The second big 4th Amendment case on the current SCOTUS calendar

[Colonel Hogan]

And whichever side you take in Microsoft v. United States says a LOT about how you view the law.

Monday’s addition joins a series of major criminal-justice cases on the justices’ plate this term. Foremost among them is Carpenter v. United States, in which the high court will ponder whether the government needs a warrant to obtain the location history of a suspect’s cellphone. Because the existing precedents are four decades old, whatever decision the justices reach will likely be a landmark ruling on the Fourth Amendment’s application to modern technology.

At issue in Microsoft is another ubiquity of the digital age: email. Federal prosecutors asked a federal magistrate judge to issue a warrant allowing them to search a Microsoft-provided email account. The prosecutors said they believed it was being used by an unidentified suspect “to conduct criminal drug activity,” according to court filings. The judge granted their request under Section 2703, a provision of the Stored Communications Act of 1986 that governs warrant applications for electronic records.

Microsoft complied with part of the request by providing some records on the account stored within its U.S.-based systems. At the same time, the company declined to hand over any data stored on servers at a data center in Dublin, which included the contents of the email account itself. Though Microsoft can access the account from the United States, that data—the zeroes and ones electromagnetically inscribed on a computer server—is physically located in the Irish capital. Microsoft’s lawyers argued this placed it beyond Section 2703’s intended reach.

The magistrate judge rejected Microsoft’s efforts to nix the warrant, as did a federal district court on appeal. The case then moved to the Second Circuit Court of Appeals, where a three-judge panel sided with the tech giant. In her majority opinion, Judge Susan Carney concluded that Congress did not intend for Section 2703 to apply overseas when it drafted the Stored Communications Act in the mid-1980s.

“In keeping with the pressing needs of the day, Congress focused on providing basic safeguards for the privacy of domestic users,” she wrote. “Accordingly, we think it employed the term ‘warrant’ in the act to require pre-disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States.” Accordingly, Carney ruled, Congress did not explicitly allow the provision to apply overseas.

https://www.theatlantic.com/politics/archive/2017/10/microsoft-email-warrant-case/543027/

We all know that "no warrants shall issue but upon probable cause," but this was a warrant issued clearly upon that standard. And if the 4th Amendment exists for the purpose of securing citizens from "unreasonable" searches and seizures, it just as surely secures the "reasonable" practice of law enforcement on behalf of those same citizens when reasonable searches are authorized BY court issued warrants.

Just as clearly, the material lawfully sought was wholly within the legal possession of Microsoft and under their direct control for possible production. It was not "possessed" by an Irish national. The possessor was Microsoft. Far more importantly, Microsoft was NOT the target of the search. They just held the electronic record. The criminal defendant was the object of the 4th Amendment search. Microsoft is more accurately portrayed as a material witness, and, as the government successfully argued in the two jurisdictions below the 2nd Circuit, in the position of having been served a subpoena which should not run afoul of the statutory deficiency of Section 2703 of the Stored Communications Act.

So why, you might ask, does that deficiency exists? Could Congress not have spelled out their intent better, or did they not, perhaps, do exactly that by NOT attempting to apply Section 2703 to American citizens BEYOND the physical boundaries of the U. S.?

Well, probably not. Beyond the obvious doubt that Congress had any reason to undermine the fulfillment of court-ordered search warrants, the 1986 enactment date of the Stored Communications Act and the relative newness of stored electronic communications at that time is more suspect as an explanation of the statutory deficiency. Computers stored records in 1986, but the computers themselves were traditionally stored in domestic homes and offices. Cloud storage was not at all common, if even contemplated. "Sneaker net" -- physically transporting magnetic storage media from site to site -- was still in vogue.

This case promises to be extremely interesting. It could easily be a 5 - 4 split along traditional liberal/conservative grounds, or Kennedy, Roberts and maybe even Alito could join the liberals for a 6-3, 7-2 decision against the government.

What say you?

Does the law "mean what it says (or DOESN'T say) regardless of what the lawmakers meant, or likely WOULD have meant had they sharper future vision? You know like our 2nd Amendment authors back in the day if they could have foreseen mass casualty shootings at elementary schools? Do appellate courts have the right to "legislate" from the bench to correct that lack of vision in light of technology that was arguably non-existent at the time of legislative drafting?

Funny how we keep coming back to the same arguments regardless of which amendment we are arguing about.

Keep an eye on this one, because that is exactly what's going on.

