SearchAndSeizure
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How an obscure rule lets law enforcement search any computer
With today's amendments to Rule 41, the statute that regulates legal search and seizure, the US Department of Justice has a new weapon to fight cyber crime -- but it's a double-edged sword. The changes expand the FBI's ability to search multiple computers, phones and other devices across the country, and even overseas, on a single warrant. In an increasingly connected world, amending the rules is both necessary for law enforcement agencies and deeply concerning for digital privacy advocates. And for everyday citizens, it's a little bit of both.
Confiscated data must be returned or deleted if it's not covered by a warrant
Picture a scenario where the government's accused you of a crime. During its investigation, law enforcement copies your computer's hard drive to look for evidence of your misdeeds (pursuant to a warrant, of course). Until today, it was unclear if law enforcement could hold onto copies of your data forever. A new Federal Court decision, however, has crystallized things for us all: the government can no longer keep that data indefinitely. United States v. Ganias is the name of the case in question, and the court held that indefinite retention of our digital files is an illegal seizure under the 4th Amendment to the US Constitution.
DoJ: Stingray cellphone tracking device falls under Fourth Amendment, but don't ask about it
In 2008, federal authorities arrested David Daniel Rigmaiden on charges of spearheading a massive identity theft ring in Arizona. Rigmaiden allegedly led this operation from January 2005 to April 2008, harvesting some $4 million off of more than 1,900 fraudulent tax returns. He was ultimately nabbed, however, thanks in part to controversial, and somewhat mysterious tool known as a "stingray" -- a device that effectively acts as a fake cell tower, allowing authorities to locate and track a cellphone even when it's not being used to place a call. Since his arrest, the 30-year-old Rigmaiden has been battling the feds in the U.S. District Court of Arizona, on allegations that their tracking tactics constituted an unlawful search and seizure, thereby violating his Fourth Amendment rights. For more than a year, the Department of Justice has maintained that the use of stingrays does not violate the Fourth Amendment. When it comes to sending data from a mobile device, the DoJ has argued, users should not have a "reasonable expectation" of privacy. Recently, though, the judge overseeing the case has indicated that he will press the feds for more information on how stingrays actually work -- something the government clearly has no desire to disclose. Prosecutors are so reluctant, in fact, that they may be willing to sacrifice their case against Rigmaiden in order to safeguard the stingray's secrecy. Read more about the latest developments, after the break.
Sixth Circuit rules that the government needs a warrant to search your email
Score another baby step for digital democracy: the Sixth Circuit Court of Appeals ruled today that the government must have a search warrant before it can obtain email from your provider. Specifically, the court held in U.S. v Warshak that "it would defy common sense to afford emails lesser Fourth Amendment protection" than traditional communications like phone calls and postal mail. Yes, you'd think that would be obvious, but the specific question had never actually been raised at the appellate level before, so the decision is critically important -- it's likely that other courts will take their cue from the Sixth Circuit when faced with similar issues. As the EFF points out, however, there are several legal exceptions to the warrant requirement in the Stored Communication Act that the organization is still fighting to have amended, but hey -- we'll take every little bit of progress we can.
