GigaOM » fourth-amendment

Can a school get your kid’s Facebook password? Judge says no

Jeff John Roberts — Thu, 13 Sep 2012 20:46:56 +0000

How far can a school go in punishing students for what they do on Facebook? One Minnesota middle school crossed the line, leading a federal judge to say it violated one girl’s basic rights.

The case involves a 12-year-old girl who used Facebook to diss the hall monitor, writing “[I hate] a Kathy person at school because [Kathy] was mean to me.” She also used the social network to talk about “naughty things” with a boy. When one of her “friends” ratted on her, the girl wrote on her Facebook wall, “I want to know who the f%$# told on me.”

Three school officials, including a counselor and a taser-wearing cop, came down hard. They interrogated her in an office and badgered the sobbing girl until she handed over her passwords. They proceeded to go through her Facebook and email accounts to find the “naughty” discussion she had with the boy.

Now, the school is in hot water. U.S. District Judge Michael Davis ruled that the school appears to have violated the girl’s free speech and privacy rights. He wrote:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door … The movement of student speech to the internet poses some new challenges, but that transition has not abrogated the clearly established general principles which have governed schools for decade

Davis noted that there is a clear exception to the rule that schools can’t infringe on students’ free speech rights — when there is a clear threat of violence with a connection to the school. This obviously wasn’t the case in Minnesota since the girl’s Facebook activity took place outside of school.

The decision, first reported by Seattle lawyer Venkat Balasubramani, comes at a time of a growing backlash against school and workplace attempts to pry into people’s social media lives.

Davis’ ruling also provides an interesting tour of other cases in which students push the social media envelope, sometimes in very unpleasant ways. In one example, a court upheld the speech rights of a student who made a MySpace parody of his principal:

the student featured a picture of the principal (taken from a school website) and stated that the principal was “too drunk to remember” his birthday and was also a “big steroid freak,” a “big whore,” and a “big fag.”

Students’ social media activity may be upsetting or disrespectful but it’s nothing new — Bart Simpson, the Beastie Boys and others have trash-talked teachers since the dawn of school. The platform is different but the behavior is not.

Judge Davis’ decision , which came in response to the school’s request to dismiss, is here:

Minnesota Student First Amendment
(Image by 3445128471 via Shutterstock)

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‘Friends’ can share your Facebook profile with the government, court rules

Jeff John Roberts — Wed, 15 Aug 2012 15:06:06 +0000

A federal judge has ruled that investigators can go through your Facebook profile if one of your friends gives them permission to do so. The decision, which is part of a New York City racketeering trial, comes as courts struggle to define privacy and civil liberties in the age of social media.

In an order issued on Friday, US District Judge William Pauley III ruled that accused gangster Melvin Colon can’t rely on the Fourth Amendment to suppress Facebook evidence that led to his indictment. Colon had argued that federal investigators violated his privacy by tapping into his profile through an informant who was one of this Facebook friends.

The informant’s Facebook friendship served to open an online window onto Colon’s alleged gangster life, revealing messages he posted about violent acts and threats to rival gang members. The government used this information to obtain a search warrant for the rest of Colon’s Facebook account. The Colon information is part of a larger investigation into crack-dealing and murder in the Bronx.

Judge Pauley III’s ruling is significant because it is the latest in a series of cases that defines how and when police can search social media.

See also: Social Media judge says tweets are for cops

In the Bronx case, the judge found that Colon couldn’t stop his Facebook friends doing what they liked with the information he revealed:

Colon’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted-including sharing it with the Government.

To support this position, Judge Pauley III cited a case that confirmed the government can listen in on phone calls without a warrant provided that one of the people on the call gives it permission to do so.

Ironically, Colon’s current account suggests that the government’s ability to peruse Facebook profiles may have become even easier since the introduction of the Facebook Timeline. The feature can in some cases reveal past events and status updates to the public unless a user changes his or her privacy settings.