 

[Sean]

I'm with M$ on this one. The US gubmint doesn't get to issue warrants in foreign countries.

 

[Colonel Hogan]

I'm with M$ on this one. The US gubmint doesn't get to issue warrants in foreign countries.

It's not quite that easy. There is precedent that statutory language in the United States Code referencing "warrants" does not always signify a 4th Amendment search warrant enforceable internationally only by treaty agreements.

There are several statutes where "warrants" have a generic application that includes subpoenas and general court orders that are more easily and quickly enforced outside national borders.

I'm certain that will figure into oral argument and the Court's ultimate decision.

 

[EternalFantasies]

Colonel I have a feeling this will not be too hard for Microsoft to win.

If it was a bank, and someone's properties are being seized. If the bank had a branch in a foreign country, and that someone had moneys there as well, that US bank can't just pull the funds from there too...


As the other questions:

No i don't believe the 2nd amendment would have been different.

And I don't believe appellant courts should legislate fundamental stuff like that in the context of modern technology, especially when judges have been such poor quality individuals...

The law as it is isn't bad, it just needs clear clarifications on how to apply it in our modern world.

At lease, as far as the 2nd, and 4th are concerned.


And I hope Carpenter wins. There is serious breach, and prejudice set, when able to monitor movements prior to a warrant.

 

[Rightguide]

I think Microsoft prevails. Unless established by treaty I don't think the Constitution extends to Congress or the US courts any legal authority over Americans operating under foreign jurisdiction. Just my opinion.

 

[Colonel Hogan]

Colonel I have a feeling this will not be too hard for Microsoft to win.

If it was a bank, and someone's properties are being seized. If the bank had a branch in a foreign country, and that someone had moneys there as well, that US bank can't just pull the funds from there too...


As the other questions:

No i don't believe the 2nd amendment would have been different.

And I don't believe appellant courts should legislate fundamental stuff like that in the context of modern technology, especially when judges have been such poor quality individuals...

The law as it is isn't bad, it just needs clear clarifications on how to apply it in our modern world.

At lease, as far as the 2nd, and 4th are concerned.


And I hope Carpenter wins. There is serious breach, and prejudice set, when able to monitor movements prior to a warrant.

I think Microsoft prevails. Unless established by treaty I don't think the Constitution extends to Congress or the US courts any legal authority over Americans operating under foreign jurisdiction. Just my opinion.

I, too, think Microsoft will probably prevail, not because they "should not" be compelled to obey a court-ordered warrant, but because the statute was, for whatever reason, deficient and that is enough. It is also easily corrected by Congress, which is the accepted way we fix these things.

And that is ALSO precisely why Carpenter should lose. His claim is NOT supported by existing law. If Congress would LIKE to support such a broad claim, then they should write such a law. Until then, Carpenter can pound sand.

 

[EternalFantasies]

And that is ALSO precisely why Carpenter should lose. His claim is NOT supported by existing law. If Congress would LIKE to support such a broad claim, then they should write such a law. Until then, Carpenter can pound sand.

I hope ultimately something that makes sense takes place...

But, to hold a phone, and feel that all my whereabouts are constantly being logged, and can be accessed and suspicions can also be raised to the extent of obtaining warrants, based on such use of technology - the phone - is just too much invasion of my privacy quite frankly.

A privacy the telecom service has a duty to respect.

If you ask me further, I think all logs should be deleted. And only kept where people are 'of interest'.... and set grounds for such interests.

But to come and watch me all the time like that, for no reason, and that "watching" itself, gives reason to suspect......

Well, this is not the US of A.

 

[BotanyBoy]

I hope they just get it over with and finish off 4a swiftly.

 

[Liar]

And that is ALSO precisely why Carpenter should lose. His claim is NOT supported by existing law. If Congress would LIKE to support such a broad claim, then they should write such a law. Until then, Carpenter can pound sand.

According to this here article, Congress is working on something along those lines. Or more leeway for the government to negotiate w other countries. It's pretty vague on the details. Which is usually where the devil is, or so I've been told.

https://arstechnica.com/tech-policy...de-if-us-has-right-to-data-on-worlds-servers/

 

[BotanyBoy]

According to this here article, Congress is working on something along those lines. Or more leeway for the government to negotiate w other countries. It's pretty vague on the details. Which is usually where the devil is, or so I've been told.

https://arstechnica.com/tech-policy...de-if-us-has-right-to-data-on-worlds-servers/

Oh something that might be meaningful!

