Read the original article: Podcast Episode: Fixing a Digital Loophole in the Fourth Amendment
Episode 003 of EFF’s How to Fix the Internet
Jumana Musa joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how the third-party doctrine is undermining our Fourth Amendment right to privacy when we use digital services, and how recent court victories are a hopeful sign that we may reclaim these privacy rights in the future.
In this episode you’ll learn about:
- How the third-party doctrine is a judge-created legal doctrine that impacts your business records held by companies, including metadata such as what websites you visit, who you talk to, your location information, and much more;
- The Jones case, a vital Supreme Court case that found that law enforcement can’t use continuous location tracking with a GPS device without a warrant;
- The Carpenter case, which found that the police must get a warrant before accessing cell site location information from a cell phone company over time;
- How law enforcement uses geofence warrants to scoop up the location data collected by companies from every device that happens to be in a geographic area during a specific period of time in the past;
- How getting the Fourth Amendment right is especially important because it is part of combatting racism: communities of color are more frequently surveilled and targeted by law enforcement, and thus slipshod legal standards for accessing data has a disproportionate impact on communities of color;
- Why even a warrant may not be an adequate legal standard sometimes, and that there are circumstances in which accessing business records should require a “super warrant” – meaning law enforcement could only access the data for investigating a limited number of crimes, and only if the data would be important for the crime.
Jumana Musa is a human rights attorney and racial justice activist. She is currently the Director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers. As director, Ms. Musa oversees NACDL’s initiative to build a new, more durable Fourth Amendment legal doctrine for the digital age. The Fourth Amendment Center educates the defense bar on privacy challenges in the digital age, provides a dynamic toolkit of resources to help lawyers identify opportunities to challenge government surveillance, and establishes a tactical litigation support network to assist in key cases. Ms. Musa previously served as NACDL’s Sr. Privacy and National Security Counsel.
Prior to joining NACDL, Ms. Musa served as a policy consultant for the Southern Border Communities Coalition, a coalition of over 60 groups across the southwest that address militarization and brutality by U.S. Customs and Border Protection agents in border communities. Previously, she served as Deputy Director for the Rights Working Group, a national coalition of civil rights, civil liberties, human rights, and immigrant rights advocates where she coordinated the “Face the Truth” campaign against racial profiling. She was also the Advocacy Director for Domestic Human Rights and International Justice at Amnesty International USA, where she addressed the domestic and international impact of U.S. counterterrorism efforts on human rights. She was one of the first human rights attorneys allowed to travel to the naval base at Guantanamo Bay, Cuba, and served as Amnesty International’s legal observer at military commission proceedings on the base. You can find Jumana on Twitter at @musajumana.
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Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.
Resources
3rd Party Doctrine & Metadata
- Deep Dive: Updating the Electronic Communications Privacy Act (EFF deep dive on the history of the third-party doctrine)
- Why Metadata Matters (EFF)
- In Klayman v. Obama, EFF Explains Why Metadata Matters and the Third-Party Doctrine Doesn’t (EFF)
- NSA Spying (EFF’s landing page re NSA spying and their use of metadata)
- EFF cases in relation to NSA spying and metadata in order of file date:
- Win! Landmark Seventh Circuit Decision Says Fourth Amendment Applies to Smart Meter Data (EFF Victory re metadata in Internet of Things in Naperville Smart Meter Awareness v. Naperville)
- Naperville Smart Meter Awareness v. Naperville – EFF and Privacy International Amicus Brief
- Naperville Smart Meter Association v. Naperville – Seventh Circuit Decision
- Law Enforcement’s Secret ‘Super Search Engine’ Amasses Trillions of Phone Records for Decades (AT&T’s Hemisphere Program)
- CREDO Confirms It’s at Center of Long-Running Legal Fight Over NSLs (EFF)
Third-Party Doctrine and DNA/Genetic Privacy
- Genetic Genealogy Company GEDmatch Acquired by Company With Ties to FBI & Law Enforcement – Why You Should Be Worried (EFF)
- Police May Not Need a Warrant to Rummage Through Your Trash, But Warrantless Collection of DNA is Constitutional (EFF)
- State v. Bentaas – EFF/ACLU Amicus Brief in Support of Motion to Suppress. (EFF Amicus in Genetic Privacy Case State v. Bentaas)
- A Dead Baby Was Found in a Ditch in 1981. DNA Helped Charge the Mother with Murder (New York Times)
SCOTUS Cases and Decisions re. Third Party Doctrine
- Supreme Court Decision in US v Jones
- US v. Jones Case Page
- Amicus Brief of EFF, CDT and Technical Experts in Support of Jones (EFF’s amicus brief)
- Riley v California and United States v Wurie Case Page
- EFF Amicus Brief in Support of Riley and Wurie (EFF)
- Riley-Wurie Supreme Court Opinions (SCOTUS opinion)
- Supreme Court Sets Powerful Limited for Cell Searches, Fails to Protect Internet Streaming (EFF)
- Carpenter v United States Case Page
- EFF Amicus Brief for Carpenter (EFF’s Amicus Brief w/ NACDL, Brennan Center, etc.)