What appears to be Colon’s account (cited in the court case as “Mellymella Balla” in the Bronx) can now be seen by the public. Here is a screenshot from his profile:

The case may also raise the question of whether social media companies are providing an adequate explanation of their privacy settings to all Americans. You can read the ruling itself here:

Facebook Privacy Ruling

(Image by Fisun Ivan via Shutterstock)

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Twitter raises stakes in ‘who owns your tweets’ fight

Jeff John Roberts — Thu, 19 Jul 2012 17:11:28 +0000

Twitter announced today that it is filing an appeal in a case that is helping to define privacy rights in the social media era.

The case turns on a subpoena by which New York City wants Twitter to turn over the account information of Occupy Wall Street protestor Malcolm Harris. In a controversial decision in October, Judge Matthew Sciarrino Jr. ruled that Harris couldn’t challenge the subpoena because he didn’t have any rights in the Twitter account and therefore lacked standing.

After the court booted Harris from the case, Twitter itself stepped in to challenge the subpoena. Early this month, the same judge ruled that no privacy rights were at stake because Twitter is a public forum akin to shouting in the street. The judge ultimately decided that prosecutors could have access to the account after he conducted a closed-court review of which parts of the account were relevant (for a detailed overview of the case, see: Social Media Judge says tweets are for Cops.

Twitter has now responded by announcing an appeal on, well, Twitter. “We’re appealing the Harris decision. It doesn’t strike the right balance between the rights of users and the interests of law enforcement,” wrote intellectual property lawyer Benjamin Lee in a tweet. The news was first reported by All Things D.

A higher court is likely to hear the appeal because the Harris affair is an important test case of privacy and social media, and because Judge Sciarrino Jr.’s rulings contain questionable reasoning and a bombastic writing style. In his rulings, the judge holds himself out as an authority on social media and uses Twitter-style hashtags with words like “#quash” and “#subpoena.”

Sciarrino Jr. was recently disciplined by New York’s judicial oversight body after lawyers complained about his attempts to friend them on Facebook. He was transferred to Manhattan from Staten Island as part of the disciplinary process. If it takes the appeal, a higher court will likely provide more guidance into how and when police can search social media.

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Charts: If you’re concerned about privacy, don’t use your cell phone

Derrick Harris — Tue, 10 Jul 2012 01:30:58 +0000

Law enforcement and other government bodies, it seems, aren’t shy about asking for or demanding data about users from wireless carriers. In an article Monday morning, the New York Times highlighted some of the statistics about this activity, based on data several companies provided to U.S. Congressman Ed Markey (D-MA) in response to a letter from his office on the issue. All told, wireless providers fielded about 1.3 million requests for user data last year although, as the article points out, the number was almost certainly much higher due to lax record-keeping.

If you’re concerned about privacy, this should be kind of scary. There’s some solace in the fact that most providers claim they deny requests they feel are overbroad or unauthorized, but they comply with most and the numbers are rising. A couple of carriers, including Verizon and T-Mobile, noted user-data request increases in the 15 percent per-year range. Further, as some companies explain in their responses to Rep. Markey, many requests ask for information on numerous parties or location data that might identify everyone who pinged off a particular tower.

Here’s a little chart I made comparing the estimated number of requests for user data from wireless providers in 2011 to that of Google. I also threw in Twitter’s recently released number from the first half of 2012, which, at a mere 679, doesn’t even show up on the chart.

Here’s a breakdown of requests in 2011 just by the carriers that provided information for last year, although all numbers are estimates because (1) some providers just provided estimates and (2) they weren’t entirely clear in differentiating between types of requests. Sprint, for example, claimed more than 300,000 court orders for wiretaps, pen register/trap and trace devices, and location information over the past five years, but also noted “approximately 500,000 subpoenas from law enforcement” last year alone.

Several providers were a little more vague than others. MetroPCS claimed “an average of fewer than 12,000 requests per month from January 2006 through May 2012.” Cricket said requests grew steadily “from a low of approximately 24,000 in 2007 to a high of approximately 42,500 in 2011.” C Spire claimed approximately 12,500 requests over the past five years, while T-Mobile declined to release any numbers. Here is AT&T’s rather detailed breakdown.