Unless they find a way to fill their pockets or get more power out of it this thing will get batted around for at least 30 years. The US congress is fucking worthless pit.

 

[Colonel Hogan]

I hope ultimately something that makes sense takes place...

But, to hold a phone, and feel that all my whereabouts are constantly being logged, and can be accessed and suspicions can also be raised to the extent of obtaining warrants, based on such use of technology - the phone - is just too much invasion of my privacy quite frankly.

A privacy the telecom service has a duty to respect.

If you ask me further, I think all logs should be deleted. And only kept where people are 'of interest'.... and set grounds for such interests.

But to come and watch me all the time like that, for no reason, and that "watching" itself, gives reason to suspect......

Well, this is not the US of A.

You can't have this both ways. If you're going to move around all day with your phone on and ready to demand instant communication services, you are going to have to be in immediate contact with the nearest cell tower. And that means having your account status through your service provider verified with the owner of that cell tower. And the ubiquity of modern digital communications depends on something called "frequency reuse." Back in the infancy of mobile radio telephony an entire city might try to use all of the meager available bandwidth for mobile communications on a single transceiver. As a result, only rich people had mobile phones in their cars.

Demand grew as technology allowed phones to diminish in size. But the only way to meet that demand, even with a broader frequency spectrum devoted to the market was frequency reuse -- lower power transceivers with an effective range limited to about a mile. That way, multiple users could be on the exact same frequency without interfering with each other as long as they were in different parts of the city. But that obviously means far more cell towers and dropping and reregistering service with each cell tower facility on-the-fly as you move from place to place.

And the analysis of those cell tower records by the phone companies for traffic patterns and density of service demands so that they can efficiently scale the network and actually make it affordable to YOU are far too valuable NOT to archive. So, no, they are not going to delete those logs just for YOUR "privacy" at the expense of their business model.

And, oh, by the way. Nothing about those phone records, other than the fact that there are a lot of them when you are on the move, is the least bit different from the same call records generated when you use a landline phone in your home. Those records don't belong to you either, and the government's ability to subpoena them from the phone company without your knowledge was long ago upheld by the United States Supreme Court. That Court decision is, and always has been, directly analogous to cell tower switching.

Furthermore, exactly what is there about cell tower records and their ability to reveal your movements that is different from the similar use of a frenzied day of shopping on your credit card? Not only do those purchase receipts show where you've been and at what time, but, depending on the merchant, they may well display your taste in books, movies, food, clothing and much more.

You say you don't use your credit card as much as your phone? Oh. And that's the government's responsibility to carve out a SPECIAL right of privacy regarding your business transaction with a communications company as opposed to every other commercial entity with which you do business? Uh, no, I don't think so.

Finally, how many times was your image recorded on security cameras today? I don't know either. But every time it happened, no one violated your rights, nor will they violate your rights if they CHOOSE to share those images with someone else or provide them in response to a government subpoena. It's simply called 'being out in public.'

In short, your misunderstanding of privacy law is NOT protected by the Constitution.

 

[ryan8558]

Thank you Colonel.

You're always an interesting read.

 

[EternalFantasies]

You can't have this both ways. If you're going to move around all day with your phone on and ready to demand instant communication services, you are going to have to be in immediate contact with the nearest cell tower. And that means having your account status through your service provider verified with the owner of that cell tower. And the ubiquity of modern digital communications depends on something called "frequency reuse." Back in the infancy of mobile radio telephony an entire city might try to use all of the meager available bandwidth for mobile communications. As a result, only rich people had mobile phones in their cars.

Demand grew as technology allowed phones to diminish in size. But the only way to meet that demand, even with a broader frequency spectrum devoted to the market was frequency reuse -- lower power transceivers with an effective range limited to about a mile. That way, multiple users could be on the exact same frequency without interfering with each other as long as they were in different parts of the city. But that obviously means far more cell towers and dropping and reregistering service with each cell tower facility on-the-fly as you move from place to place.

And the analysis of those cell tower records by the phone companies for traffic patterns and density of service demands so that they can efficiently scale the network and actually make it affordable to YOU are far too valuable NOT to archive. So, no, they are not going to delete those logs just for YOUR "privacy" at the expense of their business model.

And, oh, by the way. Nothing about those phone records, other than the fact that there are a lot of them when you are on the move, is the least bit different from the same call records generated when you use a landline phone in your home. Those records don't belong to you either, and the government's ability to subpoena them from the phone company without your knowledge was long ago upheld by the United States Supreme Court. That Court decision is, and always has been, directly analogous to cell tower switching.

