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Federal Court Says Sneaking A Warrantless Peek At A Cellphone Lock Screen Violates The Fourth Amendment

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Keep your mitts off cellphones if you don't have a warrant. That's the message at least one court is sending to law enforcement. A 2014 decision by the US Supreme Court introduced a warrant requirement for cellphone searches. Since then, cops mostly seem to be complying with the mandate. Of course, this half-assed analysis of mine rests solely on federal cases I've managed to catch drifting downstream in the internet flotsam, so it's far from conclusive. But -- unlike the SCOTUS decision erecting a warrant requirement for historic cell site location info -- there doesn't seem to be much gray area in the Riley decision for law enforcement to explore.But what exactly is a "search" in the Fourth Amendment/Riley context? It depends on which court you ask. The most straightforward reading of the Riley decision would be a warrant requirement for a search of a phone's contents. But a couple of courts have read this decision even more narrowly. Riley doesn't just cover full-fledged searches of device contents. It also covers more sneaky peeks of suspects' phones.In 2016, a federal court ruled that the FBI's opening of a flip phone (roughly one week after the suspect's arrest) violated the Fourth Amendment. Even the recognition that the home screen of a phone was subject to a "diminished" expectation of privacy couldn't save the feds' search. The court said the FBI's search of the unexposed area of the phone -- the closed screen -- was a search and subject to Riley. To rule otherwise would be to allow the government to use similar cursory examinations to dodge the warrant requirement or unlawfully seek info to buttress affidavit claims in warrant requests for a more thorough search.

[T]he Court sees no reason to allow law enforcement to circumvent the warrant requirement in every case under the guise that they discovered evidence when they opened the phone or turned on the screen to turn the phone off.
A similar case has come to similar conclusions in a Washington federal court (via FourthAmendment.com). Flip phones may have been (mostly) resigned to the scrap heap of cellphone history, but the precedent -- if not the emphasis -- remains. Lock screens are still protected under the Fourth Amendment. From the decision [PDF]:
Here, the FBI physically intruded on Mr. Sam’s personal effect when the FBI powered on his phone to take a picture of the phone’s lock screen. See United States v. Jones, 565 U.S. 400, 410 (2012) (plurality opinion) (holding Government searched a car by attaching a GPS device to the car); Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it); Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers). The FBI therefore “searched” the phone within the meaning of the Fourth Amendment. See Jardines, 569 U.S. at 5. And because the FBI conducted the search without a warrant, the search was unconstitutional. See Vernonia Sch. Dist., 515 U.S. at 653.
This may have had something to do with the delay between the seizure and the search, which gave the FBI ample opportunity to ask for judicial approval for a search. Sam's phone was seized by police officers on May 15, 2019. The FBI didn't peek at the phone until nearly eight months later: February 13, 2020. As the court notes, the original seizure (and possible search) is completely separate from the FBI's warrantless look months after the original seizure.
In their respective briefs, Mr. Sam and the Government treat the police’s and FBI’s examinations as legally indistinguishable. They are not. The police’s examination took place either incident to a lawful arrest or as part of the police’s efforts to inventory the personal effects found during Mr. Sam’s arrest. The FBI’s examination, by contrast, occurred long after the police had arrested Mr. Sam and inventoried his personal effects. Those examinations present significantly different legal issues…
The government tried to argue a lock screen contains no privacy interests. The court disagrees. Even though the information gleaned might be minimal (the FBI agent was likely looking to verify the phone was still in "airplane" mode), the expectation of privacy remains… as does the warrant requirement. It's the intrusion that matters -- not the government's subjective beliefs about the contours of privacy protections.
The Government argues that the FBI did not need a warrant because Mr. Sam had no reasonable expectation of privacy in his phone’s lock screen. But that expectation is irrelevant. [...][W]hen the Government gains evidence by physically intruding on a constitutionally protected area—as the FBI did here—it is “unnecessary to consider” whether the government also violated the defendant’s reasonable expectation of privacy.
The PD's search -- while more intrusive -- remains in a gray area of law. The court isn't confused. But the record is, making it impossible for the court to consider the Constitutional ramifications of the PD's search of Sam's phone. The department that took control of the seized phone did not clarify what it did to the phone or attempt to justify any actions it took by citing PD policy. Apparently an argument was raised that a lock screen peek was necessary to "inventory" the phone, but the PD submitted nothing that stated this step was normal or needed.
[T]he record does not show why the Tulalip Police Department felt it necessary to power on or manipulate Mr. Sam’s cell phone to properly inventory the phone. The record also does not show whether the Tulalip Police Department’s established procedures require its officers to power on every cell phone that they inventory. Indeed, the record does not even show whether the Tulalip Police Department searched Mr. Sam’s cell phone. Accordingly, the Court cannot resolve Mr. Sam’s motion to suppress as to the police’s examination of the phone.
But that only deals with the PD's possible search of Sam's phone. The FBI's involvement is much clearer and more easily resolved. Powering up a phone to look at the lock screen is a search and requires a warrant. Even if the lock screen contains nothing more than a nickname (as this one did), it may still indicate ownership or possession which has evidentiary value in an investigation and prosecution. If the FBI wants to take a brief look at this information, it needs to get a warrant.

