tag:theconversation.com,2011:/global/topics/search-warrants-27269/articlesSearch warrants – The Conversation2022-08-31T19:28:30Ztag:theconversation.com,2011:article/1897372022-08-31T19:28:30Z2022-08-31T19:28:30ZTrump faces possible obstruction of justice charges for concealing classified government documents – 2 important things to know about what this means<figure><img src="https://images.theconversation.com/files/482102/original/file-20220831-20-rof5aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Department of Justice photo shows of documents seized during its Mar-a-Lago search. </span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v1/items/954a1ccd337c4f5a8c588260e2abfefc/preview/AP22243147136668.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Department of Justice via Associated Press </a></span></figcaption></figure><p><em><a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">A court filing by the Justice Department</a> just minutes before midnight on Aug. 30, 2022, was a sharply worded attack on former President Donald Trump’s request for a so-called “special master” – a neutral arbiter – to review the documents <a href="https://www.washingtonpost.com/national-security/2022/08/08/trump-mar-a-lago-search-fbi/">the FBI seized at his estate</a>, Mar-a-Lago, earlier in the month.</em></p>
<p><em>Bottom line: The Justice Department says the documents don’t belong to Trump and says someone has deliberately concealed documents marked classified from a federal grand jury investigation. The department has not yet publicly stated who they believe is guilty of this crime – whether Trump himself, members of his team, or both.</em></p>
<p><em>In the filing, the Justice Department wrote, “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation.”</em></p>
<p><em>This latest revelation has prompted observers to say that <a href="https://www.vox.com/policy-and-politics/2022/8/31/23330643/trump-doj-court-special-master-obstruction">obstruction of justice </a> charges are at stake. But that’s a broad term that covers many wrongful acts. The specific crime at issue here is obstructing a federal investigation.</em></p>
<p><em>The Conversation asked Georgia State University legal expert <a href="http://www.clarkcunningham.org/">Clark Cunningham</a>, an <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">authority on search warrants</a>, to describe the meaning of obstruction, and why Trump may be charged with this crime.</em></p>
<h2>The crime of obstruction, and a particular version of it</h2>
<p>There are <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73">21 different federal crimes</a> that involve obstruction of justice. One of the obstruction laws, called Section 1519, is violated if someone “<a href="https://www.law.cornell.edu/uscode/text/18/1519">knowingly conceals any document with the intent to obstruct</a>” – or block – a federal investigation. That’s obstruction of a federal investigation, and <a href="https://www.law.cornell.edu/uscode/text/18/1519">conviction for this crime</a> can result in up to 20 years of prison. </p>
<p>For example, Jesse Benton, who managed Ron Paul’s 2012 presidential campaign, was convicted of violating Section 1519 when <a href="https://case-law.vlex.com/vid/united-states-v-benton-894813523">he concealed improper campaign payments</a> from the Federal Election Commission. Trump later <a href="https://www.courier-journal.com/story/news/politics/2021/09/20/jesse-benton-indicted-rand-paul-mitch-mcconnell-former-campaign-manager/5791086001/">pardoned Benton</a> <a href="https://www.courier-journal.com/story/news/politics/2020/12/24/trump-pardons-jesse-benton-ex-campaign-manager-rand-paul-mitch-mcconnell/4042657001/">in December 2020.</a></p>
<p>The FBI cites Section 1519 in its <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">Mar-a-Lago search warrant</a> and in the recently <a href="https://www.axios.com/2022/08/26/doj-fbi-affidavit-trump-mar-a-lago">unsealed affidavit</a> submitted to a Florida court to obtain the warrant. But until the Department of Justice’s Aug. 30, 2022, midnight court filing, the public did not know what kind of concealment and what kind of obstruction the department was alleging Trump committed.</p>
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<a href="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="White pages are shown with text, much of it blacked out." src="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482100/original/file-20220831-4764-hl5j8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pages from the FBI’s redacted search warrant affidavit for former President Donald Trump’s Mar-a-Lago estate are shown.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/in-this-photo-illustration-pages-are-viewed-from-the-governments-of-picture-id1418610718">Mario Tama/Getty Images</a></span>
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<h2>Why the government alleges this crime was committed at Mar-a-Lago</h2>
<p>A <a href="https://abc7chicago.com/donald-trump-maralago-fbi-search-classified-documents/12175658">federal grand jury subpoena</a> demanded on May 11, 2022, that Trump turn over all documents with classified markings to the government. </p>
<p>The FBI was <a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">informed by Trump representatives in a sworn statement at Mar-a-Lago on June 3</a> that all documents marked classified were being turned over that day. This statement has now been proved to be false.</p>
<p>Trump was aware of the FBI’s June 3 visit to Mar-a-Lago. In his own court filings he has said that <a href="https://www.documentcloud.org/documents/22164310-trump-motion-for-judicial-oversight-and-additional-relief-8-22-22">he personally met the FBI agents</a> when they arrived.</p>
<p>Despite the sworn statement that no more documents marked as classified remained at Mar-a-Lago, the FBI found 76 documents marked classified in a storage room during its subsequent Aug. 8, 2022 search of Mar-a-Lago. They <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.48.0_1.pdf">also found documents</a> marked “Top Secret” in a container in Trump’s private office. The agents also seized a desk drawer in that office containing documents marked classified that were mixed in with other items, including Trump’s passports.</p>
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<a href="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people gather outside a government building and look at a blacked-out document. Some of them hold cameras." src="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482108/original/file-20220831-18-otpq7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Journalists in West Palm Beach look at the Justice Department’s heavily blacked-out document on Aug. 26, 2022.</span>
<span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v1/items/bbdbb7ee85e44de993efca9c5f3b8703/preview/AP22238621819824.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Jim Rassol/Associated Press</a></span>
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<p>The government believes that the false statement made to the agents on June 3, as well as other evidence they have not yet disclosed, shows <a href="https://s3.documentcloud.org/documents/22272801/justice-dept-response-to-trump-motion-for-special-master.pdf">there was a deliberate plan to conceal</a> documents that should have been given to the grand jury.</p>
<p>Before the Aug. 30 filing, it appeared that Trump’s most serious risk of criminal liability involved <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">violating the Espionage Act</a> by willfully retaining documents relating to national security after he left office. Revelation of these new details emphasize another offense to be added to the list of his possible crimes: obstruction of a federal investigation.</p><img src="https://counter.theconversation.com/content/189737/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A government filing on August 30, 2022, alleges that efforts were likely taken “to obstruct the government’s investigation” into classified documents held at Donald Trump’s Florida home.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1895002022-08-26T19:17:21Z2022-08-26T19:17:21ZFBI’s Mar-a-Lago search warrant affidavit reveals how Trump may have compromised national security – a legal expert answers 5 key questions<figure><img src="https://images.theconversation.com/files/481357/original/file-20220826-14-tztka9.jpeg?ixlib=rb-1.1.0&rect=26%2C26%2C5967%2C3846&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The seal of the Federal Bureau of Investigation is seen outside of its headquarters in Washington, DC on August 15, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-seal-of-the-federal-bureau-of-investigation-is-seen-news-photo/1242529976?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span></figcaption></figure><p><em>The Justice Department on Aug. 26, 2022, <a href="https://www.courtlistener.com/docket/64872441/102/1/united-states-v-sealed-search-warrant/">released an affidavit</a> written by an FBI special agent that was used to obtain a court order for the <a href="https://www.washingtonpost.com/national-security/2022/08/23/trump-records-mar-a-lago-fbi/">FBI’s search of former President Donald Trump’s Florida estate</a> for documents related to national defense and other government records.</em> </p>
<p><em>Large portions of the affidavit were blocked from public view, leaving many questions about details of the investigation. Nonetheless, what is visible shows the FBI had solid evidence that Trump took documents critical to national security to his Mar-a-Lago estate.</em></p>
<p><em>Florida federal Judge Bruce Reinhart had <a href="https://www.reuters.com/world/us/us-justice-dept-poised-release-redacted-affidavit-trump-search-2022-08-26/">ordered on Aug. 22, 2022, that the affidavit</a> – which typically contains key details about an investigation to justify a search warrant – <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.617854/gov.uscourts.flsd.617854.99.0_11.pdf">be made public</a> following a lawsuit from media organizations and other groups. But Reinhart <a href="https://theweek.com/donald-trump/1016198/judge-orders-fbi-to-release-redacted-affidavit-behind-search-of-trumps-mar-a">also said in his order that he would allow</a> the Justice Department <a href="https://www.courtlistener.com/docket/64872441/98/united-states-v-sealed-search-warrant/">to first redact</a> some of the affidavit’s most critical information, like “the identities of witnesses, law enforcement agents, and uncharged parties … the investigation’s strategy, direction, scope, sources, and methods, and … grand jury information.”</em></p>
<p><em>It’s the latest development in the legal conflict over government documents, including national security material, that Trump has kept in violation of the law, according to the affidavit. The document shows that there is what the law calls “<a href="https://www.law.cornell.edu/wex/probable_cause">probable cause</a>” to believe that Trump committed various crimes, including violation of the <a href="https://theconversation.com/you-dont-have-to-be-a-spy-to-violate-the-espionage-act-and-other-crucial-facts-about-the-law-trump-may-have-broken-188708">Espionage Act</a>.</em></p>
<p><em>We asked Georgia State University <a href="http://www.clarkcunningham.org/">legal scholar</a> and <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">search warrant expert</a> Clark Cunningham to answer five key questions to help explain this new development.</em></p>
<h2>1. What is a search warrant affidavit?</h2>
<p>Let’s start with <a href="https://www.law.cornell.edu/wex/search_warrant">a search warrant, which is a court order</a> authorizing government agents to enter property without an owner’s permission to search for evidence of a crime. The warrant further authorizes agents to seize and take away such evidence if they find it. </p>
<p>In order to get a search warrant, the government must provide the court one or more statements made under oath that explain why the government believes a crime has been committed, establishing that there is sufficient justification for issuing the warrant. If the statement is written, it is <a href="https://www.law.cornell.edu/wex/affidavit">called an affidavit</a>. This is why the first sentence of the unsealed affidavit has the words “being duly sworn” following the blacked-out name of the agent making the statement.</p>
<h2>2. What’s the most important takeway from this affidavit?</h2>
<p>Given that a lot of the information on the affidavit has been blacked out, probably the most telling new information is that the FBI agent says that a review of Mar-a-Lago documents the government had already obtained <a href="https://www.cnn.com/2022/08/09/politics/doj-investigation-trump-documents-timeline/index.html">by grand jury subpoena earlier this year</a> were marked in a way that would clearly indicate national security was at risk.</p>
<h2>3. How does the affidavit show national security was at risk?</h2>
<p>The affidavit reveals that some of the documents stored at Mar-a-Lago were <a href="https://www.allacronyms.com/HCS/Humint_Control_System">marked HCS</a>, indicating they were intelligence derived from clandestine human sources – or what we would think of as secret intelligence information provided by undercover agents or sources within foreign governments. If the identity of agents or sources is revealed, their intelligence value is compromised and, even, their lives may be at risk.</p>
<p>There were also documents marked FISA, meaning they were collected under the <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286">Foreign Intelligence Surveillance Act</a>, documents <a href="https://csrc.nist.gov/glossary/term/noforn">marked NOFORN,</a> meaning that the information cannot be released in any form to a foreign government, as well as documents <a href="https://www.nsa.gov/Signals-Intelligence/Overview/">marked SI</a>, meaning they were derived from monitoring foreign governments’ communications.</p>
<h2>4. Is it common for a court to unseal an affidavit while an investigation is underway?</h2>
<p>Because a search warrant affidavit usually lays out the government’s case and identifies witnesses, it is <a href="https://www.timesunion.com/state/article/Why-search-warrants-rarely-unsealed-17369233.php">very rare for a search warrant affidavit to be unsealed</a> if there is an ongoing criminal investigation. That’s why there were so many redactions in the version of the affidavit that was released. If such an affidavit is unsealed, it’s most often later in the process, when criminal charges are actually filed.</p>
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<a href="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A female security guard or police officer is seen walking outside of a courthouse." src="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/481340/original/file-20220826-24-i4xa8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Security officers guard the entrance to the federal courthouse in West Palm Beach on Aug. 18, 2022, as the court holds a hearing to determine if the Trump affidavit should be unsealed.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/security-officers-guard-the-entrance-to-the-paul-g-rogers-federal-picture-id1242577909?s=2048x2048">Chandan Khanna/AFP via Getty Images</a></span>
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<h2>5. What does this say about the investigation and the seriousness of Trump’s alleged crimes?</h2>
<p>The information revealed in the affidavit indicates that the country’s national security and the safety of intelligence agents were possibly put at severe risk when national defense documents were apparently stored in a room at a resort in Florida. </p>
<p>It’s a little confusing – there’s been much <a href="https://www.washingtonpost.com/national-security/2022/08/13/trump-warrant-classified-answers/">talk in the media about classified information</a>. Improper storing of classified information is a crime, but that is not what is being investigated here. A much more serious crime under the Espionage Act is at stake. </p>
<p>Even someone like a former president who initially had lawful possession of national defense information commits a felony by <a href="https://www.law.cornell.edu/uscode/text/18/793">retaining that information after the government demands its return</a>. Trump can not hang on to national defense documents even if, while president, he “declassified” such documents, as <a href="https://www.cnn.com/2022/08/18/politics/trump-claim-standing-order-declassify-nonsense-patently-false-former-officials/index.html">he claims he did</a>. </p>
<p>It’s been documented that a <a href="https://www.nytimes.com/2019/11/25/us/chinese-zhang-mar-a-lago.html">Chinese spy</a> penetrated Mar-a-Lago while Trump was president. It is an unsecured location. If a foreign spy got into that room and walked out with information disclosing U.S. undercover agents around the world, or how we have been monitoring and collecting classified information around the world, I see the potential harm as staggering.</p><img src="https://counter.theconversation.com/content/189500/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A search warrant expert breaks down the affidavit the FBI used to search Mar-a-Lago, and the national security concerns it presents.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1892712022-08-23T23:40:45Z2022-08-23T23:40:45ZTrump’s Mar-a-Lago lawsuit spotlights how difficult search warrants are to challenge – by a criminal suspect or an ex-president – until charges are brought<figure><img src="https://images.theconversation.com/files/480644/original/file-20220823-25-62ver2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mar-a-Lago is shown on Aug. 16, 2022, a week after the FBI's raid. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/maralago-is-seen-august-16-2022-a-week-after-the-fbi-raided-the-home-picture-id1242585509?s=2048x2048">Nathan Posner/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>Some observers say that the lawsuit filed by former President Donald Trump on <a href="https://www.axios.com/2022/08/22/donald-trump-fbi-search-lawsuit">Aug. 22, 2022,</a> challenging the <a href="https://theconversation.com/why-searching-an-ex-presidents-estate-is-not-easily-done-4-important-things-to-know-about-the-fbis-search-of-mar-a-lago-188438">FBI’s recent search</a> of his Mar-a-Lago estate is “filled with <a href="https://www.nytimes.com/2022/08/22/us/politics/trump-warrant-affidavit-reinhart.html">bombastic complaints”</a> and will <a href="https://twitter.com/PoliticusSarah/status/1561844965269012482">“blow up in his face.”</a>.</p>