Aside from the numbers, the Times article also notes varying degrees of consistency with which law-enforcement agencies go about requesting user data in accordance with federal surveillance laws. Of course, this isn’t made any easier with ever-changing technologies and data sources, such as GPS, that begin to blur the lines between mere requests for user data and suspect surveillance that the Supreme Court recently declared unconstitutional without a warrant.

It’s yet another reason that Congress needs to get its Fourth Amendment act in order, redrafting outdated legislation to account for new technologies not even considered when many laws about data privacy were written decades ago. In the case of data such as that stored with cloud service providers or wireless carriers, that might mean focusing laws on the type of data authorities hope to access rather than where it’s located — a variable that changes with each new wave of technology.

Given the right case, maybe the Supreme Court will spur Congress to act and offer enhanced protection to everything we’re all but forced to share digitally. In United States v. Jones, the case mentioned above, Justices Alito and Sotomayor both wrote concurring opinions expressing their discomfort with how easily authorities can access digital data stored with service providers. As of 2010, many wireless providers were storing user data for years.

Sotomayor called the third-party doctrine “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” adding that she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Feature image courtesy of Shutterstock user Johan Swanepoel.

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Social media judge says tweets are for cops

Jeff John Roberts — Mon, 02 Jul 2012 20:49:54 +0000

In a closely-watched case tied to last year’s Occupy Wall Street protests, a New York judge ruled last week that tweets are no different from words shouted in the street and ordered Twitter to turn over a user’s account to prosecutors. The judge, who styles himself a social media expert, added that the Founding Fathers and “countless soldiers” risked their lives for the right to tweet or post on Facebook but that “there are still consequences for your public posts.”

The case itself involves Malcolm Harris, one of hundreds charged with disrupting traffic after a protest on the Brooklyn Bridge last summer. To build the case, prosecutors asked Twitter to turn over Harris’s account, which contains not just a record of his public messages but could also contain more private information such as the location of his tweets, personal messages and deleted items.

The case attracted media attention after Harris applied to quash the subpoena directed at Twitter. In April, Judge Matthew Sciarrino Jr. ruled that Harris couldn’t sue in the first place because the tweets in question belonged to Twitter and not to him. Sciarrino Jr. also lambasted “widely-believed” but “mistaken” notions about online privacy and attempted to show off his fluency in social media by adopting Twitter’s hashtag convention to write that the motion to “#quash” was “#denied.”

Twitter responded to the April ruling by moving itself to quash the subpoena itself — an effort that came up short today. The company said in an email statement:

“We are disappointed in the judge’s decision and are considering our options. Twitter’s Terms of Service have long made it absolutely clear that its users *own* their content. We continue to have a steadfast commitment to our users and their rights.”

Tweets: Do they belong to you, Twitter or the street?

The Harris ruling is larded with flamboyant rhetoric but also raises important questions about how privacy law should apply to social media. In ruling against Twitter and Harris, Sciarrino Jr. invoked a 1976 case in which the Supreme Court ruled that a bank didn’t violate user privacy when it turned over customer records because the records were the bank’s property. This raises the question of whether our Facebook and Twitter accounts are just like bank and phone records.

Strangely, Sciarrino Jr. said that Harris’ tweets were Twitter’s property but also found that social media companies were just like witnesses who overhear something shouted in the street:

Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.

The judge holds himself out as an authority on social media by dropping company names and citing recent law journal articles on social media and the judiciary. He has also learned about it firsthand; in 2009, he was disciplined by court authorities and transferred from Staten Island to Manhattan after lawyers complained about him friending them on Facebook.

Sciarrino Jr.’s analysis of the Harris decision is interesting, and perhaps troubling, because it appears to offer no legal protection at all to social media accounts. On one hand, the judge concludes that users have no right to object to account searches (or even know about them) because the accounts are not their property. But at the same time, he characterizes Twitter and Facebook as passive witnesses whose role is to simply pass on information.