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posted at: 12:00am on 03-Jun-2020
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Private Prison Company Sues Netflix Over Use Of Logo In 'Messiah'

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When we last talked about the Geo Group, a company making hundreds of millions of dollars running private prisons, one of its executives was attempting to improve the company's reputation by constantly removing all the dirty from the Wikipedia page about the company. In trying to do this, of course, the company actually amplified the controversies listed on Wikipedia and, having been caught trying to scrub the internet of its own sins, found itself in headlines as a result. At present, the Wikipedia page still lists those controversies, but more on that in a moment.Because the latest bit of news from Geo Group is that it is suing Netflix over the use of its logo in a fictional prison in Messiah.

The GEO Group, which operates private prisons and detention centers, filed a lawsuit on Wednesday alleging that it had been defamed in two episodes of the Netflix series “Messiah.”The series depicts a mysterious figure who gains a following by performing miracles in the desert. In the third and fourth episodes, the character is detained at an immigration facility in Texas, which is identified with GEO Group logos.The suit claims that the show depicts the facility in a defamatory light. The inmates do not have beds, are kept in overcrowded conditions and surrounded by chain-link fences.
In addition to the claim of defamation, the suit also claims that the Netflix shows use of Geo Group's logos in two of its episodes constitutes trademark infringement. If all of this seems somewhat familiar, it's because it's quite similar to the spat between the infamous Pinkerton Consluting & Investigations company and Take Two Interactive over the latter's Red Dead Redemption 2 game, which portrayed the Pinkertons fictionally in a way that jives with its historical reputation. While in that case the lawsuit was filed by the content producer seeking declaratory judgement that its use of all names and trademarks was protected free speech, it's still the case that Pinkerton ran away from its threats. I would imagine Geo Group will need to do so as well, as this sort of fictional representation is indeed protected on First Amendment grounds.As for the defamation claim, well, we're back to those controversies from the Wikipedia page. Those list overcrowding of its prisons, poor conditions that led to multiple prison riots, and specifically some claims of poor conditions for immigrants awaiting deportation. You know, basically the sort of portrayal the suit itself alleges in Messiah.
“Unlike in ‘Messiah,’ GEO does not house people in overcrowded rooms with chainlink cages at its Facilities, but provides beds, bedding, air conditioning, indoor and outdoor recreational spaces, soccer fields, classrooms, libraries, and other amenities that rebut ‘Messiah’’s defamatory falsehoods,” the complaint states.The suit includes colorful photographs of libraries, classrooms and recreation facilities at GEO detention centers.
Except that it has a reputation for all of the issues above, no matter how many pretty pictures the company includes in its filing. And trademark and defamation laws, whatever teeth they might have, can't pierce the First Amendment's protections on artistic representation in a work of fiction.Netflix tends to be fairly good about fighting back on these sorts of things. Hopefully they'll do so in this case as well.