<p>I am <a href="http://www.clarkcunningham.org/">a legal scholar</a> who is an expert on the various<a href="https://news.gsu.edu/2022/07/06/cunningham-legal-voice-for-jan-6-hearings-2020-presidential-election-investigation/"> Trump investigations</a> and the <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">constitutional protections</a> against <a href="https://theconversation.com/in-getting-new-clinton-emails-did-the-fbi-violate-the-constitution-67906">wrongful searches</a>. </p>
<p>I think it is important to recognize that <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.1.0.pdf">Trump’s lawsuit</a> raises a very serious point: Current federal law does not provide good procedures to protect the rights of people subjected to a search warrant. </p>
<h2>Federal law’s limits on searches</h2>
<p>The Constitution protects “<a href="https://constitution.congress.gov/constitution/amendment-4/">the right of the people to be secure in their houses and papers</a>” and requires that search warrants must “<a href="https://constitution.congress.gov/constitution/amendment-4/">particularly describe</a>” the place to be searched and the things to be seized. </p>
<p><a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.1.0.pdf">Trump’s lawsuit </a> asserts that these Constitutional protections were violated both by the broad language of the search warrant and the way it has been carried out by the FBI. </p>
<p><a href="https://www.bbc.com/news/world-us-canada-62640448">Trump’s lawsuit</a> asks for a judge to halt the FBI’s review of what it seized from Mar-a-Lago and the appointment of an independent judicial officer to conduct the review instead.</p>
<p>Trump also asks for a more detailed receipt of what the FBI took, and for the agency to return all of the items not properly seized. </p>
<p>Granting these requests might both be fair to Trump and also in the public interest, by bolstering public confidence in the handling of the search, which has been <a href="https://www.washingtonpost.com/national-security/2022/08/20/fbi-comes-under-threat-its-leader-tries-stay-out-view/">criticized by Trump and his supporters </a>as politically motivated, intrusive and overbroad.</p>
<p>However, as shown by <a href="https://www.politico.com/news/2022/06/27/eastman-phone-seized-jan-6-00042680">a similar lawsuit </a>recently filed by one of Trump’s former lawyers, John Eastman, people who are subjected to a federal search have limited ability to challenge its legality.</p>
<p>Eastman’s <a href="https://storage.courtlistener.com/recap/gov.uscourts.nmd.476086/gov.uscourts.nmd.476086.1.0_1.pdf">cellphone was taken</a> by federal agents as he was leaving a restaurant in <a href="https://www.washingtonpost.com/national-security/2022/06/27/eastman-phone-seized-fbi-jan6/">June 2022</a>, amid a <a href="https://www.theguardian.com/us-news/2022/jul/16/john-eastman-cell-phone-seized-january-6">federal investigation </a>into his alleged attempt to overturn the 2020 election results. </p>
<p>The <a href="https://storage.courtlistener.com/recap/gov.uscourts.nmd.476086/gov.uscourts.nmd.476086.1.1.pdf">search warrant</a> authorized seizing “any and all electronic or digital devices and all information in such devices” without identifying what crime was being investigated. Eastman <a href="https://www.cbsnews.com/news/trump-attorney-john-eastman-says-fbi-agents-seized-his-phone-according-to-new-lawsuit/">challenged the warrant</a> on the same grounds as Trump’s lawsuit, claiming it authorized an overbroad search of everything stored on his phone. </p>
<p>Eastman tried to get a federal court to halt FBI examination of his phone by invoking a Federal Rule of Criminal Procedure, or Rule 41, which says “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">a person aggrieved by an unlawful search and seizure</a>” may seek return of the seized property. In response, the government told the court that Eastman can only use Rule 41 to recover property for which he can show an urgent need. Eastman cannot use Rule 41 to challenge the constitutionality of the FBI seizing his phone or to prevent the law enforcement agency from reading attorney-client communications stored on the phone, the government said. </p>
<p>Trump’s lawsuit faces the same problem. Apart from Rule 41, there is currently no clear way under federal law to challenge the validity of a search unless and until criminal charges are filed. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People hold flags and signs that say 'The FBI is corrupt' and 'crimes happen here' on a street corner on a sunny day." src="https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480647/original/file-20220823-13-vdkxeh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Demonstrators protest the FBI’s recent raid of Mar-a-Lago outside the agency’s Chelsea, Mass., building on Aug. 21, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/demonstrators-wave-flags-and-hold-signs-as-they-protest-the-recent-picture-id1242639842?s=2048x2048">Joseph Prezioso/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>An often overlooked omission</h2>
<p>This loophole in federal law – and American law generally – means that court cases about searches are almost always in the context of criminal prosecution. </p>
<p>Because those making court arguments for rights against improper searches are usually accused or convicted criminals, the general public has paid little attention to the fact that search <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">warrant procedures are an exception</a> to a fundamental principle of American law, which is that people <a href="https://theconversation.com/restoring-transparency-and-fairness-to-the-fbi-investigation-of-clinton-emails-67967">have the right to participate</a> in judicial proceedings regarding their rights. </p>
<p>As pointed out by the government <a href="https://www.courtlistener.com/docket/64872441/united-states-v-sealed-search-warrant/">in opposing the unsealing of the FBI affidavit </a>used to obtain the Mar-a-Lago warrant, federal courts consistently allow investigative records to be sealed from both the subjects of investigation and the public. A judge’s initial decision to issue a search warrant is almost always based only on a one-sided presentation by the government. </p>
<p>Not only do subjects of a requested warrant have no chance to present their side to the judge, but they do not even know about the warrant process until the government is at the door, warrant in hand. And then, <a href="https://storage.courtlistener.com/recap/gov.uscourts.flsd.618763/gov.uscourts.flsd.618763.1.0.pdf">as Trump’s lawsuit complains</a>, this secrecy continues after the search is conducted as the government reviews what it seized.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large brown residential appearing building is shown on a day with dark clouds." src="https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/480648/original/file-20220823-23-rz4lgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mar-a-Lago is seen on Aug. 16, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/maralago-is-seen-august-16-2022-a-week-after-the-fbi-raided-the-home-picture-id1242585654?s=2048x2048">Nathan Posner/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s request for a ‘special master’</h2>
<p>The FBI is now <a href="https://www.politico.com/news/2022/08/22/trump-files-suit-special-master-mar-a-lago-search-00053196">using a “taint team”</a> for the Mar-a-Lago search and seizure of classified documents. This is a special group of agents designated to do an initial review of seized materials. </p>
<p>These screening officers then decide what materials can be turned over for further review by FBI agents doing the actual criminal investigation. In Trump’s case, however, the standards for such review are not public and nothing in the court record indicates review standards have been submitted for court approval. </p>
<p>Even if review criteria are clearly defined, the practice of using FBI agents for screening has been <a href="https://casetext.com/case/united-states-v-seal-in-re-search-warrant-issued-june">criticized by some courts</a> as providing insufficient protection against improper use of items seized during a search.</p>
<p>For example, <a href="https://law.justia.com/cases/federal/appellate-courts/F3/454/511/489658/">one federal appellate court</a> described taint teams as putting the fox in charge of guarding the hen house. Even on the taint team, FBI agents may still have a “<a href="https://casetext.com/case/united-states-v-seal-in-re-search-warrant-issued-june">prosecutorial interest</a>” that could lead them to hand over documents to investigators that should be protected from government view. </p>
<p>This kind of action, whether because of <a href="https://law.justia.com/cases/federal/appellate-courts/F3/454/511/489658/">malice, neglect or simply an honest mistake</a>, can take place before the subjects of the search have an opportunity to seek court protections for their documents.</p>
<p>That court did what the Trump lawsuit is now requesting – <a href="https://www.lexology.com/library/detail.aspx?g=74560be8-27fc-4ff3-bdaf-f02e56138634">it ordered</a> that a temporary judicial officer, called a “<a href="https://www.law.cornell.edu/wex/special_master">special master</a>,” take over the initial review, to exclude documents that should not be seen by the government. </p>
<p>There are other instances of commissioning a person to do such a job. In 2018, for example, when federal agents <a href="https://www.nytimes.com/2018/04/26/nyregion/michael-cohen-investigation-special-master.html">executed search warrants</a> against Trump’s former personal attorney, Michael D. Cohen, a retired federal judge was appointed as a special master to screen everything that was seized before it could be turned over to prosecutors. </p>
<p>The justification for placing an independent judicial officer between the FBI and the trove of documents seized at Mar-a-Lago is underscored by the broad way the <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">search warrant</a> was written. </p>
<p>The warrant not only authorized the FBI to seize classified documents, but it also allowed the FBI to seize “any other containers/boxes” that were “stored or found together” with boxes containing classified documents. </p>
<p>This means it is possible that some of the 26 boxes listed on <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">the FBI’s property receipt</a> were seized not because they contained evidence of a crime but simply because they were stored in the same location as classified documents. Without something like the protections of a special master procedure, FBI agents could end up reading thousands of pages taken from Trump’s home that have no relevance to the suspected crimes listed in the warrant.</p>
<p>Perhaps now that the one-sided nature of search warrant procedures is being challenged by a former president, this problem will get new attention.</p><img src="https://counter.theconversation.com/content/189271/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s lawsuit against the FBI has been criticized as baseless. But it spotlights a loophole in federal law that doesn’t protect people’s rights when they are subjected to a search warrant.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1886842022-08-12T22:28:00Z2022-08-12T22:28:00ZUnsealed court documents show the FBI was looking for evidence Trump violated the Espionage Act and other laws – here’s how the documents seized show possible wrongdoing<figure><img src="https://images.theconversation.com/files/478977/original/file-20220812-15-ho14f1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A police officer drives by Mar-a-Lago on August 9, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/local-law-enforcement-officers-are-seen-in-front-of-the-home-of-picture-id1242402806?s=2048x2048">Giorgio Viera/AFP via Getty Images </a></span></figcaption></figure><p><em>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">FBI recovered</a> confidential and top-secret items from Mar-a-Lago during its Aug. 8, 2022, search of the estate – pointing to former President Donald Trump’s potential violation of several federal laws.</em> </p>
<p><em>A Florida federal judge – the same one who issued the warrant to search Trump’s estate – <a href="https://www.courthousenews.com/wp-content/uploads/2022/08/trump-search-warrant-unseal-order.pdf">ordered on Aug. 12, 2022</a>, that the document be made public – along with an inventory of items seized during the FBI’s raid.</em> </p>
<p><em>The unsealed documents <a href="https://www.nytimes.com/live/2022/08/12/us/trump-news">seem to indicate</a> that the U.S. Department of Justice believes <a href="https://www.wsj.com/articles/fbi-recovered-eleven-sets-of-classified-documents-in-trump-search-inventory-shows-11660324501?st=ql9humks0e7gckv&reflink=desktopwebshare_permalink">Trump may have violated</a> the Espionage Act, as well as other criminal laws relating to the handling of public records.</em></p>
<p><em><a href="http://www.clarkcunningham.org/">Clark Cunningham</a>, Georgia State University legal scholar and an <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">expert on search warrants</a>, explains how this new information connects to possible criminal wrongdoing by the former president.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man wearing a black suit is seen walking to a brown lectern, with the American flag standing to his left." src="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478971/original/file-20220812-2527-qta4ii.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Attorney General Merrick Garland discussed the FBI’s search on Aug. 11, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/attorney-general-merrick-garland-arrives-to-deliver-a-statement-at-picture-id1242440351?s=2048x2048">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<h2>These laws were potentially violated</h2>
<p>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">released warrant</a> authorized the FBI to search for evidence that Trump has violated three key laws.</p>
<p>First, there is the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>, which applies to possession of information related to the national defense that could be used to harm the U.S. or aid a foreign adversary. This law applies to someone who, like Trump, initially had lawful possession of such information but who, after their time in office ended, refuses to return it to the government.</p>
<p>Then, there is <a href="https://www.law.cornell.edu/uscode/text/18/1519">obstruction of justice</a>, which includes concealing documents to obstruct a federal investigation. </p>
<p>Finally, there is the <a href="https://www.law.cornell.edu/uscode/text/18/2071">Public Records statute</a>, which prohibits someone entrusted with a public record from “concealing” that document. </p>
<h2>What’s in the inventory</h2>
<p>The inventory of items taken by the FBI from Mar-a-Lago apparently shows Trump may have violated these laws in a number of different ways. </p>
<p>The <a href="https://int.nyt.com/data/documenttools/mar-a-lago-search-warrant-and-inventory/6478c5980764438f/full.pdf">inventory shows</a> that FBI agents seized documents designated “SCI,” which refers to <a href="https://csrc.nist.gov/glossary/term/sensitive_compartmented_information">Sensitive Compartmented Information</a>. In simple terms, this is classified information that comes from intelligence sources – and must be handled only within secured government locations. </p>
<p>Because this kind of sensitive information can reveal both methods and procedures for collecting intelligence – including the identity of undercover agents in hostile countries – the presence of such materials at Mar-a-Lago may be a violation of the <a href="https://www.law.cornell.edu/uscode/text/18/793">Espionage Act</a>, if Trump was willfully retaining this information after the government demanded its return.</p>
<p>The inventory also refers to numerous “top-secret” documents. <a href="https://www.law.cornell.edu/cfr/text/18/3a.11">Federal law defines</a> <a href="https://theconversation.com/heres-how-government-documents-are-classified-to-keep-sensitive-information-safe-188687">this as</a> “information or material which requires the highest degree of protection” and could threaten national security. The FBI’s discovery of top-secret documents could corroborate <a href="https://www.washingtonpost.com/national-security/2022/08/11/garland-trump-mar-a-lago/">The Washington Post’s report</a> that the FBI search included classified documents related to nuclear weapons. The FBI also seized documents designated “secret” and “confidential.”</p>
<p>All told, the FBI removed 27 boxes and other individually listed items, including photographs. </p>
<p>Trump received a federal subpoena <a href="https://thehill.com/blogs/blog-briefing-room/news/3597357-doj-subpoenaed-trump-months-before-mar-a-lago-search-report/">in the spring of 2022</a> to return documents taken from the White House. </p>
<p>So if the inventory includes items that should have been returned in response to the subpoena, but were not, that can be evidence of obstruction of justice and concealment of public records. </p>
<h2>A defense that might not hold</h2>
<p><a href="https://www.nytimes.com/2022/08/10/nyregion/trump-fbi-planting-evidence.html">Trump has suggested</a> that the FBI may have planted evidence during its search. </p>
<p>However, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">federal rules about search warrants</a> provide strong protection against such a possibility, by requiring that a government officer present when a search warrant is carried out “prepare and verify an inventory” of property seized in the presence of “another officer” and “the person from whom, or from whose premises, the property was taken.” </p>
<p>The officer must then “give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken,” according to these rules. </p>
<p><a href="https://www.nytimes.com/live/2022/08/11/us/garland-trump-statement-doj#garland-fbi-trump-transcript">U.S. Attorney General Merrick Garland said</a> during his Aug. 11 statement about the search that these procedures were followed. “Copies of both the warrant and the FBI property receipt were provided on the day of the search to the former president’s counsel, who was on site during the search,” Garland said.</p>
