FBI violated Americans’ privacy by abusing access to NSA surveillance data, court rules; October 8, 2019

Nick Statt, The Verge; FBI violated Americans’ privacy by abusing access to NSA surveillance data, court rules

"The Federal Bureau of Investigation made tens of thousands of unauthorized searches related to US citizens between 2017 and 2018, a court ruled. The agency violated both the law that authorized the surveillance program they used and the Fourth Amendment of the US Constitution.

The ruling was made in October 2018 by the Foreign Intelligence Surveillance Court (FISC), a secret government court responsible for reviewing and authorizing searches of foreign individuals inside and outside the US. It was just made public today."

Judge Facciola Says Carpenter Decision May Signal the End of the Third Party Doctrine; JD Supra, July 5, 2018

JD Supra; Judge Facciola Says Carpenter Decision May Signal the End of the Third Party Doctrine

"The old view of the third-party doctrine must yield to new concerns about recent technology or what CJ Roberts called “the critical issue” of “basic Fourth Amendment concerns about arbitrary government power” that are “wrought by digital technology.”

Overall, the Roberts Court seems to understand electronic privacy’s importance, especially when Carpenter is coupled with the previous decisions in US v Jones (2011), which required a warrant before police placed a GPS tracker on a vehicle and Riley v California (2014) which forbade warrantless searches of a cell phone during an arrest."

The dangers of digital things: Self-driving cars steer proposed laws on robotics and automation, ABA Journal, March 2018

Victor Li, ABA Journal; The dangers of digital things: Self-driving cars steer proposed laws on robotics and automation

"Some states are standing in a legal gray area. Pennsylvania, for example, is a training ground for Uber’s collaboration with Carnegie Mellon to deploy autonomous vehicles throughout Pittsburgh. At press time, Pennsylvania did not have a statute that speaks to the legality of driverless cars.

However, Roger Cohen, policy director at the Commonwealth of Pennsylvania Department of Transportation, says the state has long operated under the assumption that autonomous cars are allowed on public roadways—as long as a human driver is at the steering wheel ready to take over. PennDOT has taken the lead in promulgating policies relating to autonomous vehicles with the goal of their formal adoption into law.

“That policy was deemed to be a more effective tool for the public oversight of testing operations because of its ability to be flexible and nimble and rapid in responding to what are fast-moving, unpredictable, hard-to-anticipate new developments,” Cohen says.

As with Michigan, Cohen says time is of the essence, adding that although Pennsylvania’s regulatory structure has an important purpose, it generally takes one to two years to process feedback and review the rules. “That was deemed to be ineffective for emerging technology,” Cohen says.

Instead, PennDOT has been freed up to develop policies while collaborating with a wealth of stakeholders—including academics, sister agencies, lawyers, technology companies and members of the automotive industry. Cohen says bills are pending in both state legislative houses, and he is optimistic that they’ll be passed.

“When it comes to car accidents, we must drive down the death rate toward zero, which is our goal,” Cohen says. “We have a technology that gives us our best chance to do that. I think there are real issues concerning data ownership, data privacy and cybersecurity. But there’s every reason to be optimistic.”"

Tech firm is fighting a federal order for data on visitors to an anti-Trump website; Washington Post, August 14, 2017

Ellen Nakashima, Washington Post; Tech firm is fighting a federal order for data on visitors to an anti-Trump website

"On Friday, DreamHost filed a reply arguing that the warrant’s breadth violates the Fourth Amendment because it failed to describe with “particularity” the items to be seized. Asking for “all records or other information” pertaining to the site, including “all files, databases and database records” is far too broad, the company said.

The warrant also raises First Amendment issues, it said. Visitors to the protest site should have the right to keep their identities private, but if they fear that the Justice Department will have information on them, that will chill their freedom of speech and association, the company argued.

The company said that the warrant would require them to turn over data on potentially tens of thousands of law-abiding website visitors.

Mark Rumold, staff attorney for the Electronic Frontier Foundation, said that no plausible explanation exists for a search warrant of such breadth, “other than to cast a digital dragnet as broadly as possible.”

He said that the government appears to be investigating a conspiracy to riot, “but it’s doing it in a blunt manner that does not take into account the significant First Amendment interests.”"

When a Computer Program Keeps You in Jail; New York Times, June 13, 2017

Rebecca Wexler, New York Times; When a Computer Program Keeps You in Jail

"The criminal justice system is becoming automated. At every stage — from policing and investigations to bail, evidence, sentencing and parole — computer systems play a role. Artificial intelligence deploys cops on the beat. Audio sensors generate gunshot alerts. Forensic analysts use probabilistic software programs to evaluate fingerprints, faces and DNA. Risk-assessment instruments help to determine who is incarcerated and for how long.

Technological advancement is, in theory, a welcome development. But in practice, aspects of automation are making the justice system less fair for criminal defendants.

The root of the problem is that automated criminal justice technologies are largely privately owned and sold for profit. The developers tend to view their technologies as trade secrets. As a result, they often refuse to disclose details about how their tools work, even to criminal defendants and their attorneys, even under a protective order, even in the controlled context of a criminal proceeding or parole hearing."

A Twenty-First Century Framework for Digital Privacy; LAWFARE, May 15, 2017

Jeffrey Rosen, LAWFARE; 

A Twenty-First Century Framework for Digital Privacy

"Editor's note: This is a crosspost from the National Constitution Center's website. Video of the Center's event on digital privacy is available below...

Advances in technology raise numerous important (and difficult) legal questions:

• How can we strike the right balance between security and privacy in the digital age?
• How might we translate Fourth Amendment doctrine in light of technological advances and changing consumer expectations of privacy?
• What constitutional and statutory protections should there be for data stored in the Cloud, and under what circumstances and with what constraints should the government get access to it?
• Does the government have to tell consumers when it searches their email accounts or accesses their data?
• And whose law should govern access to data in our borderless world—a world where data is often stored on servers in other countries and can be transferred across borders at the snap of a finger?

The National Constitution Center, with the support of Microsoft, has assembled leading scholars and thought leaders to publish a series of five white papers, entitled A Twenty-First Century Framework for Digital Privacy.  We’ve asked these contributors to reflect on the challenges that new technologies pose to existing constitutional doctrine and statutory law and to propose solutions—doctrinal, legislative, and constitutional—that translate the Constitution and federal law in light of new technologies.  The overarching question we asked contributors to address is how best to balance privacy concerns against the need for security in the digital age.  These contributors represent diverse points of view and experiences and their papers reflect the Constitution Center’s commitment to presenting the best arguments on all sides of the constitutional issues at the center of American life."

Trump wants to search cellphones at the border. These lawmakers are trying to stop him.; Washington Post, April 4, 2017

Brian Fung, Washington Post; Trump wants to search cellphones at the border. These lawmakers are trying to stop him.

"“Just because you cross the border doesn’t mean the government has a right to everything on your computer,” Rep. Blake Farenthold (R-Tex.), one of the bill's sponsors, said Tuesday. The bill's other sponsors are Rep. Jared Polis (D-Colo.) and Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.)."

Major Ruling Shields Privacy of Cellphones: Supreme Court Says Phones Can’t Be Searched Without a Warrant; New York Times, 6/25/14

Adam Liptak, New York Times; Major Ruling Shields Privacy of Cellphones: Supreme Court Says Phones Can’t Be Searched Without a Warrant:

"In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”"