Furthermore, exactly what is there about cell tower records and their ability to reveal your movements that is different from the similar use of a frenzied day of shopping on your credit card? Not only do those purchase receipts show where you've been and at what time, but, depending on the merchant, they may well display your taste in books, movies, food, clothing and much more.

You say you don't use your credit card as much as your phone? Oh. And that's the government's responsibility to carve out a SPECIAL right of privacy regarding your business transaction with a communications company as opposed to every other commercial entity with which you do business? Uh, no, I don't think so.

Finally, how many times was your image recorded on security cameras today? I don't know either. But every time it happened, no one violated your rights, nor will they violate your rights if they CHOOSE to share those images with someone else or provide them in response to a government subpoena. It's simply called 'being out in public.'

In short, your misunderstanding of privacy law is NOT protected by the Constitution.

Yea, ok. but here's where you don't understand me CH.

The laws are there to serve me, I am not here to serve the law. Only go by what it says, since, it serves me and others. Especially when progress starts compromising on the spirit of the law when it was written long prior to such progress.

How things are, from business models, to privacy laws, out in public, etc. doesn't mean that's engraved in stone, and that anything new must be a product or continuation of that. They can KMA

Integrating modern technology into the privacy laws is tricky. We drew them in a certain fashion that didn't foresee such possibilities. The State can't come today and say 'tough'.

I may have to digress even on my previous statement where I said the laws are fine, but need clarifications... That depends.

If the State puts a private eye on me, it better have a reason. But the way things are, and with access to such info without a warrant, it means the state has a 'private eye' on me and much info about me..... and so, all the time.

Something not possible realistically prior to information age when privacy laws ++ were drawn.

 

[Liar]

Oh something that might be meaningful!

I'm guessing the problem with mutual agreements and treaties would be that whatever US law enforcment gets to do on foreign servers, those countries' law enforcement gets to do in the US. I don't have a problem with it either way as long as it's on the up and up, it's like a mutual extradition treaty. Just that it could easily get toothless. Anyone could still pull an Assange with their data if they wanted to.

Unless they find a way to fill their pockets or get more power out of it this thing will get batted around for at least 30 years. The US congress is fucking worthless pit.

And there's always that.

 

[Colonel Hogan]

I'm guessing the problem with mutual agreements and treaties would be that whatever US law enforcment gets to do on foreign servers, those countries' law enforcement gets to do in the US. I don't have a problem with it either way as long as it's on the up and up, it's like a mutual extradition treaty. Just that it could easily get toothless. Anyone could still pull an Assange with their data if they wanted to.

Practically speaking, it is far less complicated than that.

Legally speaking, it is every bit that complicated.

Legally speaking, 18 USC §2703 does not contain language addressing material residing on foreign servers. That fact plays into Microsoft's favor.

But practically speaking, it is a distinction without a material difference. It really is irrelevant from a practical standpoint. Extradition treaties are obviously necessary when you NEED the cooperation of a foreign government to physically transport something as large as a human body or physical property FROM within its sovereign territory TO yours.

That wasn't the case here. The information ON the foreign server authored by the defendant in a criminal investigation was entrusted to Microsoft for transmission and storage. The servers in question probably belonged to Microsoft, and even if they were actually owned by a third party, there is little doubt that the contract between Microsoft and that party gave Microsoft unrestricted access to that information. It was fully controlled by Microsoft. No one else, including the government of Ireland, had any substantive claim to that information or could have lawfully prevented Microsoft from complying with the court-ordered warrant.

Microsoft simply refused to do so because of a statutory loophole. That statutory loophole needs to be closed so that criminal investigations duly authorized by court ordered warrants can proceed.

Meanwhile, individuals possessed by an inflated notion of privacy entertain their "eternal fantasy" of being able to go anywhere they choose in public, behave any way they wish, purchase anything they want, and then SELECTIVELY choose as to which of those behaviors and transactions will be protected under their infinitely customized privacy "right."

Neither the loophole nor the fantasy make for reasonable legal principle.

 

[EternalFantasies]

Supreme Court: Warrant generally needed to track cell phone location data CNN Digital

Washington (CNN)The Supreme Court on Friday said the government generally needs a warrant if it wants to track an individual's location through cell phone records over an extended period of time.