<p>The federal rules say that if the owner of the premises is not present, another “credible person” can verify the inventory – in this case, the unsealed records confirm that Trump’s attorney, Christine Bobbs, acknowledged receipt of the inventory at 6:19 p.m. on Aug. 8, 2022.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man with white hair, wearing a navy suit and red tie, waves as he walks to a black SUV. Behind him a man wearing sunglasses and a dark suit stands." src="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478975/original/file-20220812-4578-lxxzbs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump waves while walking to his car in New York City on Aug. 10, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/former-us-president-donald-trump-waves-while-walking-to-a-vehicle-of-picture-id1242419266?s=2048x2048">Stringer/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Limited precedent for unsealing these types of documents</h2>
<p>It’s relatively rare for a judge to unseal court records of a search warrant, unless an actual criminal prosecution is underway. </p>
<p>One other notable exception occurred in December 2016 when a New York federal court issued <a href="https://lasvegassun.com/news/2016/dec/20/court-to-unseal-clinton-email-search-warrant/">an unsealing order </a> for <a href="https://www.politico.com/story/2016/12/clinton-email-investigation-search-warrant-released-232852">the Oct. 30, 2016, search warrant</a> requested by former FBI Director James Comey to investigate emails improperly stored by former Secretary of State Hillary Clinton. </p>
<p>Unlike the Aug. 12, 2022 order regarding Trump, the unsealing of the Clinton-related warrant included the underlying affidavit. An affidavit is a statement made under oath to the issuing judge to obtain the warrant. </p>
<p>Disclosure of these documents provided the basis for a <a href="https://www.politico.com/story/2016/12/clinton-email-investigation-search-warrant-released-232852">firestorm of criticism</a> by Clinton allies that there was insufficient evidence to support the FBI’s warrant application. </p>
<p>As explained in a judge’s October 2016 order to make the search warrant <a href="http://www.politico.com/f/?id=00000159-184d-d63b-af7f-f97f95f80001">for the Clinton investigation public</a>, warrant application proceedings “have historically been highly secretive in nature and closed to the press and public.” In that case, the judge said that in deciding whether to unseal, <a href="http://www.politico.com/f/?id=00000159-184d-d63b-af7f-f97f95f80001">courts must consider</a> both the government’s interest in not compromising an ongoing criminal investigation and the need to protect the privacy and reputation of the person subject to the search who may never be charged with a crime. </p>
<p>However, for the Mar-a-Lago warrant, both the government and Trump, the subject of the search, <a href="https://news.yahoo.com/trump-says-wont-oppose-release-051945792.html">consented to the unsealing</a>.</p>
<p>True to <a href="https://www.npr.org/2016/03/16/126614141/merrick-garland-has-a-reputation-of-collegiality-record-of-republican-support">his reputation</a> for careful judgment, Garland went by the book in response to an avalanche of attacks from Trump allies demanding transparency about the search. The warrant and inventory have now been released for all to see through a proper court procedure – which Trump <a href="https://www.pbs.org/newshour/politics/donald-trump-wont-object-to-release-of-mar-a-lago-search-warrant">publicly endorsed</a>.</p><img src="https://counter.theconversation.com/content/188684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal scholar analyzes the unsealed warrant for the FBI’s recent search of Donald Trump’s home and the list of materials seized there. The implications for Trump are potentially grave.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1884382022-08-09T18:12:53Z2022-08-09T18:12:53ZWhy searching an ex-president’s estate is not easily done – 4 important things to know about the FBI’s search of Mar-a-Lago<figure><img src="https://images.theconversation.com/files/478330/original/file-20220809-15076-ffr1dv.jpg?ixlib=rb-1.1.0&rect=0%2C100%2C4496%2C2887&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Palm Beach police officers stand near the Florida home of former President Donald Trump on Aug. 8, 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/palm-beach-police-officers-keep-watch-near-the-home-of-former-donald-picture-id1242395984?s=2048x2048">Eva Marie Uzcategui/Getty Images </a></span></figcaption></figure><p><em>The FBI’s raid of former President Donald Trump’s estate on Aug. 8, 2022, caught Trump by surprise – and prompted immediate speculation about exactly <a href="https://thehill.com/homenews/3594254-heres-what-we-know-about-the-fbi-search-of-trumps-mar-a-lago/">why and how</a> the law enforcement agency secured a search warrant.</em></p>
<p><em>“My beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents. … They even broke into my safe!” <a href="https://twitter.com/kyledcheney/status/1556775612920074240">Trump said in a statement</a> released through his political action committee, Save America.</em></p>
<p><em>Trump brought <a href="https://www.washingtonpost.com/politics/2022/02/12/trump-15-boxes/">15 boxes of classified materials</a> with him to Mar-a-Lago when he left the White House, and delayed returning the materials to National Archives officials for months.</em></p>
<p><em>The FBI and the Department of Justice have not commented on the raid, but the Justice Department is <a href="https://www.npr.org/2022/04/07/1091431136/justice-department-investigating-trumps-possible-mishandling-of-government-secre">known to be investigating</a> how Trump possibly mishandled government secrets. Trump is also facing other potential charges from the <a href="https://www.nytimes.com/2022/07/19/us/georgia-trump-electors.html">state of Georgia</a> stemming from his alleged interference with the 2020 elections.</em></p>
<p><em>Georgia State University legal scholar <a href="http://www.clarkcunningham.org/">Clark D. Cunningham</a>, an expert on <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">search warrants</a> and the criminal <a href="https://news.gsu.edu/2022/07/06/cunningham-legal-voice-for-jan-6-hearings-2020-presidential-election-investigation/">investigations of interference</a> in the 2020 election, explains what could have led to the raid and what the raid tells us about the state of the federal investigation into Trump’s activities.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older white man is shown seated at a desk, gesticulating with his mouth open, in an ornate-looking room. In front of him is a group of reporters and camera people with equipment." src="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478308/original/file-20220809-14165-ffr1dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks to the press from his Mar-a-Lago resort in Palm Beach, Fla., in 2018.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/president-donald-trump-speaks-to-the-press-after-talking-to-members-picture-id1064313534?s=2048x2048">Mandel Ngan/AFP via Getty Images</a></span>
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</figure>
<h2>1. There are legal hurdles to getting a search warrant</h2>
<p>The <a href="https://constitution.congress.gov/constitution/amendment-4/">U.S. Constitution requires</a> that all search warrants “particularly describe the place to be searched and the … things to be seized.” </p>
<p>This requirement can be traced in part to a <a href="https://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">famous British case from the 1760s</a> when agents of King George III searched the house of <a href="https://www.britannica.com/biography/John-Wilkes">John Wilkes</a>, an opposition member of Parliament, for incriminating papers. The warrant they used was condemned by the courts as a “general warrant” because it did not specifically name Wilkes, his house or the seized papers. </p>
<p>Courts and commentators also criticized the Wilkes warrant because it was based on mere suspicion. The U.S. founders looked to the Wilkes warrant as an example of what the Constitution should prevent and added <a href="https://constitution.congress.gov/constitution/amendment-4/">the Fourth Amendment</a> – requiring that search warrants only be issued “upon probable cause, supported by Oath.” </p>
<p>Criminal <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">procedure laws</a> help enforce these constitutional requirements by requiring search warrants to particularly describe “evidence of a crime … or other items illegally possessed.” </p>
<p>Only judges can issue search warrants, and they must find, <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">based on sworn testimony</a>, that there is probable cause that such evidence or items will be found in the location described in the warrant.</p>
<p>This means that a judge must have found that there was probable cause that either a crime had been committed, or that Trump was illegally possessing items taken from the White House. The FBI’s request for a search warrant might also have indicated concern that these documents would either be destroyed or moved off of the premises.</p>
<h2>2. There are also potential policy hurdles</h2>
<p>In February 2020, then-Attorney General William Barr <a href="https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html">announced new restrictions </a> that require the FBI and other law enforcement agencies to <a href="https://www.nytimes.com/2020/02/05/us/politics/barr-2020-investigations.html">get permission</a> from the Attorney General before investigating presidential candidates or their staff. </p>
<p>Barr’s successor, Attorney General Merrick Garland, has <a href="https://www.nytimes.com/2022/07/28/us/politics/trump-garland-investigation.html">kept this policy in place</a> – keeping in line with general <a href="https://www.justice.gov/about">Justice Department guidelines</a> that try to prevent politically charged investigations. </p>
<p>This means that this search would not have taken place without Garland’s approval. Given the generally strong tradition of <a href="https://www.lawfareblog.com/independence-and-accountability-department-justice">political independence</a> at the Justice Department, it is not surprising that President Joe <a href="https://www.newsweek.com/did-biden-know-about-fbi-search-trumps-mar-lago-what-we-know-1732190">Biden and</a> his aides <a href="https://www.vox.com/policy-and-politics/2022/8/9/23297734/donald-trump-mar-a-lago-fbi-raid">were not informed</a> in advance of the raid and found out on Twitter. </p>
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<a href="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&rect=100%2C18%2C4055%2C2747&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer leans against a police car while a woman walks past. Behind them are large white gates, shining blue and red because of the police lights." src="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&rect=100%2C18%2C4055%2C2747&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478313/original/file-20220809-18-tvikwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump was not at Mar-a-Lago when the FBI searched the premises on Aug. 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/police-car-is-seen-outside-former-us-president-donald-trumps-in-picture-id1242395292?s=2048x2048">Giorgio Viera/AFP via Getty Images</a></span>
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<h2>3. The FBI might have found more than it was looking for</h2>
<p>The Supreme Court ruled in a <a href="https://supreme.justia.com/cases/federal/us/496/128/">1990 case</a> that police executing a warrant that authorized searching for the proceeds of a robbery could also lawfully seize weapons that were in plain view. </p>
<p>Assuming that the FBI’s warrant authorized only searching for classified documents taken from the White House, if the FBI found “in plain view” other evidence of crimes related to the 2020 election or <a href="https://www.cnn.com/2022/07/10/politics/jan-6-us-capitol-riot-timeline/index.html">Jan. 6, 2021, Capitol insurrection</a>, they likely could have taken that, as well. </p>
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<a href="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A few people - one of them yelling - are shown with Trump flags and American flags on a dark evening on the street." src="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/478310/original/file-20220809-18-bybrig.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supporters of former President Donald Trump protest outside his Mar-a-Lago home following the FBI’s raid on Aug. 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/supporters-of-former-president-donald-trump-shout-as-kamrel-eppinger-picture-id1242396102?s=2048x2048">Eva Marie Uzcategui/Getty Images</a></span>
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<h2>4. There may be a connection with Trump’s possible election interference</h2>
<p>A federal <a href="https://www.nytimes.com/2022/05/12/us/politics/justice-department-trump-classified.html">grand jury, requested by the Justice Department, has been investigating</a> the presence of potentially classified documents at Mar-a-Lago since at least early May 2022. It seems likely that something has happened recently to cause this urgent search. One possibility is that the search warrant was issued based on information gathered in <a href="https://www.theguardian.com/us-news/2022/aug/08/donald-trump-fbi-raid-explainer">one or more of the criminal investigations</a> involving 2020 election interference. </p>
<p>In particular, the Department of Justice on July 12, 2022, obtained a <a href="https://int.nyt.com/data/documenttools/filing-by-thomas-windom-in-u-s/c8958e56f1860a88/full.pdf">warrant to search the cellphone</a> of <a href="https://www.pbs.org/newshour/politics/who-is-john-eastman-and-why-is-he-important-to-the-jan-6-hearings">John Eastman</a>, Trump’s former lawyer. As hearings by the Jan. 6 House committee have revealed, Eastman was a <a href="https://www.npr.org/2022/06/17/1105600072/who-is-john-eastman-the-trump-lawyer-at-the-center-of-the-jan-6-investigation">primary architect of the plan</a> to block Congress from certifying Biden’s victory.</p>
<p>There seems little doubt that the Justice Department had compelling, perhaps overwhelming, legal justifications for conducting this unprecedented search of a former president’s home. However, the secrecy required for Justice Department investigations and grand jury proceedings means that the country will have to be patient – the justifications for the search may become public only if and when criminal charges are filed.</p><img src="https://counter.theconversation.com/content/188438/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s a high bar for a federal judge to grant a search warrant, indicating there is probable cause that Trump committed a crime by holding classified documents at Mar-a-Lago.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1361762020-04-15T07:30:59Z2020-04-15T07:30:59ZExplainer: what did the High Court find in the Annika Smethurst v AFP case?<figure><img src="https://images.theconversation.com/files/327915/original/file-20200415-153302-1948roq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Australian Federal Police (AFP) attracted global <a href="https://www.washingtonpost.com/opinions/2019/06/07/australias-raids-journalists-reflect-creeping-surveillance-state/">criticism</a> for executing a raid on the Canberra home of journalist Annika Smethurst on June 4 2019.</p>
<p>The raid was prompted by an April 2018 <a href="https://www.dailytelegraph.com.au/news/nsw/spying-shock-shades-of-big-brother-as-cybersecurity-vision-comes-to-light/news-story/bc02f35f23fa104b139160906f2ae709">report</a> on a “top secret” memo leaked from within the Department of Defence. The memo revealed a proposal to grant the Australian Signals Directorate (ASD) unprecedented powers to secretly access Australians’ digital information without a warrant. </p>
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Read more:
<a href="https://theconversation.com/the-high-court-rules-in-favour-of-news-corp-but-against-press-freedom-136177">The High Court rules in favour of News Corp, but against press freedom</a>
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<p>Now the High Court <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2020/14.html">has ruled</a> the warrant authorising the search of Smethurst’s property failed to meet the most basic legal requirements.</p>
<p>This decision reflects serious weaknesses in how warrants are issued and underscores the need for urgent reform. </p>
<h2>The importance of warrants</h2>
<p>You don’t need to watch many crime shows to appreciate that warrants are critical to law enforcement. Search and seizure powers are key to collecting the evidence needed to charge and prosecute offenders. </p>
<p>Warrants put limits on the scope of these powers. They require officers to apply to an independent authority for permission to make incursions into civil liberties, privacy and personal space. </p>
<p>Warrant laws aim to ensure these powers are justified and proportionate. They have been designed to strike a balance between law enforcement and liberties – albeit in a way that favours the public interest in the investigation and prosecution of crimes. </p>
<p>With these things in mind, a warrant must meet some basic criteria. It must identify the offence being investigated, the premises or person being searched, and the kinds of evidential material being searched for.</p>
<p>These requirements help ensure the person and the police understand what the investigation is about. </p>
<h2>The problem with the Smethurst warrant</h2>
<p>In the course of its investigation into the leaked ASD memo, the AFP applied to a magistrate for search and computer access warrants in relation to Smethurst. </p>
<p>Whilst Smethurst complied with the warrant and cooperated with the AFP, she soon launched a High Court challenge to the warrant on a number of grounds. These included a constitutional challenge to the government secrecy offence that the AFP was investigating.</p>
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<strong>
Read more:
<a href="https://theconversation.com/explainer-what-are-the-media-companies-challenges-to-the-afp-raids-about-119382">Explainer: what are the media companies' challenges to the AFP raids about?</a>