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posted at: 12:00am on 03-Jun-2020
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Securus Quietly Settles Lawsuit Over Illegally Spying On Inmate Attorney Conversations

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We've noted repeatedly how interstate inmate calling service (ICS) companies have a disturbingly cozy relationship with government, striking (technically buying) monopoly deals that let them charge inmate families $14 per minute. Worse, some ICS companies like Securus Technologies have been under fire for helping the government spy on privileged inmate attorney communications, information that was only revealed in 2015 after Securus was hacked. Given the apathy for prison inmates and their families ("Iff'n ya don't like high prices, don't go to prison, son!") reform on this front has been glacial at best.The 2015 Hacker-obtained data featured 70 million records of phone calls (and recordings of the phone calls themselves), placed by prisoners in at least 37 different states over a two-and-a-half year period. Of particular note were the estimated 14,000 recordings of privileged conversations between inmates and their lawyers:

"This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that's certainly something to be concerned about, said David Fathi, director of the ACLU's National Prison Project. A lot of prisoner rights are limited because of their conviction and incarceration, but their protection by the attorney-client privilege is not."
Two former prisoners and a criminal defense attorney sued Securus for the practice, and last week Securus quietly settled that suit (pdf) after spending years insisting that the recording of privileged calls was a system error. While the company promised to improve its lax use of call recording technology, most of the more significant demands were stripped from the final settlement:
"The lawsuit had sought $5,000 for anyone whose conversation was wrongly recorded - resulting in a damages payout as high as $70m - though the class action's lawyers ultimately dropped the demand after the courts repeatedly ruled against them on what they needed to prove to win the case. A US federal judge in San Diego decided the lawyers would have to prove that Securus intended to record the privileged calls. They appealed the decision, and the Ninth Circuit refused to hear the case."
Securus has promised to cover attorney costs of $840,000 and $20,000 to each of the class representatives while denying any wrongdoing.Granted this is just one small subset of the problem that is Securus' cozy, monopolized relationship with the US law enforcement and prison apparatus, which in addition to aggressively overcharging inmate families for 20 years, has also resulted in scandals relating to the abuse of sensitive location data obtained from mobile carriers. That scandal also resulted in some performative wrist slaps and a few pinky swears as US lawmakers and regulators, with very few exceptions, continue to look the other direction.

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posted at: 12:00am on 02-Jun-2020
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Cops -- Newly Wary Of Looking Like Authoritarian Assholes -- Open Fire On, Arrest Journalists

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There was a window of opportunity for cops following the George Floyd killing. Floyd, suspected of nothing more than passing a fake $20 bill, was killed by Officer Derek Chauvin of the Minneapolis PD. Chauvin placed his knee on Floyd's neck until he was dead. This act lasted for nearly nine minutes -- and for nearly three minutes after Chauvin checked for a pulse and found nothing. Yet he persisted, and none of the three cops around him stopped him.Chauvin has been criminally charged and is under arrest. We'll see where that takes us. But the opportunity was there for the rest of the nation's cops to separate themselves from this "bad apple." Cop defenders ignore what bad apples do to barrels, but we won't. Chauvin is a symptom. He is not the disease.As protests broke out around the nation, law enforcement agencies responded. While a small number attempted to find middle ground with aggrieved citizens, most acted as though they were a law unto themselves in these troubled times.One site got it completely right -- a site that so often offers up hot takes that it is the source of its own meme. Slate, of all places, nailed this call:

Police Erupt in Violence Nationwide
And they did. They shot canisters onto the porches of people not violating curfew declarations. They shot protesters in the face with rubber bullets and tear gas canisters. And they treated the press like every authoritarian nation treats the press: as enemy combatants.
This should come as no surprise. When the shit goes down, no rights will be respected. The Fourth tends to go first, but the First is often right behind it.First, we had to deal with the coronavirus and government grabs for power. And this is where we are now: trying to limit a rational response to hundreds of years of racism, manifested as Officer Chauvin's decision to place his knee on the neck of a black man until long after the man was dead.The streets are filled with cameras. Cops control most of them. But they can't control journalists. So, they seek to intimidate them by making it clear their presence isn't welcomed. The current situation may heighten the response but it has been this way for years. Cops have made it clear -- and they've been backed by the Commander-in-Chief -- the press is the enemy. Journalists record things and those recordings usually make their way to many people -- far more than the average internet rando could hope to rope in. If you can't control the narrative, you can always attempt to control the journalists.When chaos is on the menu, the cops can still try to maintain control of the reporting. And most of their sins will be forgiven because the situation was unforeseeable. But when it's happening, we can see it. We can see what they do and how they react. And, because they react badly, every unblinking eye must be closed. The power must remain centralized, and if that means taking a few journalists out, so be it.

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posted at: 12:00am on 02-Jun-2020
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