The Founding Fathers and the Right to Tweet

Sciarrino Jr. finishes with a flourish, noting that “Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).”

This analogy is intriguing but also problematic. As the judge points out, some founding fathers did write anonymously but they were able to keep their anonymity. Under the judge’s reasoning in the Twitter decision, the publisher who printed the Federalist Papers would be forced to identify the authors — and the authors would have no legal rights at all.

Sciarrino Jr.’s decision also fails to address the issue of how much information social media companies must turn over to authorities. The judge points to search engines like Politwoops and Tweleted (services that collect deleted tweets) in order to emphasize that our tweets are inherently public information available to all. But he does little to acknowledge that our Twitter and Facebook accounts contain not just public utterances, but also a wealth of more personal information that we don’t intend for others to see.

The decision, which was first reported by the New York Law Journal and can be read here, means that Twitter must turn over the bulk of Harris’s account to the court which will then determine which parts are relevant to the prosecution.

It’s not immediately clear if Twitter will appeal the decision. The American Civil Liberties Union, which filed a brief on behalf of Harris and Twitter, issued a statement today:

“What is surprising is that the court continued to fail to grapple with one of the key issues underlying this case: do individuals give up their ability to go to court to try to protect their free speech and privacy rights when they use the Internet? As we explained in our brief, the answer has to be no.”

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More iPhones subject to search warrants, iPads too

Jeff John Roberts — Wed, 02 May 2012 19:42:13 +0000

A survey of court records reveals that a growing number of iPhones and iPads are the target of forensic examinations by federal agents. The trend shows how mobile devices are replacing computers in daily life, and also highlights ongoing search and seizure issues in the digital era.

A Spike in Search Warrants

A judge granted the first warrant to search an iPhone just months after the device was unveiled. In August of 2007, the Secret Service obtained permission to search Joseph Siddon’s phone after he was caught with dozens of fake ID’s at a Buffalo airport.

Since then, federal judges have granted many more warrants for investigations that range from bank scams to drug trafficking. The federal court system PACER shows 50 cases listing “iPhone” as the “defendant” but this number is likely higher and does not include state court cases.

The search requests have also become more frequent. While the record lists five warrants for 2009, this screenshot shows that number has been surpassed already this year:

Starting last year, federal agents began directing warrants at iPads as well. The first of these popped up in Wisconsin after an officer told a judge that ”An Apple 16 GB iPad which is in the care and custody of the DEA” was likely to contain evidence about an illegal sports betting ring.

Since then, there have been at least five other federal warrants aimed at iPads.

Smartphones and the police’s data-sucking vampire

The uptick in iWarrants reflects the simple fact that seizing a smartphone or tablet can be as valuable to authorities as grabbing a crook’s hard drive.

In many cases, the payload may be even greater. Police can get not only emails and browsers histories but a also plethora of social data from apps like Twitter and Facebook — much of which is permanently baked into the device.

As law student Amanda Brill explains in a recent paper, companies like Cellbrite provide police with forensic tools that can:

“[D]ump the entirety of your phone…all of your text messages, emails, videos, and photos – even the ones you deleted – Google Map queries…web searches, passwords, call logs…your phone’s entire file system.” This information is “all timestamped, all geotagged, all providing a digital recreation of the way your physical existence projects itself into the cellular ether.”

The passage quotes tech site Gizmodo which described Cellbrite as “The Handheld Dracula that Sucks your entire life from your phone.”

Brill says the forensic technology can be deployed not only in a crime lab but “in the field” as well.

Fading Privacy rights

The reason we have search warrants in the first place is to ensure that the police and government must go through someone — a judge — before they can get into your stuff in the first place. The warrants also draw strict lines around what can and can’t be searched: Your car but not your house, for example, or your home but not your computer.