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<p>The High Court did not resolve the constitutional point. Instead, all seven justices found the warrant was invalid for not meeting the basic requirements for a valid warrant. The court split on whether this finding entitled Smethurst to have the seized information either returned to her or destroyed (a narrow majority of the court held that it did not and simply declared the warrant invalid). </p>
<p>The warrant’s invalidity was based on two findings. </p>
<p>First, the warrant failed to adequately identify the offence being investigated. The description in the warrant was ambiguous, confusing and, as Justice Edelman put it,</p>
<blockquote>
<p>lacked the clarity required to fulfil its basic purposes of adequately informing Ms Smethurst why the search was being conducted and providing the executing officer … reasonable guidance to decide which things came within the scope of the warrant.</p>
</blockquote>
<p>But ambiguity was “the least of the problems”. The court held the warrant went further by misstating the offence being investigated. For example, the description focused on “the interest of the Commonwealth”, a phrase not used at all in section 79(3) of the Crimes Act.</p>
<p>In short, not only was it was impossible for a member of the public to know from reading the warrant what the investigation was about or what kind of information was being sought, but it misstated and misled the reader about the relevant offence. It was, therefore, invalid. </p>
<h2>Mistakes that shouldn’t be made</h2>
<p>Any failure by the AFP or a magistrate to meet the basic requirements for a valid warrant is concerning. Providing an incorrect and misleading description of an offence is shocking, especially in the context of a sensitive investigation into government leaks and public-interest journalism.</p>
<p>The circumstances of this warrant were serious. It authorised an invasive search of a journalist’s home – from her mobile phone and computer, to her <a href="https://10daily.com.au/news/australia/a190606krynj/i-was-expecting-a-cleaner-and-the-afp-were-at-my-door-then-in-my-oven-20190606">underwear drawer and cookbooks</a> – furthering an investigation into an alleged breach of national security law.</p>
<p>Raids on journalists are a serious matter, particularly if prompted by investigative reporting that has a clear public interest and, despite the passage of years, no clear threat to national security. The raid on Smethurst, and the subsequent raid on the ABC, not only prompted <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/133.html?context=1;query=australian%20broadcasting%20corporation%20v%20kane;mask_path=">constitutional challenges</a>, but successive <a href="https://www.abc.net.au/news/2019-08-09/peter-dutton-orders-afp-press-freedom-investigating-journalists/11401108">ministerial directions</a> to the AFP. It also prompted two ongoing <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/FreedomofthePress">parliamentary inquiries</a> into the state of <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/PressFreedom">press freedom</a> in Australia. </p>
<p>In such a context, it is damning that the authorisation for the warrant was so carelessly drafted as to misstate the offence being investigated. </p>
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<strong>
Read more:
<a href="https://theconversation.com/australia-needs-a-media-freedom-act-heres-how-it-could-work-125315">Australia needs a Media Freedom Act. Here's how it could work</a>
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<p>Elsewhere, there are processes and protections that guard against this kind of outcome. </p>
<p>Press freedom is enshrined in the <a href="https://www.law.cornell.edu/constitution/first_amendment">US Constitution</a>. A raid on American media would face a constitutional hurdle. </p>
<p>In the <a href="http://www.legislation.gov.uk/ukpga/1984/60/contents">UK</a>, police can only obtain “journalistic materials” in an investigation in a contested proceeding before a judge. Confidential journalistic materials simply cannot be accessed, except in terrorism investigations.</p>
<p>These kinds of protections recognise the importance of press freedom, and the need for journalists and their sources to be protected so important public-interest stories (like the ASD report) can continue to be told. </p>
<p>Since the raids on Smethurst and the ABC, calls have grown for the introduction of <a href="https://www.aph.gov.au/DocumentStore.ashx?id=73de3d94-ca72-403c-a098-3ba5588828fe&subId=668256">contested warrant proceedings</a> before a judge when press freedom is at stake, as in the UK. If that system had existed in June 2019, the problems with Smethurst’s warrant would not have brought about the prolonged and expensive process of High Court litigation. They would have been identified and addressed in the initial application, providing Smethurst with an opportunity to raise any issues, and the AFP with a chance to address these problems at the outset. </p>
<p>Importantly, a suitably experienced judge would have borne the responsibility of weighing the public interests in press freedom and law enforcement to come to a balanced and considered decision. </p>
<p>The parliamentary inquiries into press freedom sparked by the AFP’s raids on Smethurst and the ABC are yet to report. The High Court’s decision reveals the inadequacy of existing warrant procedures and the costly, time-consuming process for both citizens and government involved in addressing these problems. We need not look far to find clear and workable alternatives. </p>
<p><em>This article has been corrected. It originally read: For example, the description focused on “the interest of the Commonwealth”, a phrase not used at all in section 79(3) of the constitution. It has been amended to “of the Crimes Act”.</em></p><img src="https://counter.theconversation.com/content/136176/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh receives UQ Advancement funding. </span></em></p>The court’s decision reflects serious weaknesses in how warrants are issued and underscores the need for urgent reform.Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1013782018-08-14T04:14:36Z2018-08-14T04:14:36ZNew data access bill shows we need to get serious about privacy with independent oversight of the law<figure><img src="https://images.theconversation.com/files/231816/original/file-20180814-2921-15oljsx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://photos.aap.com.au/search/turnbull%20dutton%20parliament">MICK TSIKAS/AAP</a></span></figcaption></figure><p>The federal government today announced its <a href="https://www.homeaffairs.gov.au/consultations/Documents/the-assistance-access-bill-2018.pdf">proposed legislation</a> to give law enforcement agencies yet more avenues to reach into our private lives through access to our personal communications and data. This never-ending story of parliamentary bills defies logic, and is not offering the necessary oversight and protections. </p>
<p>The trend has been led by Prime Minister Malcolm Turnbull, with help from an ever-growing number of security ministers and senior officials. Could it be that the proliferation of government security roles is a self-perpetuating industry leading to ever more government powers for privacy encroachment?</p>
<p>That definitely appears to be the case.</p>
<p>Striking the right balance between data access and privacy is a tricky problem, but the government’s current approach is doing little to solve it. We need better oversight of law enforcement access to our data to ensure it complies with privacy principles and actually results in convictions. That might require setting up an independent judicial review mechanism to report outcomes on an annual basis. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-should-strengthen-its-privacy-laws-and-remove-exemptions-for-politicians-93717">Australia should strengthen its privacy laws and remove exemptions for politicians</a>
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</em>
</p>
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<h2>Where is the accountability?</h2>
<p>The succession of data access legislation in the Australian parliament is fast becoming a Mad Hatter’s tea party – a characterisation justified by the increasingly unproductive public conversations between the government on one hand, and legal specialists and rights advocates on the other. </p>
<p>If the government says it needs new laws to tackle “terrorism and paedophilia”, then the rule seems to be that other side will be criticised for bringing up “privacy protection”. The federal opposition has surrendered any meaningful resistance to this parade of legislation.</p>
<p>Rights advocates have been backed into a corner by being forced to repeat their concerns over each new piece of legislation while neither they nor the government, nor our <a href="https://www.oaic.gov.au/">Privacy Commissioner</a>, and all the other “commissioners”, are called to account on fundamental matters of principle.</p>
<p>Speaking of the commissioner class, Australia just got a new one last week: the <a href="https://www.pmc.gov.au/public-data/national-data-commissioner">Data Commissioner</a>. Strangely, the impetus for this appointment came from the <a href="https://www.mhs.gov.au/media-releases/2018-05-01-government-response-productivity-commission-inquiry-data-availability-and-use">Productivity Commission</a>. </p>
<p>The post has <a href="http://dataavailability.pmc.gov.au/governance-national-data-system">three purposes</a>: </p>
<ol>
<li>to promote greater use of data, </li>
<li>to drive economic benefits and innovation from greater use of data, and </li>
<li>to build trust with the Australian community about the government’s use of data.</li>
</ol>
<p>The problem with this logic is that purposes one and two can only be distinguished by the seemingly catch-all character of the first: that if data exists it must be used. </p>
<p>Leaving aside that minor point, the notion that the government needs to build trust with the Australian community on data policy speaks for itself. </p>
<h2>National Privacy Principles fall short</h2>
<p>There is near universal agreement that the government is managing this issue badly, from the <a href="http://www.abc.net.au/news/2017-10-19/abs-annual-report-censusfail/9064970">census data management issue</a> to the <a href="https://theconversation.com/my-health-record-the-case-for-opting-out-99302">“My Health Record” debacle</a>. The growing commissioner class has not been much help.</p>
<p>Australia does have <a href="https://www.oaic.gov.au/individuals/privacy-fact-sheets/general/privacy-fact-sheet-17-australian-privacy-principles">personal data protection principles</a>, you may be surprised to learn. They are called “Privacy Principles”. You may be even more surprised to learn that the rights offered in these principles exist only up to the point where any enforcement arm of government wants the data. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/94-of-australians-do-not-read-all-privacy-policies-that-apply-to-them-and-thats-rational-behaviour-96353">94% of Australians do not read all privacy policies that apply to them – and that’s rational behaviour</a>
</strong>
</em>
</p>
<hr>
<p>So it seems that Australians have to rely on the leadership of the Productivity Commission (for economic policy) to guarantee our rights in cyber space, at least when it comes to our personal data.</p>
<h2>Better oversight is required</h2>
<p>There is another approach to reconciling citizens’ interests in privacy protection with legitimate and important enforcement needs against terrorists and paedophiles: that is judicial review.</p>
<p>The government argues, unconvincingly <a href="https://www.theguardian.com/australia-news/2018/jul/26/my-health-record-greg-hunts-warrant-claims-contradicted-by-police-union">according to police sources</a>, that this process adequately protects citizens by requiring law enforcement to obtain court-ordered warrants to access information. The record in some other countries suggests otherwise, with judges almost always waving through any application from enforcement authorities, <a href="https://www.zdnet.com/article/fisa-court-denied-record-surveillance-orders-trump-first-year/">according to official US data</a>.</p>
<p>There is a second level of judicial review open to the government. This is to set up an independent judicial review mechanism that is obliged to annually review all instances of government access to personal data under warrant, and to report on the virtues or shortcomings of that access against enforcement outcomes and privacy principles. </p>
<p>There are two essential features of this proposal. First, the reviewing officer is a judge and not a public servant (the “commissioner class”). Second, the scope of the function is review of the daily operation of the intrusive laws, not just the post-facto examination of notorious cases of data breaches.</p>
<p>It would take a lengthy academic volume to make the case for judicial review of this kind. But it can be defended simply on economic grounds: such a review process would shine light on the efficiency of police investigations. </p>
<p>According to <a href="https://www.theguardian.com/uk-news/2018/jun/14/number-terrorism-related-arrests-uk-record-levels">data released by the UK government</a>, the overwhelming share of arrests for terrorist offences in the UK (many based on court-approved warrants for access to private data) do not result in convictions. There were <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/715701/annex-a-flow-chart-mar2018.pdf">37 convictions out of 441 arrests</a> for terrorist-related offences in the 12 months up to March 2018. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-differential-privacy-and-how-can-it-protect-your-data-90686">Explainer: what is differential privacy and how can it protect your data?</a>
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</em>
</p>
<hr>
<p>The Turnbull government deserves credit for its recognition of the values of legal review. Its continuing commitment to posts such as the <a href="https://www.inslm.gov.au/">National Security Legislation Monitor</a> – and the appointment of a <a href="https://www.lawyersweekly.com.au/wig-chamber/21918-silk-picked-to-monitor-national-security-laws">high-profile barrister</a> to such a post – is evidence of that. </p>
<p>But somewhere along the way, the administration of data privacy is falling foul of a growing bureaucratic mess. </p>
<p>The only way to bring order to the chaos is through robust accountability; and the only people with the authority or legitimacy in our political system to do that are probably judges who are independent of the government.</p><img src="https://counter.theconversation.com/content/101378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Greg Austin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The succession of data access legislation in the Australian parliament is fast becoming a Mad Hatter’s tea party. We need better oversight, and fast.Greg Austin, Professor UNSW Canberra Cyber, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1003052018-07-26T10:38:52Z2018-07-26T10:38:52ZSupreme Court struggles to define ‘searches’ as technology changes<figure><img src="https://images.theconversation.com/files/228912/original/file-20180723-189326-uj3z9t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Beyond a physical inspection, what constitutes a search?</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Times-Square-Car-Bomb/e4b44c5f613344229a9b3abf825ece4c/167/0">AP Photo/Jessica Hill</a></span></figcaption></figure><p>What the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript#amendmentIV">Fourth Amendment to the U.S. Constitution</a> means when it protects citizens against an unreasonable search by government agents isn’t entirely clear. It certainly includes police physically entering a person’s home, but for almost 100 years, the Supreme Court has tried to define what else might qualify, including keeping the law up-to-date with new technologies – as a <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf">recent case</a> illustrates. </p>
<p>In that case, the FBI used cellphone records to show that a crime suspect’s mobile phone had been near the location of several robberies. The agency had gotten those records, without a warrant, from the company that provided the suspect with mobile service. The suspect argued that because the records were so invasive of his privacy – by revealing his physical locations over a period of time – obtaining them should be considered a search under the Constitution, and therefore require a warrant. The Supreme Court agreed.</p>
<p>To someone like me, who teaches law students about the <a href="https://law.unh.edu/faculty/mirhashem">relationship between the Constitution and police investigations</a>, this case is another milestone in the back-and-forth between the police and the citizenry over technology and privacy.</p>
<h2>An early wiretapping case</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=847&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=847&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=847&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1064&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1064&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229128/original/file-20180724-194131-1hevujv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1064&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Louis Brandeis.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/rr/print/list/235_pob.html">Harris and Ewing, Library of Congress</a></span>
</figcaption>
</figure>
<p>As technology has developed, police have found new ways of collecting incriminating information without trespassing onto the suspect’s property. A century ago, police were beginning to tap phone lines to listen in on suspects’ conversations. In 1928, the Supreme Court ruled that <a href="https://www.oyez.org/cases/1900-1940/277us438">wiretaps didn’t need warrants</a>, so long as police didn’t enter the target’s own property to install the wires. The Supreme Court said the Fourth Amendment was concerned only with protecting material things, such as a person’s home or papers.</p>
<p>The decision came with a notable dissent from Justice Louis Brandeis, who argued that police listening in on phone conversations was indeed a search, because the Constitution’s authors meant to protect more than just tangible property:</p>
<blockquote>
<p>“<a href="https://www.law.cornell.edu/supremecourt/text/277/438#writing-USSC_CR_0277_0438_ZD">They sought to protect Americans in their beliefs</a>, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” </p>
