lawyers.

"This is the most important national-security-letter case" in years, said Stephen Vladeck, a professor and expert on terrorism law at the American University Washington College of Law. "It raises a question Congress has been trying to answer: How do you protect the First Amendment rights of an NSL recipient at the same time as you protect the government's interest in secrecy?"

The confidentiality requirements make it impossible to definitively identify the company fighting the case. Its name and other identifying details have been redacted in court documents obtained by The Wall Street Journal.

The phone company's lawyer declined to name his client or respond to questions about its identity.

There are thousands of telecom companies in the U.S. However, the court papers offer clues that can be used to narrow down the list. The Journal cross-referenced the court papers against corporate websites and Federal Communications Commission records of telecom firms, and identified five firms that appeared to be possible matches with the company described in the case.

Four of the five companies denied any involvement in the case and declined to be interviewed about national security letters. At the fifth company, a top executive declined to confirm or deny, either on or off the record, whether his firm had received an NSL or is involved in the case.

That company, Working Assets Inc., runs a San Francisco-based telecom subsidiary called Credo, and uses some of its revenue to support liberal causes. The chief executive of Credo, Michael Kieschnick, offered his firm's view, in general terms, of these types of government requests. "There is a tension between privacy and the legitimate security needs of the country," he said. "We think it is best to resolve this through grand jury or judicial oversight."

Unlike search warrants, NSLs don't require a judge's oversight.

National security letters, which date back to the 1980s, have become more common since the passage of the Patriot Act, which expanded the government's ability to use them to collect information about people. As long as the head of an FBI field office certifies that the records would be relevant to a counterterrorism investigation, the bureau can send an NSL request without the backing of a judge or grand jury.

Full article can be found here.

NACDL Updated Fourth Amendment Resource

NACDL (National Association of Criminal Defense Lawyers) has announced an update to their Fourth Amendment Page (here). The Fourth Amendment page now has topics broken up into Fourth Amendment Reports, Fourth Amendment Amicus Briefs, Fourth Amendment Advocacy Letters and Other Fourth Amendment Resources. In addition, the page has special coverage on topics such as GPS tracking, cellphone tracking, and government use of drones. It is a good place to start when dealing with search and seizure issues.

Ninth Circuit Reconsidering Laptop Border Search Case

The Ninth Circuit Court of Appeals heard oral argument last week en bancin United States v. Cotterman. A Ninth Circuit panel ruled in favor of the Government in 2011 reported at 637 F.3d 1068 (2011). The facts involved a search of a laptop at a border: the search began at the border and ended two days later at a government forensic laboratory located 170 miles away from the border. The panel of the Ninth Circuit upheld the warrantless search as a proper border search. NACDL and the Electronic Frontier Foundation both authored amicus briefs for reconsideration with the full court. The argument (available here) was heard last week and an opinion should be forthcoming. The argument presented en banc entailed that suspicionless, indefinite seizure of an individual’s laptop at the border raises constitutional concerns, and the suspicionless forensic search was outside the scope of a permissible investigatory detention and is abhorrent to the Fourth Amendment.

Stop "Stop and Frisk"

The New York Civil Liberties Union in conjunction with The Bronx Defenders filed a civil lawsuit in April of this year on behalf of 13 plaintiffs challenging New York's "Clean Halls" program. According to the complaint, thousands of residents in buildings enrolled in the Clean Halls program are subject to being stopped and illegally ticketed or arrested for trespassing in their own buildings if they fail to produce identification when they take out the garbage, check the mail, duck out to the store for a quart of milk. Young people growing up in these buildings, lawyers say, are routinely searched without legal cause and detained. The lawsuit, which charges the city with violating the Fourth Amendment and the Federal Fair Housing Act, is similar to one filed two years ago against the New York Police Department and the city’s public housing agency, which is alleged to have employed a similar patrol system. The New York Timesran a story on the lawsuit and the program. The Bronx Defenders are offering a "Stop & Frisk" T-shirt to raise money for the lawsuit as well as to raise awareness into this unconstitutional practice. You can get a t-shirt and support a good cause at the same time-always a win win. On June 7th, the New York Civil Liberties Union created a "Stop and Frisk" app that allows users to quickly record and report "stop and frisk" incidents. The NYPD were critical of the app, stating that it could put users in danger. A video demonstration of the app is available here and the app's functions are described below:

A spokesperson for the NYCLU, Jason Javier, described a stop and frisk incident. "As it's happening," he said in a PIX11 interview, "You're feeling defeseless, and even as it doesn't happen, it makes you feel it could happen." That sort of anxiety and frustration is what motivated software designer Jason Van Anden. "I believe in the power of technology to effect positive change," he said at a newsconference hosted by the NYCLU on Wednesday. He said his belief led him to create the Stop and Frisk app for Android smartphones. An iPhone app is not yet available, but is expected to be released next month. The app has three main functions: to record, listen and report a stop and frisk incident to the NYCLU. "The app allows you to record a stop-and-frisk as it's happening," Javier said about the record function. The listen function allows an app user to listen to any other stop and frisk incidents in the vicinity near the user. "This is especially helpful for community groups that monitor police activity," an NYCLU spokesperson says on the organization's website, http://www.nyclu.org/app, which is where the app can be downloaded. The report function leads the app user to a questionnaire with a series of questions pertaining to a stop and frisk the user may have just observed, including asking about the race and gender of the person who was stopped, and the race and gender of the officers involved. It also asks, among other questions, if force was used in the stop and frisk encounter. The user then sends the completed questionnaire to the NYCLU.

Inside the Fishbowl

I have worried a good deal about that fish bowl over the years, and it seems pretty clear that it’s getting smaller, and its walls are getting more transparent. To give just one example, the other day one of my sons sent me a link to a satellite picture of my house from Google Maps. You could not only see the house in pretty clear detail, but you could see who was home, from the two cars in the yard—my son’s blue Subaru and my brother-in-law’s gray Avalanche. I was very happy that I hadn’t been taking one of my famous nude sun-baths on my patio.

This excerpt appeared in the Stanford Online Law Review in an article entitled, "The Dead Past" written by Judge Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. (64 Stan. L. Rev. Online 117). In the article, Chief Judge Kozinski discusses some of the recent technology related decisions related to GPS monitoring and privacy in the digital age. The article focuses on the intersection of law and technology: "And this brings into focus a key issue in the law pertaining to privacy: Not everything an individual wishes to keep private is legally protected as such. The law, and particularly the Fourth Amendment, only protects those items as to which an individual has a legitimate expectation of privacy." Chief Judge Kozinski famously dissented in the denial of an en banc review last year in United States v. Pineda-Moreno, pointing out the slow erosion of the Fourth Amendment and privacy:

Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.

Chief Judge Kozinski eloquently expounds on the law and privacy themes in "The Dead Past", concluding that the fishbowl continues to be constructed by our own hands. (full article here).

FBI Stopped Using Over 3,000 GPS Trackers After Supreme Court Ruling

The Supreme Court’s recent ruling in United States v. Jones overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.

Last Friday during a conference held at the University of San Francisco entitled "Big Brother in the 21st Century" USDOJ Mr. Weissmann said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use. Hmmm.

These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law. Of course, the FBI may still have some of the data and intelligence already accumulated prior to shutting off the device....

Fourth Amendment is Back: Justices Hold 9/0 that GPS Tracking Violates Fourth Amendment

The U.S. Supreme Court issued an opinion this morning in United States v. Jones upholding the suppression of evidence obtained by police using GPS tracking technology. The Supreme Court, in a 9/0 decision, held that the placing and monitoring of an individual's movements through GPS tracking is a search within the meaning of the Fourth Amendment.

The case stems from the conviction of Antoine Jones, a Washington D.C. nightclub owner who was suspected of drug dealing. Police had obtained a warrant to place a GPS device on Jones's car but they did not remove it when the warrant expired. They reinstalled the device and subsequently tracked Jones's movements for 28 days whereever his car went. Police used the GPS device to track Jones to a stash house, where they found cocaine, weapons and drug paraphernalia. He was convicted of conspiracy to distribute cocaine and sentenced to life in prison. The Supreme Court held that such an electronic search was a search within the meaning of the Fourth Amendment. The Court did not consider whether the search was "reasonable" under the Fourth Amendment because the Government did not raise that below. Justice Antonin Scalia, writing for the Court, stated:

We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'"

"The government physically occupied private property for the purpose of obtaining information," Scalia said. "By attaching the device to the Jeep, officers encroached on a protected area."

Fourth Amendment Future: Virtual Searches

Susan Brenner, a law professor, has written a law review to be published later this year. The abstract:

This article examines the 4th Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.

The text of the full article is available here. The topic raises interesting and alarming questions about the future of the Fourth Amendment in light of the information age in which we now live.