The ruling is a major victory for advocates of increased privacy rights who argued more protections were needed when it comes to the government obtaining information from a third party such as a cell phone company.

https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html

 

[EternalFantasies]

Ahem.. Colonel. Check my signature

 

[HisArpy]

Washington (CNN)The Supreme Court on Friday said the government generally needs a warrant if it wants to track an individual's location through cell phone records over an extended period of time.

The ruling is a major victory for advocates of increased privacy rights who argued more protections were needed when it comes to the government obtaining information from a third party such as a cell phone company.

https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html

The problem here is that M$ is the "custodian of record" for the stored data. That the records sought by the warrant are physically outside the US doesn't change the fact that M$ is the custodian of those records and can access them. As such, being a US company, they are subject to US laws to produce those records upon being presented with a lawfully issued warrant regardless of where the records are physically located so long as the custodian can access those documents.

If we extend M$'s argument, Trump's lawyer Cohen, had he stored his data and files off continent, would have prevented the seizure of those records. Do we really want to go down that road as a judicial determination? I don't think so.

 

[RobDownSouth]

It's not quite that easy. There is precedent that statutory language in the United States Code referencing "warrants" does not always signify a 4th Amendment search warrant enforceable internationally only by treaty agreements.

There are several statutes where "warrants" have a generic application that includes subpoenas and general court orders that are more easily and quickly enforced outside national borders.

I'm certain that will figure into oral argument and the Court's ultimate decision.

i'm not trying to pick a fight here, but the bolded statement above seems counter-intuitive.

Care to expand on the sort of US court orders that are "more easily and quickly enforced outside national borders"?

I honestly had no idea that American jurisprudence transcended national boundaries. Are these boundaries reciprocal, i.e. can foreign court demands be executed here?

 

[HisArpy]

i'm not trying to pick a fight here, but the bolded statement above seems counter-intuitive.

Care to expand on the sort of US court orders that are "more easily and quickly enforced outside national borders"?

I honestly had no idea that American jurisprudence transcended national boundaries. Are these boundaries reciprocal, i.e. can foreign court demands be executed here?

It's called Sister-State. And yes, it's enforceable. And often faster in foreign lands that here because their laws are different.

 

[RobDownSouth]

It's called Sister-State. And yes, it's enforceable. And often faster in foreign lands that here because their laws are different.

I looked up "Sister State" in good faith.
"Foreign" in sister state doctrine would appear to apply to the laws of other states, not foreign countries.

Nice try, though. You had me going for a minute.

 

[jaF0]

Skipping down a bit, this goes beyond where a cellphone pings a tower which is somehow implied up there somewhere.

But there's a difference. M$ is a US based company and the server is under their control. It shouldn't matter where that server is located. They own it, they operate it. They have access to it without leaving the US physically.

It would be different if the server were owned by an Irish company with no legal presence in the US.

 

[jaF0]

If we extend M$'s argument, Trump's lawyer Cohen, had he stored his data and files off continent, would have prevented the seizure of those records. Do we really want to go down that road as a judicial determination? I don't think so.

What about all the banking issues of US residents stashing money in offshore banks that have no US presence? The IRS forced their way into those records. And what about ex-pats living overseas using foreign banks? Their records were accessed by the IRS even though the people may not have set foot in the US in years.

Those cases never should have happened.

 

[HisArpy]

I looked up "Sister State" in good faith.
"Foreign" in sister state doctrine would appear to apply to the laws of other states, not foreign countries.

Nice try, though. You had me going for a minute.

Under the Hague Convention, it's sister-state enforcement.

 

[RobDownSouth]

And, oh, by the way. Nothing about those phone records, other than the fact that there are a lot of them when you are on the move, is the least bit different from the same call records generated when you use a landline phone in your home. Those records don't belong to you either, and the government's ability to subpoena them from the phone company without your knowledge was long ago upheld by the United States Supreme Court. That Court decision is, and always has been, directly analogous to cell tower switching.

Furthermore, exactly what is there about cell tower records and their ability to reveal your movements that is different from the similar use of a frenzied day of shopping on your credit card? Not only do those purchase receipts show where you've been and at what time, but, depending on the merchant, they may well display your taste in books, movies, food, clothing and much more.

Carpenter v. United States just came down this morning.

The court held that cell phone location records MUST be obtained via subpoena in a 5-4 vote.

Carpenter was tracked via his cell phone location for 127 days by the Feds, who claimed they did not need a warrant or to show probable cause to a judge.

Carpenter motioned to suppress the evidence based on lack of warrant of probable cause. Court sided with him.