</blockquote>
<h2>Expectation of privacy and the risk of sharing information</h2>
<p>In 1967, the Supreme Court decided that Brandeis was right after all. Limiting the Fourth Amendment to material searches left too much of modern life completely outside the protections of the Constitution. Explaining that the Fourth Amendment protects people, not places, the justices ruled that <a href="https://www.oyez.org/cases/1967/35">police tapping into a private phone conversation</a> – in that case by attaching a listening device to the outside of a public telephone booth – was a search. </p>
<p>In its decision, the Supreme Court created a new way of thinking about what is a search: As long as an individual is seeking to preserve something as private, and his expectation of privacy is one that society as a whole recognizes as reasonable, then official intrusion is a search. For example, when a person steps into a phone booth and closes the door, he is seeking to have a private conversation, and reasonably expects that the call will remain private from those outside the phone booth. Therefore, tapping into that call is a search.</p>
<p>But in the 1970s and 1980s, the Supreme Court narrowed the protection, for instance declaring that police <a href="https://www.oyez.org/cases/1978/78-5374">didn’t need a warrant</a> to find out what number the person called. The logic went that the caller voluntarily shared the recipient’s number with the phone company, and therefore willingly took the risk that it might be shared with police.</p>
<h2>Privacy protections reemerge</h2>
<p>In the past two decades, though, the Supreme Court has expanded Fourth Amendment protections against police searches. In 2001, the Supreme Court concluded that police needed to get a warrant before using a <a href="https://www.oyez.org/cases/2000/99-8508">thermal imager</a> to spot a marijuana growing operation inside a house. In 2012, the justices ruled officers needed a warrant before <a href="https://www.oyez.org/cases/2011/10-1259">placing a GPS tracker on a suspect’s car</a>. Add to these the most recent decision, that <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf">obtaining a person’s historical cell tower location data</a> also requires a warrant.</p>
<p>The justices – like society as a whole – are increasingly recognizing that new technologies, especially digital ones, pose growing privacy challenges. For example, the Supreme Court said a few years ago that, while police could still search a person after their arrest without a warrant, they <a href="https://www.oyez.org/cases/2013/13-132">needed one to search the data on the arrested person’s cellphone</a>.</p>
<p>In its most recent decision, the Supreme Court noted that cell service providers save cell tower data for five years. That kind of information can <a href="http://www.scotusblog.com/wp-content/uploads/2017/10/Carpenter-v-US-amicus-EPICtsac16-402.pdf">reveal a huge amount about a person’s private life</a>, especially when coupled with <a href="https://www.theguardian.com/technology/2017/aug/01/data-browsing-habits-brokers">additional information that may be publicly available</a>. </p>
<p>Smartphones have become an integral part of modern life over the past decade – and using one inherently involves sharing location data with the cell company. The justices have realized that regular people aren’t willing to accept the risk that participating in modern society means police could discover their movements over the previous five years without even getting a warrant.</p>
<h2>A potential new rationale</h2>
<p>The justices are also increasingly focused on the Fourth Amendment’s language and history. The Fourth Amendment says nothing about privacy as such, but establishes the “<a href="https://www.law.cornell.edu/wex/fourth_amendment">right of the people to be secure in their persons, houses, papers and effects</a>.”</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=751&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=751&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=751&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=944&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=944&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229131/original/file-20180724-194124-17g9d1h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=944&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Neil Gorsuch.</span>
<span class="attribution"><a class="source" href="https://www.supremecourt.gov/about/biographies.aspx">U.S. Supreme Court</a></span>
</figcaption>
</figure>
<p>In the cell tower case, the newest justice, Neil Gorsuch, dissented from the privacy reasoning of the majority’s decision, saying courts should stick more closely to the original text of the Fourth Amendment. But he then went on to say that the Supreme Court could interpret “papers and effects” to <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=99">include digital information</a>.</p>
<p>It remains to be seen whether the Supreme Court will extend Fourth Amendment protections to <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf">emails stored on Gmail or Microsoft servers</a>, or to password-protected websites people use to share photos with family and friends. As digital technology evolves and integrates into people’s lives in new ways, the Supreme Court will continue to wrestle with how to interpret the static text of the Fourth Amendment, adopted in 1791, in the 21st century.</p><img src="https://counter.theconversation.com/content/100305/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Behzad Mirhashem does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A recent US Supreme Court ruling marks a new milestone in the debate over police power and privacy in the digital age.Behzad Mirhashem, Associate Professor of Law and Director of Criminal Practice Clinic, University of New HampshireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/988052018-06-26T10:42:20Z2018-06-26T10:42:20ZSupreme Court ruling adds privacy protection for the digital age<figure><img src="https://images.theconversation.com/files/224778/original/file-20180625-19421-1sakak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Your phone knows where you've been.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/gpsnavigator-pin-blue-color-mock-map-569761816">LightAndShare/Shutterstock.com</a></span></figcaption></figure><p>The Supreme Court has handed down a <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf">landmark privacy decision in a case about cellphone location data</a>, suggesting there should be stronger protections against government searches for the increasing amount of private information that’s stored online.</p>
<p>The case relates to location information routinely collected and stored by cellphone companies. As you go about your everyday life, your mobile phone regularly connects to the nearest cell tower – when you make calls, check your email, or look something up on the web; when an app running in the background makes a connection that you didn’t initiate; and every few minutes just to tell the cell tower, “Here I am, if you need to find me to send messages or connect calls.” </p>
<p>Some cellphone companies record the date, time and which tower your phone connected to for <a href="https://caselaw.lexroll.com/2016/05/12/re-application-telephone-information/?print=pdf#page=28">every one</a> of those contacts; other companies track everything <a href="https://caselaw.lexroll.com/2016/05/12/re-application-telephone-information/?print=pdf#page=28">except</a> the “Here I am” check-ins. Either way, your cell company has stored in its databases an elaborate record of what cell towers your phone connected to and when, covering 24 hours a day, 365 days a year. The cell companies retain that information for <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=17">as long as five years</a>. It’s more than enough data to reconstruct where you were – or rather, where your phone was – anytime in that five-year period. It can pinpoint a physical location <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=18">pretty closely within a city</a>, and within a couple of miles in a rural area.</p>
<p>The question before the Supreme Court in this case, Carpenter v. United States, was how hard it should be for police to get that information from a cellphone company.</p>
<h2>It used to be easy</h2>
<p>Before the Supreme Court’s ruling in Carpenter, federal, state and local police demanded customer location records <a href="http://www.scotusblog.com/wp-content/uploads/2016/11/16-402-cert-amicus-EFF.pdf#page=23">more than 200,000 times every year</a>, with each demand covering a period of time as long as several months. The police just had to tell a judge there was some reason to think the location data might be “relevant” to a criminal investigation. That bar was extremely low; as a practical matter, police could get anyone’s location information on demand.</p>
<p>Some customers and scholars, <a href="http://www.scotusblog.com/wp-content/uploads/2017/08/16-402-tsac-Scholars-of-Criminal-Procedure-and-Privacy.pdf">including me</a>, objected that allowing the police to trace their movements so easily violated their Fourth Amendment privacy rights. They said <a href="https://www.leagle.com/decision/infdco20150731712">police should be forced to get a search warrant</a> before exercising the power to collect, at no cost, a near-perfect record of where anyone had been. That would present a higher bar: To get a warrant, a police officer would have to produce evidence convincing a judge that there was probable cause to believe the location data would generate evidence of a crime.</p>
<p>However, until the Carpenter case, the federal courts of appeals said a warrant wasn’t necessary, because of two 1970s-era Supreme Court rulings. “A person,” the Supreme Court had held, “<a href="https://www.law.cornell.edu/supremecourt/text/442/735">has no legitimate expectation of privacy</a> in information he voluntarily turns over to third parties.” As a result, for example, the government <a href="https://www.law.cornell.edu/supremecourt/text/425/435">does not need a warrant</a> to demand your financial records from your bank: As an account holder, you have voluntarily revealed that information to the bank’s employees.</p>
<p>Similarly, judges in cellphone location data cases ruled, because your phone broadcast your location to your mobile company, <a href="https://www.leagle.com/decision/infco20170808071">that information wasn’t really private</a>.</p>
<h2>Justices raise the bar</h2>
<p>In this most recent ruling, the Supreme Court found that police need a warrant to get cellphone location data from a mobile company. The court ruled that giving the government easy access to a detailed history of a person’s whereabouts <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=15">violates people’s legitimate expectation</a> that their everyday movements will not automatically be monitored, recorded and made available to the police. And because carrying a cellphone is a necessary part of ordinary life in the U.S., it’s <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=21">not realistic</a> to say that everyone with a phone has voluntarily agreed to make their movements a matter of public record.</p>
<p>Exactly what this ruling means for privacy in the internet age remains to be seen – and litigated in future cases. These days, people’s most private information doesn’t reside on pieces of paper locked in office or home desk drawers; it lives on <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">internet servers operated by private companies</a>. The federal government has claimed <a href="https://caselaw.findlaw.com/us-6th-circuit/1548071.html">sweeping power</a> to get documents and emails from those companies without a warrant.</p>
<p>The Carpenter ruling has made clear that, at least some of the time, a warrant is needed. The Fourth Amendment was designed, the court explained, “<a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf#page=10">to place obstacles in the way of a too permeating police surveillance</a>.” That means that it can’t merely protect people’s physical homes from search. Sometimes it also limits the government’s ability to demand personal information in the hands of third parties.</p><img src="https://counter.theconversation.com/content/98805/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Weinberg was one of 42 criminal-law and privacy scholars who filed an amicus brief with the Supreme Court in support of the result the Court reached in Carpenter.</span></em></p>People’s most private information isn’t on paper locked in desks anymore – it’s online, stored on corporate servers. The Supreme Court now says some privacy protections cover that data.Jonathan Weinberg, Professor of Law, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/882232017-11-29T02:25:26Z2017-11-29T02:25:26ZAn armed robber’s Supreme Court case could affect all Americans’ digital privacy for decades to come<figure><img src="https://images.theconversation.com/files/196798/original/file-20171128-28888-7jbmp4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How much can your cellphone reveal about where you go?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/surprised-man-holding-smartphone-connected-browsing-456114190">pathdoc/Shutterstock.com</a></span></figcaption></figure><p>A man named Timothy Carpenter planned and participated in several armed robberies at Radio Shack and T-Mobile stores in Michigan and Ohio between 2010 and 2012. He was caught, convicted and <a href="https://archives.fbi.gov/archives/detroit/press-releases/2014/cell-phone-store-robber-sentenced-to-116-years">sentenced to 116 years</a> in federal prison. His appeal, which <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/16-00402qp.pdf">was heard by the U.S. Supreme Court</a> on Nov. 29, will shape the life of every American for years to come – no matter which way it’s decided.</p>
<p>During its investigation of the robberies, the FBI got records not only of the phone calls made and received by Carpenter’s cellphone, but <a href="https://www.technologyreview.com/s/608042/warrantless-tracking-of-cell-phone-location-data-by-the-police-could-get-harder/">also its location over 127 days</a>. The information clearly placed Carpenter’s phone nearby at the times and places of each of the robberies, providing strong circumstantial evidence against him. But it also revealed other information unrelated to the investigation, such as which nights Carpenter slept at home and <a href="https://www.aclu.org/news/supreme-court-hear-first-cell-phone-location-data-case-0">what church he prayed in</a> on Sunday mornings. The FBI didn’t get a search warrant for that information; the agency just asked <a href="http://www.freep.com/story/news/2017/06/05/supreme-detroit-carpenter-cell-phone-privacy/370606001/">Carpenter’s cell service provider</a>, MetroPCS, for the data.</p>
<p>Carpenter is <a href="https://www.oyez.org/cases/2017/16-402">appealing his conviction</a> on the grounds that his Fourth Amendment right to be protected from an unreasonable search was violated because his cellphone location was tracked without a search warrant. If you have a cellphone, what the Supreme Court decides will affect you.</p>
<h2>Cell companies know where people are</h2>
<p>As part of providing their services, cellphone companies know where their users are. Mobile phones <a href="https://technogog.com/information/how-stuff-works-cell-phone-towers/">connect to nearby towers</a>, which have <a href="https://opensignal.com/blog/2012/08/10/how-to-tell-in-which-direction-a-cell-tower-lies/">separate antennas pointing different directions</a>. Noting which antennas on which towers a particular phone connects to allows the phone company to <a href="https://null-byte.wonderhowto.com/how-to/triangular-phone-tracking-works-how-fbi-traces-cell-phones-0168005/">triangulate</a> a fairly precise location.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=352&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=352&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=352&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=442&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=442&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196796/original/file-20171128-28849-1vti6rd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=442&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Triangulating the location of a mobile device.</span>
<span class="attribution"><a class="source" href="https://www.nist.gov/news-events/news/2017/04/indoor-gps-apps-closer-reality-new-nist-challenge">N. Moayeri/NIST</a></span>
</figcaption>
</figure>
<p>In addition, technological advances are allowing cell towers to serve smaller and smaller areas. That means connected users are in even more specific locations. The <a href="https://www.fcc.gov/public-safety-and-homeland-security/policy-and-licensing-division/911-services/general/location-accuracy-indoor-benchmarks">FCC actually requires</a> phone companies to be able to locate most cellphones within 50 meters when they call 911, to be able to direct emergency responders to the correct location. </p>
<h2>Police want to track suspects’ movements</h2>
<p>It is in the public’s interest for police to be able to track, catch and convict criminals. But to protect innocent citizens from harassment, the Bill of Rights established a process requiring investigators to <a href="https://www.law.cornell.edu/constitution/fourth_amendment">get a judge’s signoff</a> before conducting most searches for evidence.</p>
<p>Early in the 20th century, <a href="https://www.law.cornell.edu/supremecourt/text/277/438">courts thought</a> phone wiretaps didn’t require a warrant as long as the physical wiretap equipment was placed outside a target’s home. Over time, the importance of the telephone as a communications medium and the rise of the internet <a href="https://dx.doi.org/10.2139/ssrn.421860">led to the increased protections</a> provided by the 1986 Stored Communications Act. That law <a href="http://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter121&edition=prelim">clarified constitutional procedure</a> for the telephone age. </p>
<p>Under the law, police need a warrant to tap a person’s phone and listen to all his conversations. Without a warrant, officers can <a href="http://caselaw.findlaw.com/us-supreme-court/442/735.html">see what numbers a phone called</a>, what numbers called that phone and when and how long the conversations lasted – but cannot eavesdrop on what was said.</p>