New Report from ACLU on "Sneak and Peek" Warrants Permitted by Patriot Act

The ACLU reports that between October 1, 2009 and September 30, 2010 federal judges permitted government "sneak and peak" warrants permitted by the Patriot Act. The ACLU contacted the Administrative Office of the U.S. Courts to obtain up-to-date numbers on how frequently the government uses the "sneak and peek" searches (also called delayed-notice searches), a government surveillance tool authorized by the Patriot Act. The report (available here) shows that in 2010, sneak and peek warrants were issued more than twice as often as in 2009, and more than three times as often as in 2008.

GPS Monitoring & the Fourth Amendment in PI Magazine

Check out the latest issue of PI Magazine for our featured article on GPS Monitoring and the Fourth Amendment. The latest on the topic is that we still wait for a Supreme Court opinion which is slated for the 2011 term. The United States just filed its brief in the case of United States v. Jones. The issue the 2011 Supreme Court will decide is: (1) Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent. Stay Tuned

Supreme Court Grants Review on GPS Monitoring Cases

The Supreme Court granted Certiorari in United States v. Jones (Docket: 10-1259) this morning. The issues presented are as follows:

1)Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.
2) Whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.

The issue is perhaps the most important privacy/Fourth Amendment case since the Katz decision involving telephones. GPS trackers have become a prevalent law enforcement tool that not only allows the police to track movements of a person, but construct meaning from those movements. Stay tuned.

Email Seizure Requires Warrant

For the first time, a federal appeals court ruled that law enforcement must seek a search warrant to search and seize email stored by an Internet Service Provider. The National Association of Criminal Defense Lawyers issued a press release, excerpted below:

In United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored email without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”

More personal and business communications go by email than letter or fax today. The Stored Communications Act was written almost a quarter-century ago when electronic communications were a novelty, and very few people – including Congress itself – were familiar with electronic mail or even voicemail. Citizens today would find the archaic assumption that if an email stayed on a computer server for more than six month it was essentially “abandoned” as absurd.

New Blog "Intersection Between Criminal Law and Emerging Technology

Sentencing Law and Policy drew attention to "Stockycat", a strange name for a cool blog on the intersection between criminal law and emerging technology. Recent posts include Fourth Amendment implications of cell phone searches and GPS trackers on cars. The GPS post discusses the recent DC Circuit case of United States v. Maynard in which the DC Circuit held that GPS trackers could violate a person's reasonable expectation of privacy. Contrast with the Ninth Circuit's holding on the topic of GPS trackers in United States v. Pinedo-Moreno. (blogged about here). Given the focus on emerging technology, whether it be in the Fourth Amendment context or in data collection and analysis, a good resource is helpful to keep track of technology and its implications in criminal investigations.

ACLU and NACDL File Lawsuit Challenging Computer Searches

The ACLU has decided to attack an area of eroding civil rights: the laptop search at borders. On September 7th, the ACLU and NACDL filed a lawsuit challenging the Department of Homeland Security's policy that permits Border Agents to search laptop computers whether or not there has been any arrest or even probable cause. The ACLU has published materials on their website including the results of a FOIA request on how electronic media searches were conducted on travelers' computers, phones, and other electronic devices as well as the results of those searches.

Case law thus far has supported the warrantless seizure and search of laptop computers at borders. In one case from the Ninth Circuit, United States v. Arnold, the Court held that at international airports border search of a computer can take place without even reasonable suspicion of the traveler. In Arnold, Mr. Arnold was returning to LAX from the Philippines and was ordered to start up his laptop. Border agents found two pictures of nude women which led to a more extensive search of the laptop, ultimately producing child porn. The District Court suppressed the evidence obtained on the laptop, however, the Ninth Circuit overturned the decision and found the search was permissible due to being at the border.

Searches like the one in this case impact both the Fourth Amendment and the First Amendment. People's entire lives are kept on their computers. The issue is far from over with this new challenge by the ACLU and NACDL. Interestingly, a United States District Judge for the Northern District of California rejected the Government's argument that no warrant was necessary to look through the electronic files of an American citizen who was returning home from a trip to South Korea in United States v. Hanson. The facts of this case also turned on the delay: the Government argued that a six month delay in searching the computer was permitted because the property had not yet cleared customs into the United States.

For more on the ACLU and NACDL's lawsuit, clickhere.

NEW YORK – The American Civil Liberties Union, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL) today filed a lawsuit challenging the Department of Homeland Security's (DHS) policy permitting border agents to search, copy and detain travelers' electronic devices at the border without reasonable suspicion. DHS asserts the right to look though the contents of a traveler's electronic devices – including laptops, cameras and cell phones – and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.

