“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [a wallet or purse] … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” — Chief Justice Roberts, writing for the Court in Riley v. California, in which the Justices unanimously disallowed warrantless police searches of arrestees’ cell phones.
Less than a mile before a police DUI checkpoint in Parma, Ohio, resident Doug Odolecki held a sign reading “Check point ahead turn now.” Police gave him a ticket and confiscated the sign: “Odolecki was issued a ticket and forced to hand over his sign. “Parma Police tell us they can’t get into the details of the pending case but a Sergeant told me that Odolecki was obstructing officers ability to do their job. They also said that the issue was with the part of the sign that said ‘turn now.’” [WOIO via AOL]
Even if the cops wave you to the side amid flashing lights, and functionaries come out to ask you for saliva or blood samples, and keep asking after you say no, it’s all “voluntary.” Right? Right. “A recent Georgia appellate decision reversed a trial court that held the lights atop a police car were merely an invitation to chat rather than a command to stop, the refusal of which tended to produce death by a hail of gunfire.” [Amy Alkon, Scott Greenfield, earlier here, here, and, on "no-refusal" blood-draw DUI checkpoints, here]
An extra reason to be cautious in your holiday driving:
If you live in one of 30 cities, you may find yourself pulled over soon at roadblocks where police and federal contractors ask to swab your cheeks, take your blood or give a breath sample to see if you’re on drugs without any probable cause that you’ve committed a crime. Such an exciting time for your civil liberties!
[Jalopnik via @ProfBainbridge] On the separate issue of “no-refusal” blood draws at DUI stops in states like Texas and Tennessee, see Sept. 30.
Yes, “copyright infringement”:
Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency's] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.
U.K.: “Dame Stella Rimington, the former head of MI5, has warned that the fear of terrorism is being exploited by the Government to erode civil liberties and risks creating a police state.” [Telegraph]
At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.
“…for evidence in murder, divorce cases.” [Bob Sullivan, NBC News]
Don’t just think vacuum cleaners, think J. Edgar Hoover. [Gene Healy, Washington Examiner] In fact there’s a long history of misuse of ostensibly secure law-enforcement files and databases [1993 GAO report; Robert F. Weir, ed., book on Stored Tissue Samples; unlawful private-investigator access to the National Crime Information Center (NCIC), the FBI's electronic criminal-records database] Once DNA databases are open to varied queries from multiple law enforcement agencies, can we presume them immune from abuse? Even the NSA, whose level of professionalism is presumedly far higher than that of local law enforcement agencies, is no stranger to stories about gratuitous and offensive abuse of privacy. And, writes Jim Harper, the evidence is that the NSA has gathered telecom metadata on a dragnet basis (as distinct from individualized suspicion) not merely for data mining, but to assist in investigations of persons who may happen to come under suspicion in the future, quite a different rationale.
More: “Was a Telecom CEO Sent to Prison Because He Resisted NSA?” [Alexander Cohen, Atlas, on Joseph Nacchio's prosecution on insider trading charges after QWest refused to participate in surveillance] For many other telecoms, at any rate, fear of regulatory muscle will turn them into eager cooperators [Ira Stoll on Verizon] Related: 2007.
Did you know the IRS has asserted, and apparently exercised, a right to read your emails without a warrant? I didn’t, until now. [ACLU; more from ProPublica]
Regarding yesterday’s revelation that the National Security Agency has been collecting the phone records of millions of Americans, Glenn Greenwald at the U.K. Guardian has the original scoop, quoting my Cato colleague Julian Sanchez about one of the most salient aspects of the program: it scoops up everyone’s phone data in a dragnet, rather than proceeding against some narrower category of phone records for which there is individualized suspicion. More coverage: Guardian sidebar on what telephone metadata can reveal; Timothy Lee/Washington Post; Orin Kerr/Volokh (“This is potentially a huge story. If the NSA is getting all call records from every domestic call from Verizon, then that’s a very big deal”); Adam Serwer/MSNBC; Electronic Frontier Foundation (“There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records. And this has been going on for at least 7 years, and probably longer.”) And from a slightly different perspective, Joshua Foust, who cites Congress for having repeatedly voted to give the Executive ultra-broad surveillance powers, and writes: “The information the NSA is collecting is metadata, not content (like a wiretap), and not account names. Uncovering personally identifiable information would require separate warrants to do so. This was a pattern analysis, not really mass surveillance as we traditionally understand it.”
P.S. On the IRS’s claims of a right to read email without a warrant, Justin Horton: “Not limited to IRS; this is basically government’s position and only 6th Circuit seems to disagree.”