<p>Those rules have not been updated for the age of the mobile phone. As a result, a legal principle called the “<a href="https://repository.law.umich.edu/mlr/vol107/iss4/1/">third party doctrine</a>” applies in Carpenter’s case – and <a href="https://www.theatlantic.com/technology/archive/2013/12/what-you-need-to-know-about-the-third-party-doctrine/282721/">in dozens</a>, if not hundreds, of others. It says that if a person gives someone else a piece of information, that knowledge is no longer considered private. </p>
<p>In practice, it seems straightforward: If you tell a friend what you did last night, you can’t later stop your friend from telling the police what you said. And in fact, the Supreme Court has held that your friend could wear a “wire” so that the police can listen in, <a href="https://supreme.justia.com/cases/federal/us/425/435/case.html">without a warrant and without informing you</a>.</p>
<p>The way this plays out regarding the location of a cellphone is the assumption that by carrying a cellphone – which communicates on its own with the phone company – you have <a href="https://www.wired.com/story/supreme-courts-cell-phone-tracking-case-could-hurt-privacy/">effectively told the phone company</a> where you are. Therefore, your location isn’t private, and the police can get that information from the cellphone company without a warrant, and without even telling you they’re tracking you. This assumption is what Carpenter’s appeal is challenging.</p>
<h2>Technology intrudes on privacy</h2>
<p>I have been at the leading edge of data science for over 30 years. Based on my work on the <a href="https://www.coursera.org/learn/data-science-ethics">ethics of data science</a>, I believe the assumptions that were safe in 1986 – when almost nobody had cellphones and nearly all telephones were landlines serving fixed locations – are no longer reasonable. Back then, the information a phone user revealed to a phone company was very limited. Today, people disclose their location all the time, for routine, law-abiding activities, by carrying around cellphones.</p>
<p>Cellphone companies can know not only whom you call and for how long you speak, but where you are when you make the call, where you go in between calls and much more. They <a href="https://theconversation.com/7-in-10-smartphone-apps-share-your-data-with-third-party-services-72404">can deduce even more information</a>, such as individuals’ religious affiliations and any number of personal habits that might be better kept secret – including <a href="https://www.theverge.com/circuitbreaker/2017/9/25/16362296/gps-accuracy-improving-one-foot-broadcom">how often an employee uses the restroom</a> during a workday.</p>
<p>It makes no practical sense to claim a person could protect the privacy of their location and movements by not carrying a cellphone: The social and economic burden that would impose on each person would be too high.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196797/original/file-20171128-28846-sodg9p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An automated license plate reader on the street.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AMiovisionALPR2015.jpg">ScottMLiebenson</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>This threat to privacy goes well beyond mobile phones: <a href="https://www.aclu.org/issues/privacy-technology/location-tracking/you-are-being-tracked">Automated license plate readers</a> on bridges, roadsides and even police cars can easily record the identity of every vehicle, confirming its presence at a specific location at a particular time. A privacy-conscious person might give up driving, and instead rely on walking and taking public transportation. Cameras on the streets, at bus stops and in transit vehicles – coupled with tremendous recent advances in face recognition technology – can still <a href="https://www.perpetuallineup.org/">track every move</a> you make.</p>
<p><a href="http://theconversation.com/could-your-fitbit-data-be-used-to-deny-you-health-insurance-72565">Personal health devices</a> collect a great deal of information about users to help them achieve fitness goals, and may even be useful to provide <a href="https://tricorder.xprize.org/press-release/family-led-team-takes-top-prize-qualcomm-tricorder-xprize-competition">early diagnosis</a> of diseases. But <a href="https://www.engadget.com/2017/07/13/pacemaker-arson-trial-evidence/">information from a pacemaker</a> has already been used to <a href="https://www.csoonline.com/article/3162740/security/cops-use-pacemaker-data-as-evidence-to-charge-homeowner-with-arson-insurance-fraud.html">charge an alleged arsonist</a>, and a <a href="https://www.cnn.com/2017/04/25/us/fitbit-womans-death-investigation-trnd/index.html">Fitbit helped solve a murder</a>. </p>
<p>Companies that provide internet service <a href="https://www.washingtonpost.com/news/the-switch/wp/2017/03/29/what-to-expect-now-that-internet-providers-can-collect-and-sell-your-web-browser-history/">can learn a great deal</a> about their customers simply by observing what websites users connect to, even if they don’t read the contents of each web page or email message. As electronic personal assistants (like Siri and Alexa) and home devices (like Nest) become more common and used more heavily, they will soon <a href="http://theconversation.com/your-devices-latest-feature-they-can-spy-on-your-every-move-55998">learn even more intimate details</a> about people’s lives.</p>
<p>Declining to provide information to these “third party” service providers would require people to opt out of normal life – which isn’t really a choice.</p>
<h2>Privacy extends to companies too</h2>
<p><a href="http://www.pewresearch.org/fact-tank/2016/09/21/the-state-of-privacy-in-america/">Most Americans</a> don’t want their mobile phone companies to just hand over to police the enormous amount of information cellphones can reveal – at least not without getting a warrant first. But Americans’ privacy problem goes much deeper. Most people also don’t want their mobile phone companies to <a href="https://www.theverge.com/2017/8/24/16197262/accuweather-app-mobile-sdk-collect-user-data-privacy">sell these data</a> to others.</p>
<p>Many companies may seek that information to try to persuade more customers to buy their products, but nefarious uses are also possible. A person could be blackmailed with a threat of publicizing their (completely lawful) secrets – such as a particular health condition, religious affiliation or sexual preference.</p>
<p>Today, the protection people get goes only as far as the fine print of each service’s <a href="https://theconversation.com/nobody-reads-privacy-policies-heres-how-to-fix-that-81932">privacy policy</a>. When a company goes out of business, its creditors try to make money from its assets – including data collected from and about its users. That is why I have called for companies to take the <a href="http://www.bigdatadialog.com/privacy/data-destruction-pledge">Data Destruction Pledge</a>, promising that all customer data will be destroyed if the company ceases operation.</p>
<p>The FBI found Timothy Carpenter because <a href="http://www.abajournal.com/magazine/article/carpenter_v_united_states">one of his accomplices told them</a> about him. I believe the FBI could have obtained a search warrant to track Carpenter, if agents had applied for one.
Instead, federal agents got cellphone location data not just for Carpenter, but for <a href="http://harlaninstitute.org/lesson-plans/lesson-plan-carpenter-v-united-states/#background">15 other people</a>, most of whom were not charged with any crime. One of them could be you, and <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">you’d likely never know it</a>.</p>
<p>The more people rely on external devices whose basic functions record and transmit important data about their lives, the more critical it becomes for everyone to have real protection for their private data stored on and communicated by these devices.</p><img src="https://counter.theconversation.com/content/88223/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>H V Jagadish receives funding for his research from multiple sources including NSF, NIH, and IBM.</span></em></p>Should police be able to use cellphone records to track suspects – and law-abiding citizens?H.V. Jagadish, Bernard A. Galler Collegiate Professor of Electrical Engineering and Computer Science, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/679672016-11-01T02:49:40Z2016-11-01T02:49:40ZRestoring transparency and fairness to the FBI investigation of Clinton emails<p>The New York Times and other national media sources are reporting that late Sunday night, the <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">FBI obtained a search warrant</a> to examine email messages belonging to top Clinton aide Huma Abedin. The messages were stored on a laptop belonging to her estranged husband, Anthony Weiner. The laptop was seized by the agency in connection with an investigation into <a href="http://www.dailymail.co.uk/news/article-3790824/Anthony-Weiner-carried-months-long-online-sexual-relationship-troubled-15-year-old-girl-telling-hard-asking-dress-school-girl-outfits-pressing-engage-rape-fantasies.html">Weiner’s alleged sexting with a 15-year-old</a> North Carolina girl. </p>
<p>The emails are clearly Abedin’s property, even if they were backed up on her husband’s computer. (If they jointly owned the computer, her ownership would be even clearer.) Under the <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">federal rules of criminal procedure</a>, the owner of property seized under a search warrant must be given a copy of the warrant and an inventory of what was taken. Has she received a copy or an inventory? </p>
<p>According to a statement issued Oct. 31 by Abedin’s lawyer, “<a href="http://www.nytimes.com/2016/11/01/us/politics/hillary-clinton-huma-abedin-emails-fbi.html">the FBI has not contacted us</a>.” Though her lawyer said Abedin “<a href="http://www.nytimes.com/2016/11/01/us/politics/hillary-clinton-huma-abedin-emails-fbi.html">will continue to be, as she always has been, forthcoming and cooperative</a>,” <a href="http://www.politico.com/story/2016/10/huma-abedin-emails-clinton-weiner-comey-230512">she has been kept completely in the dark</a> over the past month while the FBI has been prowling around in Weiner’s laptop.</p>
<p>Giving Abedin the warrant puts her in the position to exercise important legal rights. If it contains provisions that go beyond the constitutional limits on search warrants, she could even challenge the government’s assertion that the warrant was legal at all. Upon receiving the warrant, Abedin could also choose to share it with the media and the general public. That would bring much-needed transparency to what has so far been a mysterious and troubling government operation brought precipitously to public attention less than two weeks before Election Day.</p>
<h2>Following one case to another</h2>
<p>In a <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">letter sent to Congress Oct. 28</a>, FBI Director James Comey said the FBI “has learned” of the existence of emails “that may be pertinent” to the closed investigation of Clinton’s use of a personal email server during her tenure as secretary of state. He also said that although “the FBI cannot yet assess whether or not this material may be significant,” he had directed investigators “to review these emails to determine whether they contain classified information.”</p>
<p>The FBI seized the computer on which those emails exist in early October under a search warrant seeking evidence of <a href="http://www.nytimes.com/2016/10/29/us/politics/fbi-hillary-clinton-email.html">Weiner’s “sexting” with a minor</a> and reportedly also <a href="http://www.wsj.com/articles/laptop-may-include-thousands-of-emails-linked-to-hillary-clintons-private-server-1477854957">for child pornography</a>. It has been reported that the FBI <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">downloaded summary information, also called “metadata,” for the entire contents of the laptop</a>. That revealed the presence of Abedin’s emails. </p>
<p>At that point, agents <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">delved deeper into the laptop</a>. They sought to determine the dates of the emails and the identities of the people who sent and received them. They were hoping to identify emails that passed through the private email server used by Clinton while she was secretary of state.</p>
<h2>Search warrants need specifics</h2>
<p>The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “<a href="https://www.law.cornell.edu/constitution/fourth_amendment">particularly describes the place to be searched and the things to be seized</a>.” In a 1976 case, the <a href="https://supreme.justia.com/cases/federal/us/427/463/case.html">Supreme Court explained</a> that the provision prohibits “general, exploratory rummaging in a person’s belongings and prevents the seizure of one thing under a warrant describing another.”</p>
<p>In addition, federal rules of criminal procedure require officers or agents executing search warrants to “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">give a copy of the warrant</a> and a receipt for the property taken to the person from whom … the property was taken.” Abedin must get not only the warrant but also an inventory of the emails in question.</p>
<p>Once Abedin receives the warrant, she has several legal options to protect her rights. She could:</p>
<ol>
<li>Challenge its legality, asking for the government to show in open court that it had probable cause, sworn under oath, that any of these emails could be evidence of a federal crime. This is particularly relevant because back in July Comey had announced <a href="http://www.nytimes.com/2016/07/06/us/politics/hillary-clinton-fbi-email-comey.html">there was no evidence</a> that Clinton’s use of the private email server was a crime. So why would the mere fact that Abedin had sent or received email linked to that server be probable cause to believe those emails were <a href="http://www.politico.com/story/2016/10/huma-abedin-emails-clinton-weiner-comey-230512">evidence of a crime</a>?</li>
<li>Challenge its scope, arguing the warrant isn’t properly limited to specifically described emails. As documented in <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">my article published last week</a> by the <a href="http://www.yalelawjournal.org/">Yale Law Journal</a>, the FBI has a troubling history of abusing search warrant provisions to search <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">vast troves of email messages</a>. So it’s possible – even likely – that the FBI’s warrant is too broad.</li>
<li>Challenge the method of execution, demanding the warrant specify legal protections so government investigators will only read the specific messages described in the warrant. Her privacy rights mean government investigators shouldn’t be able to read unrelated emails of hers that happen to be on the laptop.</li>
</ol>
<h2>Time for new guidelines for handling digital data</h2>
<p>The method by which the FBI located this information is <a href="https://theconversation.com/in-getting-new-clinton-emails-did-the-fbi-violate-the-constitution-67906">also questionable</a>. It is almost certain that the warrant authorizing the search of Weiner’s laptop for evidence in the alleged sexting crime did not authorize looking at any emails belonging to Abedin. </p>
<p>The FBI itself has admitted that agents didn’t know the messages were on Weiner’s computer <a href="http://www.nytimes.com/2016/10/31/us/politics/justice-department-warrant-clinton-abedin-fbi.html?_r=0">until they began searching it</a>. So it appears as if the FBI agents barged ahead, examining information about Abedin’s messages despite their constitutional obligations.</p>
<p>In 2010 <a href="https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2010/09/13/05-10067.pdf">five federal judges reviewed</a> egregious misconduct in a federal search of computer data, and recommended that when a search warrant authorizes downloading a large set of data, the <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">data should be placed under the control of a court-appointed third party</a>. <a href="https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2010/09/13/05-10067.pdf">The judges said</a>: “That third party should be prohibited from communicating any information learned during the search other than that covered by the warrant. Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation should be allowed to examine only the information covered by the terms of the warrant.”</p>
<p>It seems clear that such a procedure should have been used when the Weiner laptop was initially seized and should be used now in handling Abedin’s email.</p><img src="https://counter.theconversation.com/content/67967/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Huma Abedin’s emails belong to her; the search warrant should be served upon her. Once that happens, she can challenge the warrant’s legality.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/679062016-10-30T01:33:16Z2016-10-30T01:33:16ZIn getting ‘new’ Clinton emails, did the FBI violate the Constitution?<figure><img src="https://images.theconversation.com/files/143783/original/image-20161029-15810-zmqpmm.jpg?ixlib=rb-1.1.0&rect=56%2C140%2C2980%2C1135&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How is it holding up in this digital age?</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Constitution_of_the_United_States,_page_1.jpg">U.S. National Archives and Records Administration</a></span></figcaption></figure><p>FBI Director James Comey’s Oct. 28 <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">bombshell letter to Congress</a> – which has the potential to <a href="http://www.nytimes.com/2016/10/30/us/politics/comey-clinton-email-justice.html">affect the presidential election</a> – may be based on illegally obtained emails. </p>
<p>In his letter, Comey says <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI “has learned” of the existence of emails “that may be pertinent”</a> to the <a href="http://www.nytimes.com/2016/07/06/us/politics/hillary-clinton-fbi-email-comey.html">closed investigation</a> of Hillary Clinton’s use of a personal email server during her tenure as secretary of state. He writes that although “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI cannot yet assess whether or not this material may be significant</a>,” he has directed investigators “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">to review these emails to determine whether they contain classified information</a>.” As the nation’s <a href="https://www.justice.gov/ag/about-office">chief law enforcement officer</a>, Attorney General Loretta Lynch has the apolitical and urgent responsibility to determine whether these emails were obtained <a href="https://www.yahoo.com/news/comey-wrote-bombshell-letter-to-congress-before-fbi-had-reviewed-new-emails-220219586.html">in a manner consistent with the Constitution</a>.</p>