"These days, almost everybody carries a cell phone or laptop when traveling, and almost everyone stores information they wouldn't want to share with government officials – from financial records to love letters to family photos," said Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project. "Innocent Americans should not be made to feel like the personal information they store on their laptops and cell phones is vulnerable to searches by government officials any time they travel out of the country."

Today's lawsuit was filed on behalf of the National Press Photographers Association (NPPA), whose members include television and still photographers, editors, students and representatives of the photojournalism industry; NACDL, which is a plaintiff as well as counsel on the case; and Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border.

Abidor was travelling from Montreal to New York on an Amtrak train in May when he had his laptop searched and confiscated by Custom and Border Patrol officers. Abidor, an Islamic Studies Ph.D. student, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched.

D.C. Circuit holds that GPS Monitoring is a Fourth Amendment Search

As reported at the Volokh Conspiracy, this week the D.C. Circuit held that government use of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search” when conducted over a long-term period, in this case a one month period of time. The case is United States v. Maynard. In Maynard, co-defendant Jones was convicted in a cocaine conspiracy which relied upon investigation resulting from the twenty-four hour a day monitoring of Jones's jeep over the period of one month. The D.C. Circuit held that the use of the GPS tracking device violated co-defendant Jones reasonable expectation of privacy:

Jones argues the use of the GPS device violated his ‘reasonable expectation of privacy,’ Katz, . . . and was therefore a search subject to the reasonableness requirement of the Fourth Amendment. Of course, the Government agrees the Katz test applies here, but it argues we need not consider whether Jones’s expectation of privacy wasreasonable because that question was answered in United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held the use of a beeper device to aid in tracking a suspect to his drug lab was not a search. As explained below, we hold Knotts does not govern this case and the police action was a search because it defeated Jones’s reasonable expectation of privacy.” Id. at 16 (Katz full cite omitted).

This decision is in conflict with the Ninth Circuit's opinion in United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir, 2010). For more detailed discussion on how to use as a practitioner, see the Ninth Circuit Blog. The Ninth Circuit Blog article also contains an interesting discussion on the use of cell phone towers for pinging that is easier than ever before to use as a "tracking device". It is becoming routine that federal law enforcement are using cell-phone location data through sealed applications. (Further reading here).
When working this type of case as an Investigator, it is important to get discovery that includes the type of device used, how the device stores the information, whether there was a warrant application that included a time limit, and how the device works (e.g. whether the device can be remotely accessed or whether it has to be retrieved and manually downloaded) so that the investigator is armed with all information possible to assist in a motion to suppress.

National Security Agency Executive Indicted

From Cato@Liberty

On Thursday, the government indicted former National Security Agency executive Thomas Drake for obstructing justice and mishandling classified documents—though the underlying crime, for which Drake was not actually charged, was leaking embarrassing information to national security reporter Siobhan Gorman (then of the Baltimore Sun, now at The Wall Street Journal). As Glenn Greenwald observes, the decision to move forward with a rare leak prosecution in Drake’s case stands in rather sharp contrast to the decision to look the other way when it comes to other sorts of wrongdoing in the world of intelligence.
For years, the NSA managed a sweeping program of warrantless wiretaps and large-scale data mining, which a federal judge recently confirmed was in gross violation of the Foreign Intelligence Surveillance Act. The telecoms who participated in the scheme were, equally clearly, violating the Electronic Communications Privacy Act. The FBI separately and systematically flouted the same law by obtaining call records for thousands of phone numbers without any legitimate legal process. And, of course, there’s the little matter of torture. For these crimes, the administration has pronounced a verdict of “boys will be boys,” on the grounds that it’s better to gaze boldly into our shining future than get bogged down in recriminations over all that old stuff.

Debating DNA Collection

DNA helps law enforcement investigate and prosecute crime, but the new trend of preconviction DNA collection raises serious Fourth Amendment issues for the criminal justice community.

Policymakers are increasingly coming to grips with legal issues related to taking DNA samples from people who have not been convicted of crimes.

The practice of taking DNA samples from convicted criminals is now largely uncontroversial. The courts have routinely upheld laws that authorize DNA collection from both current and former convicts, and the resulting databases of DNA have become powerful tools to analyze forensic evidence collected from crime scenes. The databases help to clear innocent suspects and redirect law enforcement officials away from unproductive investigations. They also help to convict guilty criminals and clear the wrongfully convicted.

A trend that is causing significant debate is gathering DNA samples from people who are arrested but not convicted. About 20 states and the federal government have passed legislation that requires DNA collection upon arrest. This legislation has raised concerns that crime laboratories may be unable to manage an influx of samples from a new source and that preconviction DNA collection may violate Fourth Amendment privacy guarantees.

