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Mass. Court Orders Defendant to Unencrypt His Computer

The Supreme Court of Massachusetts has ordered a defendant to decrypt his computer after he told police during a post-arrest interview, he had the ability to do so.

Because Gelfgatt already admitted to police that he owned and controlled the seized computers and had the ability to decrypt them, the court found that the act of decryption would not reveal anything new to the police. Therefore, the act of compelled decryption was not “testimonial.” Normally, the Fifth Amendment privilege prevents the government from forcing a witness to disclose incriminating information in his mind (like a password not written down anywhere else)—but only if that is information the police do not already know.

The defendant is a lawyer charged with mortgage fraud. He should have known better. Miranda rights are there for a reason -- use them or lose them.

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10th Circuit Rules States Cannot Ban Same Sex Marriage

The 10th Circuit Court of Appeals has affirmed a lower court's ruling that Utah's ban on same sex marriage is unconstitutional.

The opinion is here.

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

This appears to be the first federal appeals court ruling on the constitutional issue since the Supreme Court struck down the Defense of Marriage Act. [More...]

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Supreme Court Rules Warrant Needed for Cell Phone Searches

The Supreme Court unanimously ruled in two cases today that police must get a warrant to search a cell phone after arrest.

Roberts noted in his opinion that cellphones "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

The cases are Riley v. California and U.S. v. Wurie. The opinion is here. Lyle Denniston at ScotusBlog has this analysis of the opinion.

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OIG Report on Postal Service's Use of Mail Covers

The Inspector General recently issued a report on the use of mail covers to spy on mail. It found procedures were not being followed in a substantial number of cases. Politico reports:

The U.S. Postal Service failed to observe key safeguards on a mail surveillance program with a history of civil liberties abuses, according to a new internal watchdog report that USPS managers tried to keep secret, citing security concerns.

...The Office of Inspector General audit of so-called “mail covers” — orders to record addresses or copy the outside of all mail delivered to an individual or an address — found that about 20 percent of the orders implemented for outside law enforcement agencies were not properly approved, and 13 percent were either unjustified or not correctly documented.

The post office issued 40,000 mail covers last year. The postal inspectors didn't want the report made public, but the inspector general's office published a redacted version anyway. You can read it here.

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11th Circuit Rules Warrrant Required for Cell Site Locator Data

Quartavious Davis was convicted of various robberies during which he possessed a gun. He was sentenced to 162 years. His primary argument on appeal was the the Government obtained his cell phone's location information from his wireless provider by court order under the Stored Communications Act rather than by search warrant. Unlike a search warrant, the SCA does not require a showing of probable cause. The Government used the location data Davis at trial to show that as to six of the seven robberies, Davis and his co-defendants placed and received cell phone calls around the time of the robberies near the locations of the stores that were robbed. The 11th Circuit ruled Davis had a valid privacy interest in his location under the Fourth Amendment, and obtaining the data via an order under the SCA (section 2703(d)) was unconstitutional. The opinion is here.

The AP reports:

In the first ruling of its kind nationally, a three-judge panel of the 11th U.S. Circuit Court of Appeals determined people have an expectation of privacy in their movements and that the cell tower data was part of that. As such, obtaining the records without a search warrant is a violation of the Fourth Amendment's ban on unreasonable searches and seizures, the judges ruled.

However, Davis gets no relief from the Court because of the violation. The Court determined the "good faith" exception to the exclusionary rule applies under United States v. Leon. [More...]

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House Guts NSA Surveillance Reforms Before Passing Bill

The House today passed the USA Freedom Act -- after stripping it of several critical reform provisions.

The bill was intended to end the NSA's bulk collection of our phone records. Instead, the bill is ambiguous at best, and at worst, can be viewed as codifying the NSA's authority for bulk record collection. A coalition of tech companies, including FB, Google and Yahoo, warn "the revised version creates an "unacceptable loophole that could enable the bulk collection of internet users' data."

The version that passed the House contains changed definitions, weakens the reforms to Section 702 of FISA, and has no provision for introducing a special advocate in the FISA Court.
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New Snowden Documents : NSA/DEA Warrantless Intercepts

Check out the latest from The Intercept (Ryan Devereaux, Glenn Greenwald and Laura Poitras), Data Pirates of the Carribean, on an NSA and DEA program called "SomalGet", which is part of MYSTIC.

NSA and the DEA have been recording every phone call in the Bahamas without the knowledge of the Bahamian government.

