Tuesday, January 16, 2007

4th Amendment technologically out of date?

Police are supposed to have warrants to search your home or person - and "no warrant shall be issued without probable cause" - but increasingly the most important parts of our lives are available to government snooping without warrant or probable cause, as The Washington Post points out:

The law makes a distinction between intercepting e-mail in transit and obtaining stored e-mail from a service provider's servers. The distinction made sense in the 1980s and early 1990s when downloaded e-mail often sat only on the user's computer. If the government wanted the records, it had to go to the e-mail recipient.

These days, most e-mail is held and stored by third parties. So the government claims the authority to read someone's most intimate communications, including stored chat sessions, by serving a subpoena -- no probable cause required. A person may never even know that this has been done, as there is no legal requirement for an Internet service provider to provide notice. In most cases where the government subpoenas the e-mail, it demands that the third party keep that fact confidential, at least for a while.

The same holds true for virtually any information held by a third party: phone company records that indicate who called you, when they called and how long the call lasted; Internet service provider records on what Web sites you visited, when and for how long; tollbooth records; security camera footage; records of emergency calls made from a car; supermarket purchase records. All that and more can be requested by the government with a search warrant, or sometimes with an administrative subpoena or other demand, frequently without judicial review.

Since the Sept. 11 attacks, the government also has vastly increased its power to obtain Americans' private financial, phone-call and Internet-transaction data using national security letters, which do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The FBI issues more than 30,000 a year, The Washington Post reported in 2005. And the Pentagon issues its own version, the New York Times reported on Sunday.

Tuesday, January 9, 2007

Teen sex? That's 10 years in Georgia

Associated Press

The Georgia Supreme Court has turned down an appeal from a teen who was sentenced to 10 years in prison for having sex with a 15-year-old.
In a ruling released Friday, the court denied a motion for reconsideration filed by lawyers for Genarlow Wilson, who was 17 when he and the 15-year-old engaged in consensual oral sex. He was sentenced for aggravated child molestation.

Wilson’s case was one of two cases that were cited earlier this year when lawmakers passed a law that otherwise strengthened penalties for sex offenders, but reduced the penalty from a felony to a misdemeanor for some teenagers convicted of sodomy.
Presiding Justice Carol Hunstein noted that in easing the penalties for teens, ‘‘the Legislature expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute.’’

Hunstein added she was ‘‘very sympathetic to Wilson’s argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to 10 years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior,’’ but said the court was bound the by limits set by the Legislature.

Email porn, go to jail ...

Fear of the Internet as a "cesspool" coupled with an almost hysterical fear of child pornography is leading to a rash of outrageous criminal legislation. In Nebraska, a state senator introduced a bill at the attorney general's request that would make emailing a pornographic image a crime - a felony if mailed to a child, the Associated Press reports.

Current law prohibits using a telephone to intimidate, threaten, harass, annoy or offend a person. The new bill would add computers and other electronic devices, and would make illegal sending a "visual depiction of sexually explicit conduct."

While I haven't read the legislation, this report seems to suggest that the very act of sending a pornographic image over email would be a crime, regardless of intent. That seems to fly in the face of an awful lot of First Amendment decisions allowing willing adults to communicate freely. It would mean that publishers and magazine distributors could sell printing pornography, but friends couldn't share images online.

Monday, January 8, 2007

Terry v Ohio

Terry v Ohio, 392 US 1
Police officer who observed conduct by defendant and another consistent with hypothesis that they were contemplating daylight robbery, and who approached, identified himself as officer, and asked their names, acted reasonably, when nothing appeared to dispel his reasonable belief of their intent, in seizing defendant in order to search him for weapons, and did not exceed reasonable scope of search in patting down outer clothing of defendants without placing his hands in their pockets or under outer surface of garments until he had felt weapons, and then merely reached for and removed guns.

Rule: Where police has reasonable suspicion of criminal activity and reasonable concern that suspect has a concealed weapon, officer can pat down for a "frisk" search for safety of officers and others.
But this has devolved to "pat down at will"

California v Hodari

California v Hodari D 499 U.S. 621 (1991)

Cops wearing POLICE jackets but plain clothes. They saw 4-5 youths around a car. They fled when cop car approached. Cops gave chase. Hodari threw away a rock, which turned out to be crack. Hodari moves to suppress the crack.

TC denied. CA Ct of Appeal reversed, holding that Hodari had been seized, which was unreasonable under 4th.

Issue: When he threw the coke, was he "seized" under the 4th?
Held: No, not until he was tackled. So the coke was not the fruit of the seizure.
1. Terry: A seizure occurs when the officer by means of physical force or show of authority has in some way restrained the liberty of an individual.
2. Hodari contends that cop's pursuit qualified as show of authority.
3. Scalia: Seizure requires either physical force or submission to the assertion of authority.

Rule: Submission to authority, not mere show of authority, in absence of physical force, is required for seizure.