- Carpenter v. United States – Supreme Court Opinion (SCOTUS opinion)
- Victory! Supreme Court Says Fourth Amendment Applies to Cell Phone Tracking (EFF)
Cases re. Location Data, Privacy, and Warrant Requirements
- Massachusetts Court Blocks Warrantless Access to Real-Time Cell Phone Location Data (EFF Victory in Commonwealth of Massachusetts v. Almonor re cell site simulators)
- EFF Files Amicus Brief Arguing that Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment (Ongoing case in Commonwealth of Pennsylvania v. Dunkins re. Retrospective locational tracking)
- EFF’s Amicus Brief in Commonwealth of Pennsylvania v. Dunkins (EFF)
- New Federal Court Rulings Find Geofence Warrants Unconstitutional (EFF)
- EFF Files Amicus Brief Arguing Geofence Warrants Violate the Fourth Amendment (Ongoing case of People v Dawes in SF Superior Court re geofence warrants)
- People v. Dawes – EFF Amicus Brief in Support of Motion to Quash Geofence Warrant (EFF’s amicus brief)
- United States v. Chatrie (Ongoing case re geofence warrants)
- US v Chatrie – Government Opposition to Motion to Suppress (Geofence Warrant) (EFF’s amicus brief)
- US v Chatrie – Google Amicus Brief (Geofence Warrant) (Google’s amicus brief)
- US v Chatrie – Google Declaration (Geofence Warrant) (Google’s declaration)
- Do Geofence Warrants Violate the Fourth Amendment? (Lawfare)
- State of Maryland v. Kerron Andrews Case Page: (EFF on State of Maryland v. Andrews re warrantless use of cell site simulators)
- EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case (Victory in US v Damian Patrick re. The Government’s secret use of Stingrays)
- U.S. v. Damian Patrick Case Page
- State of Maryland v. Andrews – EFF/ACLU Amicus Brief – Stingrays (EFF & ACLU amicus brief)
- EFF, ACLU & CDT Argue Five Months of Warrantless Covert 24/7 Video Surveillance Violates Fourth Amendment (Ongoing case of Commonwealth of Massachusetts v Mora re warrantless video surveillance)
- Commonwealth v. Mora – ACLU, EFF, CDT Amicus Brief
Black Lives Matter, the 4th Amendment, and Surveillance
- Black Lives Matter, Online and in the Streets: Statement from EFF in the Wake of the Police Killings of Breonna Taylor and George Floyd
- EFF’s Resources on Protecting One’s Privacy While Attending a Protest:
- EFF Offering Assistance with Attorney Referrals for Protesters
- NACDL
- Jumana Musa’s NACDL Bio
- Tracking Phones, Google is a Dragnet for the Police (New York Times on geofence warrants)
- Google’s Sensorvault Can Tell Police Where You’ve Been (Google’s Sensorvault and police Ppartnership)
- Pen Register Trap
- The Snowden File
- EFF’s Atlas of Surveillance
Transcript of Episode 003: Fixing a Digital Loophole in the Fourth Amendment
Danny O’Brien:
Welcome to How to Fix the Internet with the Electronic Frontier Foundation, the podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of Internet law.
Cindy Cohn:
[…]
Read the original article: Podcast Episode: Fixing a Digital Loophole in the Fourth Amendment