[The NSA] appears to have used access legally obtained in cooperation with the U.S. Drug Enforcement Administration to open a backdoor to the country’s cellular telephone network, enabling it to covertly record and store the “full-take audio” of every mobile call made to, from and within the Bahamas – and to replay those calls for up to a month.

The program has also been used in Mexico, the Philippines, and Kenya.

[W]hile MYSTIC scrapes mobile networks for so-called “metadata” – information that reveals the time, source, and destination of calls – SOMALGET is a cutting-edge tool that enables the NSA to vacuum up and store the actual content of every conversation in an entire country.

Here is a 2012 memo written by an official in the NSA's International Crime & Narcotics division describing the program. [More....]

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NSA, Metadata, and Congress

David Cole in the New York Review of Books has a new article, "We Kill People for Metadata" on the mistaken notion that the NSA's collection of metadata in its pursuit of terrorists is no big deal because it does not collect the content of communications, only details about them. First he quotes NSA counsel Stewart Baker:

“Metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.”

He then quotes General Michael Hayden, former director of the NSA and the CIA:

“We kill people based on metadata.”

[More...}

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Apple and Other Tech Companies to Notify Users of Records Requests

Some welcome news regarding requests by law enforcement for information in your online accounts. The Washington Post reports:

Apple, Microsoft, Facebook and Google all are updating their policies to expand routine notification of users about government data seizures, unless specifically gagged by a judge or other legal authority, officials at all four companies said. Yahoo announced similar changes in July.

Law enforcement, of course, is unhappy about this. [More...]

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Obama to Propose Legislation Ending NSA Bulk Records Collection

President Obama will introduce legislation to end the NSA's warrantless collection of bulk telephone records. Authority for the NSA's program expires Friday, unless renewed by the FISA Intelligence Court. According to senior administration officials:

Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

[More...]

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Yet Another NSA Program: Mystic

The Washington Post reports on yet another NSA surveillance program: Mystic.

The National Security Agency has built a surveillance system capable of recording “100 percent” of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place, according to people with direct knowledge of the effort and documents supplied by former contractor Edward Snowden.

In related news, in a court filing, DOJ confirmed warrantless mass e-mail surveillance during the Bush administration.

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Obama and Deportation Policy

Republican intransigence over immigration reform may result in President Obama easing Homeland Security's removal (previously called deportation) policies. Two measures are under consideration.

Obama met with various Latino groups yesterday. After the meeting:

Obama announced late on Thursday that he had decided to review deportation practices to seek a more "humane" way to enforce immigration laws.....Immigration law experts have said Obama could use his executive authority to also stop deporting parents of those children to keep families together.

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"Incidental" Collection of Domestic Data Unaddressed By Obama Speech

This terrific piece by Bart Gellman explains how President Obama's speech was woefully lacking in what I think of as one of the most important issues regarding NSA spying:

[T]he NSA is gathering hundreds of millions of e-mail address books, breaking into private networks that link the overseas data centers of Google and Yahoo, and building a database of trillions of location records transmitted by cellphones around the world.

Those operations are sweeping in a large but unknown number of Americans, beginning with the tens of millions who travel and communicate overseas each year. For at least as many Americans, and likely more, the structure of global networks carries their purely domestic communications across foreign switches.

[MORE . . .]

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Supreme Court to Decide Two Cases on Cell Phone Searches

The Supreme Court has agreed to hear two cases on warrantless cell phone searches. One is a state case, the other is federal:

The court will hear an appeal from David Riley, a San Diego man who was stopped by the police, initially for having expired registration tags. A subsequent search of his cellphone tied him to a gang shooting. The California Supreme Court by a 5-2 decision upheld the search of cellphones in a related case.

The court will also hear the Justice Department’s appeal of a ruling that rejected the search of a cellphone that was taken from an alleged drug dealer.

[More...]

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Obama's NSA Reforms on Bulk Data Collection

President Obama today released his reforms to the NSA's bulk data collection program.

ACLU Executive Director Anthony Romero said the changes are welcome, but don't go far enough:

The president should end – not mend – the government’s collection and retention of all law-abiding Americans’ data. When the government collects and stores every American’s phone call data, it is engaging in a textbook example of an ‘unreasonable search’ that violates the Constitution. The president’s own review panel recommended that bulk data collection be ended, and the president should accept that recommendation in its entirety.”

Here is Obama's Policy Directive . The fact sheet is here. [More}

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