From this perspective, the surge in i-related warrants is actually a good thing. It shows that Fourth Amendment protections still exist for the places where, in the courts’ words, we have “a reasonable expectation of privacy.”

Unfortunately, those protections are not holding up so well in the bigger picture.

One big problem is a rule that lets police search without a warrant in the case of an arrest. This makes sense to ensure a suspect doesn’t have weapons or contraband but it is unclear why the exception should also let cops get into the contents of a smartphone. While some courts have put brakes on this practice, others have said it is fair game.

And in the cases where there is a warrant, courts are drawing no lines around which parts of the iPhone can be searched and which cannot. This is different from computer warrants which often set limits on what investigators can look for; police in a drug investigation, for example, might be able to search a hard drive for narcotics data but not for evidence of blackmail (unless there was probably cause for that too).

It may not make sense to allow police to search some parts of an iPhone but not others. But in age where our phones contain not just our own lives but those of our friends, it’s time to start redrawing some lines.

iPhone Search Warrant Example Copy

Photo courtesy of Shutterstock user [Everett Collection].

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OWS protestor doesn’t own his tweets, judge rules

Jeff John Roberts — Tue, 24 Apr 2012 13:51:36 +0000

In a candid ruling, a New York judge said a protester can’t stop prosecutors from searching his Twitter account because he doesn’t own the tweets in the first place.

Judge Matthew Sciarrino Jr. cited a “widely-believed” but “mistaken” notion about online privacy rights and said that search and seizure protections don’t apply because we “do not have a ‘physical’ home on the Internet.”

The ruling, which grows out of the Occupy Wall Street protests, reinforces a troubling legal trend that declares people have no privacy right in their online communications — even though they spend more and more of their time on services like Twitter and Facebook. Ironically, the judge acknowledged as much:

The reality of today’s world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate..

The communications in this case were the tweets of Malcolm Harris, who was charged with disorderly conduct after marching on the roadway of the Brooklyn Bridge. Tweets, by their nature, are public communications, but a search of his Twitter account would also reveal more private information. As the court explained, “Twitter collects many types of user information, including IP address, physical location, browser type, mobile carrier among other types.”

In his ruling, Judge Sciarrino Jr. compared Twitter and email accounts to bank records. He cited a 1976 case in which a divided Supreme Court said a defendant had no right to stop searches of his bank statements because the records were the property of the bank.

In blunt language, the judge explained:

Here, the defendant has no proprietary interests in the @destructuremal account’s user information and Tweets … Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his.

Twitter itself has a history of aggressively standing up for the rights of its users by notifying them when law enforcement wants to search their accounts (other sites like Facebook routinely pass on user profiles without notifying them).

The notification process allows users an opportunity to challenge the searches in court and ensure they are not overly broad. Rulings like that of Judge Sciarrino Jr., however, undermine that ability by saying that users don’t have a right to get involved in the first place — even though it is their data at stake:

The widely believed (though mistaken) notion that any disclosure of a user’s information would first be requested from the user and require approval by the user is understandable, but wrong. While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet. [..] As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes. However, that “home” is a block of ones and zeroes stored somewhere on someone’s computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers.

The judge also used the ruling to show off his fluency with Twitter itself. Referring to the microblog’s convention of using hashtags as keywords, he noted that Harris’s motion to “#quash” the subpoena was “#denied.”

The judge’s social media prowess was also on display in 2009 when he was disciplined for friending lawyers on Facebook.

Here is the ruling itself:

OWS Twitter Copy

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Supreme Court sidesteps digital privacy … for now

Derrick Harris — Tue, 24 Jan 2012 20:20:58 +0000

On Monday, the Supreme Court deemed it unconstitutional in most cases to use GPS to track suspects without first obtaining a warrant — calling the attachment of a GPS device to a suspect’s property a trespass — but the Court declined to address some major privacy issues also at play in the case. As I explained back in November, the case, United States v. Jones, was technically about GPS tracking but potentially could have major implications with regard to how much digital data law enforcement agencies are able to collect and analyze without a search warrant.