Some people worry that collecting DNA creates the potential for abuse of genetic information stored in databases. Others point out that the federal and state privacy laws and penalties that apply to crime labs are stringent — far more stringent than the rules governing private entities that collect blood and saliva for medical or insurance purposes. Additionally, crime labs process only the DNA that applies to human identification. They do not process DNA that identifies predisposition to diseases. Indeed, most crime labs are incapable of doing that kind of DNA processing.

Full article by Sarah B. Berson can be found here.

Al Franken Reads Fourth Amendment to Department of Justice Official

Leave it to Senator (!) Al Franken to remind DOJ officials of the Fourth Amendment in discussing the FISA (Foreign Intelligence Surveillance Act) Amendments upholding warrantless "roving" wiretapping. A roving wiretap is a wiretap specific to the United States that follows the surveillance target. The Patriot Act greatly expanded roving wiretapping.

Here is an excerpt from a great article from Cato @ Liberty that details the difference between roving wiretaps, Title III wiretaps, and the Fourth Amendment. Or as appellate Judge Sydney Thomas asked: "What happened to the Fourth Amendment? Was it repealed somehow?"

To understand the reasons for potential concern, we need to take a little detour into the differences between electronic surveillance warrants under Title III and FISA. The Fourth Amendment imposes two big requirements on criminal warrants: “probable cause” and “particularity”. That is, you need evidence that the surveillance you’re proposing has some connection to criminal activity, and you have to “particularly [describe] the place to be searched and the persons or things to be seized.” For an ordinary non-roving wiretap, that means you show a judge the “nexus” between evidence of a crime and a particular “place” (a phone line, an e-mail address, or a physical location you want to bug). You will often have a named target, but you don’t need one: If you have good evidence gang members are meeting in some location or routinely using a specific payphone to plan their crimes, you can get a warrant to bug it without necessarily knowing the names of the individuals who are going to show up. On the other hand, though, you do always need that criminal nexus: No bugging Tony Soprano’s AA meeting unless you have some reason to think he’s discussing his mob activity there. Since places and communications facilities may be used for both criminal and innocent persons, the officer monitoring the facility is only supposed to record what’s pertinent to the investigation.

When the tap goes roving, things obviously have to work a bit differently. For roving taps, the warrant shows a nexus between the suspected crime and an identified target. Then, as surveillance gets underway, the eavesdroppers can go up on a line once they’ve got a reasonable belief that the target is “proximate” to a location or communications facility. It stretches that “particularity” requirement a bit, to be sure, but the courts have thus far apparently considered it within bounds. It may help that they’re not used with great frequency: Eleven were issued last year, all to state-level investigators, for narcotics and racketeering investigations.

Surveillance law, however, is not plug-and-play. Importing a power from the Title III context into FISA is a little like dropping an unfamiliar organism into a new environment—the consequences are unpredictable, and may well be dramatic. The biggest relevant difference is that with FISA warrants, there’s always a “target”, and the “probable cause” showing is not of criminal activity, but of a connection between that target and a “foreign power,” which includes terror groups like Al Qaeda. However, for a variety of reasons, both regular and roving FISA warrants are allowed to provide only a description of the target, rather than the target’s identity. Perhaps just as important, FISA has a broader definition of the “person” to be specified as a “target” than Title III. For the purposes of criminal wiretaps, a “person” means any “individual, partnership, association, joint stock company, trust, or corporation.” The FISA definition of “person” includes all of those, but may also be any “group, entity, …or foreign power.” Some, then, worry that roving authority could be used to secure “John Doe” warrants that don’t specify a particular location, phone line, or Internet account—yet don’t sufficiently identify a particular target either. Congress took some steps to attempt to address such concerns when they reauthorized Section 206 back in 2005, and other legislators have proposed further changes—which I’ll get to in a minute. But we actually need to understand a few more things about the peculiarities of FISA wiretaps to see why the risk of overbroad collection is especially high here.

In part because courts have suggested that the constraints of the Fourth Amendment bind more loosely in the foreign intelligence context, FISA surveillance is generally far more sweeping in its acquisition of information.

Watch It Here: 10 Rules for Dealing with Police

Watch It Here: 10 Rules for Dealing with Police

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10 Rules for Dealing with Police, the new film from Flex Your Rights, premiered at Cato earlier this week. If you’re interested in knowing more about how to defend your rights during encounters with law enforcement, this is a must-see. You can watch the whole thing below, which includes discussion and commentary after the film.