<p>We don’t know everything yet, but we know a fair amount already about these emails and how the FBI got them. Comey tells Congress that the FBI “learned” of the emails’ existence “<a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">in connection with an unrelated case</a>.” Multiple media sources are now reporting that they were <a href="http://www.nytimes.com/2016/10/29/us/politics/fbi-hillary-clinton-email.html">found during the FBI’s investigation of allegations</a> that former Congressman Anthony Weiner <a href="http://www.dailymail.co.uk/news/article-3790824/Anthony-Weiner-carried-months-long-online-sexual-relationship-troubled-15-year-old-girl-telling-hard-asking-dress-school-girl-outfits-pressing-engage-rape-fantasies.html">sent sexual text messages</a> to a 15-year-old girl in North Carolina. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=732&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=732&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=732&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=920&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=920&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143779/original/image-20161029-15728-1n7nun7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=920&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Under FBI investigation: Anthony Weiner.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AAnthonyweiner.jpg">U.S. Congress</a></span>
</figcaption>
</figure>
<p>The FBI apparently seized a laptop from Weiner on which <a href="https://www.washingtonpost.com/politics/fbi-to-conduct-new-investigation-of-emails-from-clintons-private-server/2016/10/28/0b1e9468-9d31-11e6-9980-50913d68eacb_story.html">more than 1,000 emails belonging to his estranged wife, Huma Abedin</a>, had been backed up. Abedin, who is <a href="https://www.washingtonpost.com/politics/fbi-to-conduct-new-investigation-of-emails-from-clintons-private-server/2016/10/28/0b1e9468-9d31-11e6-9980-50913d68eacb_story.html">currently vice chairman of the Clinton presidential campaign</a>, had served as deputy chief of staff to Clinton when she was secretary of state.</p>
<p>If the laptop was “<a href="http://www.nytimes.com/2016/10/30/us/politics/comey-clinton-email-justice.html">seized</a>” by the FBI, it’s unlikely that either Weiner or Abedin voluntarily turned over the emails. That means the agency needed to get a search warrant, by swearing to a judge there was probable cause to believe that data on the laptop contained evidence of the suspected “sexting” crime. Under the Constitution, the warrant should have specified exactly the information to be seized and searched, and thereby limited the FBI from looking through the entire contents of the laptop.</p>
<p>As a constitutional scholar, I have studied the FBI’s troubling history of <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">deliberately abusing search warrant powers</a> to go on unconstitutional fishing expeditions through Americans’ email. It seems likely that happened again here.</p>
<h2>Was the search properly limited?</h2>
<p>The Fourth Amendment to the Constitution states that no search warrant can be issued unless it “<a href="https://www.law.cornell.edu/constitution/fourth_amendment">particularly describes the place to be searched and the things to be seized</a>.” Did the warrant for Weiner’s laptop “particularly describe” emails sent to or received by Abedin while working at the State Department as material that could be seized as evidence of the alleged sexting crime? That seems highly unlikely. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=774&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=774&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=774&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=973&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=973&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143780/original/image-20161029-15799-11ek7hh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=973&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Not aware of her husband’s alleged sexting: Huma Abedin.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AHumaAbedin-October2010.jpg">U.S. Department of State</a></span>
</figcaption>
</figure>
<p>Indeed, why were federal agents looking at any emails belonging to the suspect’s estranged spouse? Surely the FBI didn’t think Abedin was involved in the alleged sexting crime.</p>
<p>The agents might make the implausible claim that they saw Abedin’s emails inadvertently when looking for evidence related to the sexting crime. But even then, the legal approach would have required seeking Abedin’s consent to review the emails. If she declined, the FBI could have sought a new search warrant for specific Abedin messages, swearing to a federal judge that there was probable cause those particular emails were evidence of a crime, presumably related to the State Department email investigation.</p>
<p>So far there are no reports that the FBI did either of these things. To the contrary, Comey’s own letter says <a href="http://www.nytimes.com/interactive/2016/10/28/us/politics/fbi-letter.html?_r=0">the FBI has no idea</a> if the emails are even “significant.” So how could the FBI get a search warrant to review them?</p>
<h2>A regular pattern of FBI abuse</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143781/original/image-20161029-15821-cy0x9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Dropping a bombshell: FBI Director James Comey.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AComey-FBI-Portrait.jpg">FBI</a></span>
</figcaption>
</figure>
<p>It may seem extreme to suspect that federal agents sworn to uphold the Constitution would deliberately violate it to go on an unauthorized fishing expedition through Weiner’s laptop. However, there is clear evidence that the FBI <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">regularly and deliberately oversteps constitutional boundaries</a> with regard to <a href="https://theconversation.com/feds-we-can-read-all-your-email-and-youll-never-know-65620">Americans’ email messages</a>.</p>
<p>In one case now pending in New Jersey, the FBI went completely beyond the limits of a <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-SearchWarrant-24Dec2014.pdf">search warrant</a> to download <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-LtrFromFilterProsecutor-19Feb2016.pdf">the entire contents</a> of a lawyer’s cellphone. Incredibly, federal prosecutors in that case are telling a federal judge they can legally keep and use the downloaded data <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtSupplementalResponse-12July2016.pdf">even if the judge rules it was obtained in violation of the Constitution</a>.</p>
<p>In New York City, federal court records reveal the government obtained another search warrant that clearly violated the Fourth Amendment. That one ordered Microsoft to turn over the entire contents of a web-based email account and authorized “<a href="http://clarkcunningham.org/Apple/Cases/Microsoft/USvMicrosoft-2dCir-warrant.pdf">email by email review</a>.”</p>
<h2>It is time for Congress to act</h2>
<p>There have been some preliminary efforts to rein in the FBI. Last spring, a <a href="https://homeland.house.gov/press/mccaul-warner-lead-bipartisan-coalition-to-establish-national-commission-on-digital-security/">bipartisan bill was introduced in Congress</a> that would begin the process. It would create a National Commission on Security and Technology Challenges <a href="https://homeland.house.gov/mccaul-warner-commission-2/">including experts from many sectors</a> such as law enforcement, the technology industry, the intelligence community, and the privacy and civil liberties communities. The commission <a href="https://homeland.house.gov/wp-content/uploads/2016/03/2016.03.03_HR-4651-Commission.pdf">would review the laws about warrants for digital data and recommend changes</a> in how they should be used.</p>
<p>That effort followed the FBI’s <a href="http://www.nytimes.com/news-event/apple-fbi-case">ill-advised attempt to get a court order</a> forcing Apple to create and give to the government software eliminating the user privacy and <a href="https://theconversation.com/us/topics/apple-vs-fbi-25241">security features of the iPhone</a>.</p>
<p>In the wake of this week’s new evidence of further overstepping by the FBI, passing this bill should be one of the first tasks for Congress when it reconvenes after the election. Searches such as the likely illegal one conducted on Weiner’s laptop should be discovered, documented and prevented in the future.</p>
<h2>How to handle the emails now</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143782/original/image-20161029-15816-ixkcpq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Time to act: Attorney General Loretta Lynch.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3ALoretta_Lynch%2C_official_portrait.jpg">U.S. Department of Justice</a></span>
</figcaption>
</figure>
<p>Attorney General Lynch should immediately press Comey for details about what steps he took to determine that these emails were obtained legally. Can the FBI show that a proper warrant authorized seizure of those particular emails? If the agency cannot do so, she should consider the <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">recommendations of several federal judges</a> for how to handle digital data. </p>
<p>Specifically, the messages should be immediately turned over to an independent court officer for any further review. Lynch could, for example, ask the chief judge of the federal district handling the Weiner investigation to appoint a <a href="https://www.law.cornell.edu/wex/special_master">court-supervised special master</a> to take charge of the emails. Using procedures fair to both law enforcement and the owner of the email, that person could determine if they reveal evidence of a crime. And Lynch should explain to the American people exactly what the FBI agents did legally, and admit if they acted outside the law.</p>
<h2>Stepping up to preserve Americans’ rights</h2>
<p>The Fourth Amendment was written in response to the abusive use of search warrants by the government of King George III. Specifically, Americans objected to searches of the homes of political dissidents, <a href="http://www.yalelawjournal.org/forum/apple-and-the-american-revolution-remembering-why-we-have-the-fourth-amendment-1">which examined all a person’s private papers</a> in hopes of finding evidence to imprison him.</p>
<p>In <a href="http://clarkcunningham.org/Apple/History/Wilkes/EntickvCarrington95EngRep807-1765.pdf">one case successfully challenging this practice</a>, the lawyer for the victim of such a search spoke words that ring true today:</p>
<blockquote>
<p>“Ransacking a man’s secret drawers and boxes to come at evidence against him is like racking his body to come at his secret thoughts. Has [the government] a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed; and if it were lawful, no man could endure to live in this country.”</p>
</blockquote><img src="https://counter.theconversation.com/content/67906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The FBI has a history of abusing search warrants to illegally read Americans’ emails. Did the agency just do it again, in the highest of all high-profile situations?Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/656202016-09-21T23:00:24Z2016-09-21T23:00:24ZFeds: We can read all your email, and you’ll never know<figure><img src="https://images.theconversation.com/files/138697/original/image-20160921-21691-wksiq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The feds say they can secretly read all your email.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-423265222/stock-photo-fbi-agent-working-on-his-computer-in-office.html">FBI agent with computer via shutterstock.com</a></span></figcaption></figure><p>Fear of hackers reading private emails in cloud-based systems like Microsoft Outlook, Gmail or Yahoo has recently sent <a href="http://www.nytimes.com/2016/09/16/us/politics/email-hacking-colin-powell-congress.html">regular people and public officials scrambling</a> to delete entire accounts full of messages dating back years. What we don’t expect is our own government to hack our email – but it’s happening. Federal court cases <a href="http://clarkcunningham.org/Apple/Index.html">going on right now</a> are revealing that federal officials can read all your email without your knowledge.</p>
<p>As a scholar and lawyer who started researching and writing about the history and meaning of the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> to the Constitution <a href="http://clarkcunningham.org/Cunningham-MeaningsOfSearch.html">more than 30 years ago</a>, I immediately saw how the <a href="http://clarkcunningham.org/Apple/Index.html">FBI versus Apple controversy</a> earlier this year was <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">bringing the founders’ fight for liberty into the 21st century</a>. My study of that legal battle caused me to dig into the federal government’s actual practices for getting email from cloud accounts and cellphones, causing me to worry that our basic liberties are threatened.</p>
<h2>A new type of government search</h2>
<p>The federal government is getting access to the contents of entire email accounts by using an ancient procedure – the search warrant – with a new, sinister twist: secret court proceedings. </p>
<p>The earliest search warrants had a very limited purpose – authorizing entry to private premises to find and recover stolen goods. During the era of the American Revolution, <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">British authorities abused this power</a> to conduct dragnet searches of colonial homes and to seize people’s private papers looking for evidence of political resistance.</p>
<p>To prevent the new federal government from engaging in that sort of tyranny, special controls over search warrants were written into the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> to the Constitution. But these constitutional provisions are failing to protect our personal documents if they are stored in the cloud or on our smartphones.</p>
<p>Fortunately, the government’s efforts are finally being made public, thanks to legal battles taken up by Apple, Microsoft and other major companies. But the feds are fighting back, using even more subversive legal tactics.</p>
<h2>Searching in secret</h2>
<p>To get these warrants in the first place, the feds are using the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121">Electronic Communications Privacy Act</a>, passed in 1986 – long before widespread use of cloud-based email and smartphones. That law allows the government to use a warrant to get electronic communications <a href="https://www.law.cornell.edu/uscode/text/18/2703">from the company providing the service</a> – rather than the true owner of the email account, the person who uses it.</p>
<p>And the government <a href="http://harvardlpr.com/wp-content/uploads/2013/06/Gagged-Sealed-and-Delivered.pdf">then usually asks that the warrant be “sealed,”</a> which means it won’t appear in public court records and will be hidden from you. Even worse, the law lets the government get what is called a “gag order,” a court ruling <a href="http://clarkcunningham.org/Apple/Cases/GagOrders/GagOrderDecisions.html">preventing the company from telling you</a> it got a warrant for your email. </p>
<p>You might never know that the government has been reading all of your email – or you might find out when you get charged with a crime based on your messages. </p>
<h2>Microsoft steps up</h2>
<p><a href="http://www.nytimes.com/news-event/apple-fbi-case">Much was written</a> about <a href="http://www.npr.org/series/469827708/the-apple-fbi-debate-over-encryption">Apple’s successful fight</a> earlier this year to prevent the FBI from forcing the company to <a href="https://theconversation.com/us/topics/apple-vs-fbi-25241">break the iPhone’s security system</a>. </p>
<p>But relatively little notice has come to a similar <a href="http://clarkcunningham.org/Apple/Cases/MicrosoftWDWash.html">Microsoft effort on behalf of customers</a> that began in April 2016. The <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS-WDWash-1stAmendedComplaint.pdf">company’s suit</a> argued that search warrants delivered to Microsoft for customers’ emails are violating regular people’s constitutional rights. (It also argued that being gagged violates Microsoft’s own First Amendment rights.)</p>
<p>Microsoft’s suit, filed in Seattle, says that over the course of 20 months in 2015 and 2016, it received <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS-WDWash-1stAmendedComplaint.pdf">more than 3,000 gag orders – and that more than two-thirds of the gag orders were effectively permanent</a>, because they did not include end dates. Court documents supporting Microsoft <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftWDWash-Amicus-Cloud.html">describe thousands more gag orders</a> issued against Google, Yahoo, Twitter and other companies. Remarkably, <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvUS%28WDWash%29-FormerOfficialsAmicus.pdf">three former chief federal prosecutors</a>, who collectively had authority for the Seattle region for every year from 1989 to 2009, and the retired head of the FBI’s Seattle office have also joined forces to support Microsoft’s position.</p>
<h2>The feds get everything</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=333&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=333&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=333&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=418&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=418&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138123/original/image-20160916-17008-1eu91gm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=418&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This search warrant clearly spells out who the government thinks controls email accounts – the provider, not the user.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<p>It’s very difficult to get a copy of one of these search warrants, thanks to orders sealing files and gagging companies. But in <a href="http://clarkcunningham.org/Apple/Cases/Microsoft2dCir.html">another Microsoft lawsuit</a> against the government <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/USvMicrosoft-2dCir-warrant.pdf">a redacted warrant</a> was made part of the court record. It shows how the government asks for – and receives – the power to look at all of a person’s email.</p>