Here are three big questions the Court didn’t answer, but that seem to be weighing heavily on several Justices’ minds and might just arise again in future cases:

1. How much data is too much?

In concurring with the majority opinion, Justice Samuel Alito (along with three other justices) was quick to point out while he agreed with the outcome, the majority missed the point almost entirely. One of his biggest concerns is that it’s not the physical trespass that’s troubling, but the amount of information gathered over a long time: “[T]he Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor ….”

Alito calls it an “incongruous result” that using GPS to track someone even briefly would violate the Fourth Amendment, but tracking someone for four weeks using aerial surveillance and unmarked cars would not. And, as he points out, it’s easier than ever to obtain location information about suspects using new means such as in-car GPS units (e.g., OnStar) or GPS data collected by wireless providers. In most cases, he seems to think, a brief glance at data is fine — even if it involves installing a GPS device — but a long-term operation is not.

Justice Sonia Sotomayor offered her own concurring opinion in which she expanded Alito’s concerns about the length of surveillance to include the amount of information that surveillance produces. “In cases involving even short-term monitoring, some unique attributes of GPS surveillance … will require particular attention,” she wrote. “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations…. The Government can store such records and efficiently mine them for information years into the future.”

2. What do citizens really “disclose”?

Sotomayor also seized upon Alito’s concern over the relative ease with which authorities might obtain warrantless location data from other sources, such as wireless providers. She called the so-called third-party doctrine “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Think of all the information our ISPs, wireless providers, online retailers and social media platforms have about us.

In calling for the reconsideration of this doctrine to comport with the 21st-century way of life, Sotomayor questioned whether secrecy is still a necessary prerequisite for constitutional privacy. “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection,” she wrote.

3. When is data greater than the sum of its parts?

The underlying theme of all this discussion, as both Alito and Sotomayor point out, is the relative ease with which authorities might now obtain and analyze all this information about citizens. “In the pre-computer age,” Alito noted, “the greatest protections of privacy were neither constitutional nor statutory, but practical.”

Now, however, authorities could obtain location data, call records, online purchases, certain emails, lists of social media acquaintances, you name it, all without a warrant. Add in high-powered, sometimes low-cost big data tools for storing and analyzing that data, and suddenly, the police might be able to piece together a story that wouldn’t be obvious from looking at any of that information with the naked eye. For an example of what’s possible even without subpoenaing personal records, look at how one city attorney used publicly available information to create a social network map that helped convict a handful of slumlords.

The Court or Congress might never place limitations on what data authorities can use or the techniques authorities can use to analyze it, but the Justices’ acknowledgement of technical advances means they might be willing to limit how easily certain data can be accessed.

Feature image courtesy of Flickr user nrkbeta; social map courtesy of Orgnet.com

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Dissecting the data: 5 issues for our digital future

Tue, 15 Nov 2011 08:01:00 +0000

When it comes to the promise of data as the currency of the web, the current state of affairs has privacy advocates and many consumers up in arms. But it doesn’t have to be the one-sided affair it is today, in which companies have all the data and all the rights, and we shouldn’t have to be afraid of who’s doing what with our information. With laws, products, practices and education, data can become a far more valuable currency than cash ever was. Keeping that in mind, this research note examines five issues that must be addressed by policy makers and entrepreneurs so that they can deliver on our data-driven digital future. Companies mentioned in this report include Twitter, Facebook and Foursquare. For a full list of companies, and to read the full report, sign up for a free trial.

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Connected world: the consumer technology revolution

Thu, 10 Nov 2011 08:01:08 +0000

Connectivity changes everything. That’s the credo driving just about every corner of our day-to-day lives. As human beings, we are now connected to one another through not just our social networks but also our cars, the books we read, the albums we download and even our own health and wellness habits (to name just a few areas). With that in mind, GigaOM Pro has singled out certain areas in the technology industry where we see this shift to constant connectivity taking place most drastically.

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