Archive for the ‘Fourth Amendment’ Category

Blog Law Blog Has Never Cooperated with NSA’s Special Source Operations

Thursday, June 6th, 2013


Well, it’s been a busy day for cybernews.

The Washington Post has broken a huge story that the U.S. government, specifically the NSA and the FBI, are accessing e-mails, photos, videos, and other personal data via its “Special Source Operations” – NSA talk for buddy-bud tech companies. The cooperators in this outed “PRISM” program are, according to the Post story, “nine leading U.S. Internet companies”: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.

(Hey, good for AOL getting lumped into the category of “leading U.S. Internet companies.” No doubt they were super-psyched to see that.)

Well, for my part, I can state unequivocally that Blog Law Blog has never cooperated with the NSA or FBI in sharing any data. (But I do use Google Analytics, as do bazillions of others – so be warned.)

In the same news cycle comes the revelation that Chinese government hacking into private American computer systems is far wider and deeper than previously known. They even hacked the 2008 Obama and McCain presidential campaigns.

Unfortunately, I can make no guarantees that Blog Law Blog has not been hacked by the Chinese government. The only real protection I have against being hacked by China is staying below their radar. Which I’m guessing I probably have. (Although I’ve certainly discussed how China is a leading jailer of bloggers, among other things.)

Hey, by the way, did you notice who is missing from that Special Source Operations list? Yup, no Twitter. Good for Twitter. They’ve certainly shown their user-privacy backbone before. And no Amazon or eBay either.

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

The iPhone Was Not Stolen, Not Wrongfully Retained

Tuesday, May 4th, 2010

In a previous post, I argued that it is unfair to blame the person who found Apple’s iPhone prototype for not returning the phone. The issue is an important one, because the adventures of the wayward phone led to a police raid on tech blogger Jason Chen’s home. The short version is this: the finder of the phone tried in earnest to return it, but Apple wouldn’t return his calls. Thus, the iPhone ended up in Chen’s hands.

That’s the fairness issue. Now on to the law.

The statute at issue is California Civil Code § 2080, et seq., which provides:

Any person or any public or private entity that finds and takes possession of any money, goods, things in action, or other personal property … shall, within a reasonable time, inform the owner, if known, and make restitution …

If the owner is unknown or has not claimed the property, the person saving or finding the property shall, if the property is of the value of one hundred dollars ($100) or more, within a reasonable time turn the property over to the police …

So in California, if you find something valuable, you have to give it back to the owner, and if you can’t identify the owner, you have to give the thing to the police. So far so good. But this does not mean that the finder of the iPhone violated the law. The provisions of the California statute don’t apply under these facts because the finder did identify the owner, and did contact the owner. The owner then declined to respond. Apple’s refusal to take back the iPhone takes this out of the circumstances contemplated by the statute.

Reading the statue, it seems pretty clear that there is not intended to be a continuing legal obligation on the finder when the owner has rebuffed attempts to give the property back. In such a case, silence may be reasonably interpreted as abandonment of the property. This is not a matter of the property having been “not claimed” in the words of the statute. This is a matter of the property having been relinquished.

Much of the commentary coming out about the iPhone affair has been critical of Gizmodo and the finder with regard to the lost property aspect. These commentators have focused too much on the fact that this phone was some top-secret hyper-valuable prototype. That may be true, but it’s a fact known only now, a fact made evident because of what Apple eventually did to get the phone back.

But for the legal analysis, we need to look at the facts from the perspective of a reasonable person who does not know the end of the story. Back before the finder sold the phone to Gizmodo, the finder had no reason to believe the phone was anything other than a curious piece of junk. Apple clearly treated it like junk: (1) when they let it wander off at a bar, and (2) when they didn’t respond to efforts made to try to return it to them. It appeared, at best, to be some kind of rejected experiment without any continuing worth.

Now, you might say, surely the finder was on notice of how valuable it was when someone paid $5,000 for it. But if you say that, I say you don’t know Silicon Valley geeks.

The fact is, techies with money often spend it on tech junk. Tech weens will pay large amounts of money for vintage Betamax machines from the 1970s that don’t even work. Try buying a new inbox six-switch Atari 2600 on eBay for a reasonable price. Unless you think north of $2,000 is reasonable for one of the world’s most antiquated gaming systems, you’re out of luck. It is entirely reasonable to think that a prototype phone, worthless to Apple, would be highly prized as a curiosity by passionate geeks.

Bloggers Provide Early Legal Analysis of Jason Chen / iPhone Search

Friday, April 30th, 2010

Some excellent legal commentary on the iPhone/Chen matter:

Orin Kerr on Volokh Conspiracy
Paul Ohm on Freedom to Tinker
Matt Zimmerman on EFF’s Deeplinks Blog

Police Raid of Blogger’s Home Creates Shield Law Question

Wednesday, April 28th, 2010

Silicon Valley’s multi-jurisdictional task force R.E.A.C.T. (“Rapid Enforcement Allied Computer Team”) sounds like something I would make up for a law-school exam hypothetical. But it is not, and on Friday night, Gizmodo blog editor Jason Chen came home to find R.E.A.C.T. seizing computers and servers pursuant to a search warrant issued in regard to a prototype Apple 4G iPhone, which Apple lost and Gizmodo “found,” and then dissected and reviewed. (Gizmodo’s wrap-up.)

COO of Gizmodo owner Gawker Media, Gaby Darbyshire, says the search was illegal under California Penal Code § 1524(g), a journalist shield law. (Gizmodo’s post, with search warrant document images.)

Lyrissa Lidsky on PrawfsBlawg discusses the question of whether bloggers are properly entitled receive protection under the federal Privacy Protection Act of 1980, 42 U.S.C §2000aa et. seq., intended to squelch newsroom search and seizure.

More: Alexandra Jaffe on editoersweblog.org; Nick Bilton on NYT’s Bits blog.