<p>On the first page of the warrant, the cloud-based email account is clearly treated as “premises” controlled by Microsoft, not by the email account’s owner:</p>
<blockquote>
<p>“An application by a federal law enforcement officer or an attorney for the government requests the search of the following … property located in the Western District of Washington, the premises known and described as the email account [REDACTED]@MSN.COM, which is controlled by Microsoft Corporation.”</p>
</blockquote>
<p>The <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a> requires that a search warrant must “particularly describe the things to be seized” and there must be “probable cause” based on sworn testimony that those particular things are evidence of a crime. But this warrant orders Microsoft to turn over “the contents of <strong>all</strong> e-mails stored in the account, including copies of e-mails sent from the account.” From the day the account was opened to the date of the warrant, everything must be handed over to the feds.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=267&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=267&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=267&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=336&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=336&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138124/original/image-20160916-17005-1kpmlly.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=336&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The warrant orders Microsoft to turn over every email in an account – including every sent message.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<h2>Reading all of it</h2>
<p>In warrants like this, the government is deliberately not limiting itself to the constitutionally required “particular description” of the messages it’s looking for. To get away with this, it tells judges that incriminating emails can be hard to find – maybe even hidden with misleading names, dates and file attachments – so their computer forensic experts need access to the whole data base to work their magic. </p>
<p>If the government were serious about obeying the Constitution, when it asks for an entire email account, at least it would write into the warrant <a href="http://clarkcunningham.org/Apple/Cases/Waxse/HotmailCase.html">limits on its forensic analysis</a> so only emails that are evidence of a crime could be viewed. But this Microsoft warrant says an unspecified “variety of techniques may be employed to search the seized emails,” including “email by email review.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=165&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=165&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=165&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=208&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=208&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138125/original/image-20160916-16988-17ygblc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=208&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The right to read every email.</span>
<span class="attribution"><span class="source">U.S. District Court for the Southern District of New York</span></span>
</figcaption>
</figure>
<p>As I explain in a forthcoming paper, there is good reason to suspect this type of warrant is <a href="http://clarkcunningham.org/Apple/AppleAndTheAmericanRevolution-DraftAsOf7Sep.pdf">the government’s usual approach</a>, not an exception.</p>
<p>Former federal computer-crimes prosecutor <a href="https://www.law.georgetown.edu/faculty/ohm-paul.cfm">Paul Ohm</a> says <a href="http://www.virginialawreview.org/volumes/content/massive-hard-drives-general-warrants-and-power-magistrate-judges">almost every federal computer search warrant</a> lacks the required particularity. Another former prosecutor, <a href="https://www.law.gwu.edu/orin-s-kerr">Orin Kerr</a>, who <a href="https://isites.harvard.edu/fs/docs/icb.topic1020905.files/SearchandSeizureDigital.pdf#page=49">wrote the first edition</a> of the <a href="http://clarkcunningham.org/Apple/DOJ-Manual-Ch2.pdf">federal manual on searching computers</a>, agrees: “<a href="http://ssrn.com/abstract=2628586">Everything can be seized. Everything can be searched</a>.” Even some federal judges are calling attention to the problem, <a href="http://clarkcunningham.org/Apple/WhatsWrongWithCellPhoneSearchWarrants.html">putting into print their objections to signing such warrants</a> – but unfortunately most <a href="http://clarkcunningham.org/Apple/Cases/Facciola/Facciola-RedactedMac.Com-DistrictJudge.pdf">judges seem all too willing to go along</a>.</p>
<h2>What happens next</h2>
<p>If Microsoft wins, then citizens will have the chance to see these search warrants and challenge the ways they violate the Constitution. But the government has come up with a clever – and sinister – argument for throwing the case out of court before it even gets started. </p>
<p>The government has asked the judge in the case to rule that Microsoft has <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/Microsoft%20v%20DOJ%20Motion%20to%20Dismiss.pdf">no legal right</a> to raise the Constitutional rights of its customers. Anticipating this move, the American Civil Liberties Union <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftvDOJ-ACLUProposedIntervention.pdf">asked to join the lawsuit</a>, saying it uses Outlook and wants notice if Microsoft were served with a warrant for its email. </p>
<p>The government’s response? The ACLU has no right to sue because it <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/US%20v%20Microsoft%20Docket%2033-DOJBriefInOppositionToACLUIntervention.pdf">can’t prove that there has been or will be a search warrant</a> for its email. Of course the point of the lawsuit is to protect citizens who can’t prove they are subject to a search warrant because of the secrecy of the whole process. The government’s position is that no one in America has the legal right to challenge the way prosecutors are using this law.</p>
<h2>Far from the only risk</h2>
<p>The government is taking a similar approch to smartphone data. </p>
<p>For example, in the case of <a href="http://clarkcunningham.org/Apple/Cases/USvRavelo.html">U.S. v. Ravelo</a>, pending in Newark, New Jersey, the government used a search warrant to download the entire contents of a lawyer’s personal cellphone – more than 90,000 items <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-LtrFromFilterProsecutor-19Feb2016.pdf">including text messages, emails, contact lists and photos</a>. When the phone’s owner <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-29Apr2016.pdf">complained to a judge</a>, the <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtResponse-23May2016.pdf">government argued</a> it could look at everything (except for privileged lawyer-client communications) before the court even issued a ruling. </p>
<p>The federal prosecutor for New Jersey, <a href="https://www.justice.gov/usao-nj/meet-us-attorney">Paul Fishman</a>, has gone even farther, telling the judge that once the government has cloned the cellphone it gets to keep the copies it has of all 90,000 items <a href="http://clarkcunningham.org/Apple/Cases/Ravelo/Ravelo-MotionToSuppress-GovtSupplementalResponse-12July2016.pdf">even if the judge rules that the cellphone search violated</a> the Constitution.</p>
<p>Where does this all leave us now? The judge in <a href="http://clarkcunningham.org/Apple/Cases/USvRavelo.html">Ravelo</a> is expected to issue a preliminary ruling on the feds’ arguments sometime in October. The government will be filing a final brief on its motion to dismiss <a href="http://clarkcunningham.org/Apple/Cases/Microsoft/MicrosoftWDWash.html">the Microsoft case</a> September 23. All Americans should be watching carefully to what happens next in these cases – the government may be already watching you without your knowledge.</p><img src="https://counter.theconversation.com/content/65620/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We don’t expect our own government to hack our email – but it’s happening, in secret, and if current court cases go badly, we may never know how often.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/586932016-05-09T00:49:48Z2016-05-09T00:49:48ZDon’t let cybercriminals hide from the FBI<figure><img src="https://images.theconversation.com/files/121432/original/image-20160505-25085-5n028h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Criminals who hide their computers shouldn't go free.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-390209794/stock-photo-hacker-in-the-office.html">Computer criminal via shutterstock.com</a></span></figcaption></figure><p>Imagine that a criminal investigator has identified one or more computers that are part of ongoing criminal activity. Unfortunately, the people operating these computers are hiding them. The machines could be anywhere in the world, using anonymous email or <a href="https://www.torproject.org/">tools like Tor</a> to conceal their location. </p>
<p>The investigator also has a tool, a carefully engineered piece of software, which she calls a “Network Investigatory Technique,” or NIT, that will cause a targeted computer to reveal itself. Once she sends the software to the computer she’s investigating, it will reply with a message saying, “I am at this location.” The rest of the security world calls the NIT “malicious code” (“malcode” for short) and deploying it “hacking,” because the software exploits a vulnerability in the target’s computer, the same way a criminal would.</p>
<p>Federal court rules currently say she can use this tool only if she gets an electronic search warrant from a judge. But the computer could be anywhere: to which court should she go to get the warrant?</p>
<p>This is not a hypothetical problem. Online investigations face this problem all the time, when tracking down fraudsters or those <a href="http://thehill.com/policy/technology/222048-fbi-made-fake-newspaper-website-to-trick-suspect">issuing threats using anonymous emails</a>, botmasters who have compromised thousands of computers around the planet or purveyors of <a href="http://www.nytimes.com/2015/02/05/nyregion/man-behind-silk-road-website-is-convicted-on-all-counts.html">drugs</a> or <a href="https://motherboard.vice.com/read/the-fbis-unprecedented-hacking-campaign-targeted-over-a-thousand-computers">child pornography</a>. The current federal rules of criminal evidence (in particular a section known as <a href="https://www.law.cornell.edu/rules/frcrmp/rule_41">Rule 41</a>) require investigators to seek warrants from a magistrate judge in the federal court district where the target computer is located. </p>
<p>But if investigators don’t know where in the country, or indeed the world, the computer is, the existing rules effectively dictate that there is no judge who could approve a warrant to actually find out its specific location. In essence, the rule is, “The investigator can get a warrant to hack these computers to reveal their location only when she knows where they already are.” That rule might have made sense before the digital age, but in today’s digital world it forces an end to promising investigations.</p>
<h2>Making an improvement to the rule</h2>
<p>At the request of the FBI, the U.S. Supreme Court has <a href="https://www.documentcloud.org/documents/2819194-frcr16-8mad.html#document/p9/a291884">proposed changing the rule</a> to allow any magistrate judge in the country to approve an electronic search warrant under one of two conditions: either the targets are using technological tricks to conceal their location, or the crime being investigated involves a mass break-in, compromising computers in at least five separate federal judicial districts. Congress has until December to review the changes.</p>
<p>The Electronic Frontier Foundation has an <a href="https://www.eff.org/deeplinks/2016/04/rule-41-little-known-committee-proposes-grant-new-hacking-powers-government">excellent summary of the civil liberties objections</a>. They include the potential for the government to seek warrants from sympathetic judges, who might not closely scrutinize requests, or who might accept more spurious definitions of concealment by “technological means,” thereby undermining the law’s protections. They also fear that the FBI may seek to hack computers outside the U.S., and that searches could reach beyond criminals’ equipment and involve innocent people’s computers that had been taken over by wrongdoers.</p>
<p>I am in the minority among my civil liberties colleagues, but I believe this change is necessary, reasonable and proportional. If a computer search would qualify for a warrant if its whereabouts were known, why should simply hiding its location make it legally unsearchable?</p>
<p>The need for these types of searches is not theoretical. The “<a href="http://www.engadget.com/2015/02/08/silk-road-trial-lessons/">Silk Road</a>” case is a prime example. This website, <a href="https://www.torproject.org/docs/hidden-services.html.en">hidden through Tor</a> to make it supposedly impossible to locate, acted as an online eBay for drugs. Until the FBI obtained the server’s location, investigators were stumped, unable to identify the person, called “Dread Pirate Roberts,” who was operating the site. </p>
<p>Once agents identified the computer, all the pieces fell into place, quickly leading to the arrest and subsequent conviction of Ross Ulbricht. The FBI almost certainly hacked the server but <a href="http://arstechnica.com/tech-policy/2015/02/op-ed-ross-ulbricht-got-a-fair-trial-but-not-a-fair-investigation/">never bothered to get a warrant</a> to do so. This was a decision which, but for a bizarre tactical choice by the defense, might have lost the case. Under the revised Rule 41, it would be straightforward to obtain a warrant to hack the server: there was certainly enough probable cause.</p>
<h2>When the FBI takes over a criminal site</h2>
<p>Another large set of cases involve child porn distributed through Tor. The FBI routinely takes over websites that do this, and may for a few days or even a couple of weeks deliver surreptitious software to visitors, software that tracks their location, before taking the site down for good. In cases involving notorious sites like PedoBook and Playpen, the <a href="https://www.lawfareblog.com/examining-fbi-hacking-warrant">FBI may hack hundreds or thousands of computers</a> with a single warrant. </p>
<p>The FBI’s experience in taking over the <a href="https://motherboard.vice.com/read/the-fbis-unprecedented-hacking-campaign-targeted-over-a-thousand-computers">Playpen server</a> is a particularly good example of the need for a revision to Rule 41. The warrant request established probable cause for each computer to be hacked; the malcode identified individual visitors for prosecution (and associated their identities with their user names on the site). </p>
<p>The FBI’s malcode itself was almost certainly reasonable, doing the minimum necessary to identify the target computer to authorities and no more. Even defense experts in a previous case <a href="https://assets.documentcloud.org/documents/2124281/fbi-tor-busting-227-1.pdf">acknowledged that the FBI’s malcode</a> both operated as advertised and did not exceed the scope of the warrant. However, almost all of the targeted computers were outside the federal court district where the FBI ran the captured Playpen server. As a result, this critical violation of the current Rule 41 may very well result in <a href="https://regmedia.co.uk/2016/04/20/nitcasemotiontosuppress.pdf">hundreds of pedophiles going free</a>. </p>
<h2>Measured changes are appropriate</h2>
<p>Hence the need for the measured changes proposed to Rule 41. It doesn’t enable the FBI to get a warrant that lets the agency hack just anywhere. It applies only when the FBI can’t determine where the targets are or when there are simply too many known targets that getting a warrant in every district would result in an explosion of paperwork without actually protecting anybody’s rights. Because if people accept that the FBI should have the right to hack with a warrant and probable cause, extending this authority to enable hacking a computer in an unknown location represents only a small expansion in authority, not some vast overreach.</p>
<p><a href="https://www.cs.columbia.edu/%7Esmb/papers/rsearch.pdf">Despite some people raising concerns</a>, it is also highly unlikely to affect U.S. diplomatic relationships. It’s true that it the rule change could result in the FBI hacking systems outside the United States if the computer’s location is hidden. But no matter their location, target computers aren’t hacked until the FBI has shown probable cause they’re involved in criminal activity in the United States. When this happens the FBI will do what it has done in previous cases like the Playpen case: notify local law enforcement of the evidence collected, and let that country’s authorities take over.</p>
<p>Overall, the change to Rule 41 seems reasonable. It addresses a real-world problem, it comes into play only when a computer’s location is unknown or the targets are too numerous, and does not reduce the key protection and oversight that already limits such hacking: the need for probable cause presented for a judge’s approval and search warrant which specify with particularity what the hacking should search for (with the ability to enforce these restrictions in the code).</p><img src="https://counter.theconversation.com/content/58693/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Weaver receives or has received research funding from the National Science Foundation, Department of Homeland Security office of Science and Technology, and the Naval Research Office. All opinions are his own and not those of his funders.</span></em></p>If a computer search would qualify for a warrant if its whereabouts were known, why should simply hiding its location make it legally unsearchable?Nicholas Weaver, Senior Researcher, Networking and Security, International Computer Science Institute, University of California, BerkeleyLicensed as Creative Commons – attribution, no derivatives.