Fairfax County Ad Hoc Police Commission

[cclaxton]

Cody, I'm not trying to be a jerk when I say this, but it appears you have a misunderstanding about how the criminal justice system works and what constitutes a 4th Amendment violation (at least as far as the courts are concerned). Your personal opinion on what violates the 4th Amendment does not line up with what the courts have ruled for decades. And what the state legislatures have passed as law. The power to issue subpoenas is well established.

The short version is this: The 4th Amendment protects a person, their house, their papers and effects. The key word is THEIR. The 4th Amendment is an INDIVIDUAL right. When I obtain a subpoena for records from a cell phone company, I'm obtaining records held by a 3rd party, not the individual under investigation. Depending on the evidence being sought, a subpoena may not be enough. For most documentary evidence (that isn't medical or some other established privilege in nature), a subpoena/Duces Tecum is all that is needed. Along the same lines, you don't need a warrant to have a witness testify at trial or grand jury. You need a subpoena. Once they get to the hearing they can be compelled to testify by a judge, right? That's evidence. Same principle here. Papers can't testify, they can only be produced as evidence. The appropriate time to object to any evidence obtained via a duces tecum (documents) or testimony obtained via a subpoena ad testificandum (used to compel a person to testify at grand jury ) is later on in a motion to suppress. Any issues regarding privilege are hashed out there. Most of the companies we issue subpoenas to have legal counsel of their own who know what is privileged and what isn't. They aren't shy about arguing privilege and they can file a motion to have the subpoena quashed if they think there's a privilege issue. This is just basic criminal procedure.

Sorry, didn't mean to lecture.

My reading of this Bill is that it will give the VA AG the power to issues subpoenas in certain cases, just like the Commonwealth Attorneys already have the power to do. Maybe I'm missing something, but I can't see where this will get vetoed.

Lon,
Thanks for the posting. Not being a jerk at all. I appreciate your explanation.
First, it is my understanding that this law allows law enforcement or prosecutors to simply say: We need this information (often internet/email) related to an investigation regarding legal violations. This would ordinarily require a search warrant issued by a judge who will at challenge prosecutors to show some evidence or witness that can justify the warrant. With this legislation, prosecutors and LE's can simply demand any information and justify it with a simple: ongoing investigation or wrongdoing. That is, in my view, a gutting of the 4th Amendment. *Maybe* you could challenge the evidence gained, but if it's incriminating (and they ALWAYS try to find *something* to justify their search), the cat is out of the bag...no going back.

I think our 4th Amendment rights have been slowly whittled away by these instruments as well as other similar instruments so that we effectively have a Law Enforcement situation where they can look at anything they want and worry about the consequences later, hoping they will find *something* incriminating so that the search/subpoena/warrant was justified.

My understanding of the standard subpoena process for criminal cases is that a subpoena is issued to a person or business to provide specific information. The attorneys for that person or business have the opportunity to establish the validity and/or challenge the subpoena based on privilege or protection or it could be issued for the wrong person, or be completely invalid and be challenged. That challenge would go before a judge and the judge would hear whether privilege, protection or validity are at play. The judge could quash the subpoena or establish which parts of the subpoena may infringe on privilege or protections. This happens all the time in civil litigation (some of which I have first hand knowledge.)

Papers/Documents are still evidence. Let's not forget that evidence, especially digital records can be easily falsified with no evidence of editing. Some servers will keep records of WHEN an edit occurred, but rarely (some gov't operations maybe) do they track WHAT content was edited. With just a little bit of technical skills, someone can hack into a neighbors WiFi network, edit some documents, or post some incriminating content (child porn) and then submit an anonymous report to the police about their neighbor. All that can be done without the neighbor knowing, and then LE can sneak and peek on neighbor's computers and find the evidence, and before you know it the neighbor is no longer a nuisance. Parking problem solved. And, the neighbor and his attorney have to try and challenge that in-court AFTER the court/prosecutors have already seen the evidence of a child porn neighbor. (And, of course, prosecutors never make mistakes...that's why we rarely see any claims of wrongful prosecution, right?).

The 4th Amendment right was established for GOOD CAUSE. We should be able to live by it and not flush it down the toilet because we think the means justifies the ends.
Cody

[HCM]

Cody,

What you are describing is some type of sneak and peek warrant allowing law-enforcement to legally remotely hack into someone's home computer? I ask this for clarification because what you are describing is NOT, what is authorized by the bill posted earlier in this thread. The bill appears to be clearly targeted towards subpoenas for information from third-party providers. For example, if a detective working a human trafficking case involving minor children being offered for prostitution on websites like craigslist or Backpage.com subpoenas the website operator for information on who posted the ad, do you believe that craigslist or Backpage should give the pimp heads up about the subpoena so they can kill the child or move them out of state?

You normally do not have a life or death steaks and civil litigation, which is why there are some differences between the civil and criminal subpoena processes.

Please reread what Gadfly and Lon wrote and the text of the bill.

[joshs]

Cody, I'm not trying to be a jerk when I say this, but it appears you have a misunderstanding about how the criminal justice system works and what constitutes a 4th Amendment violation (at least as far as the courts are concerned). Your personal opinion on what violates the 4th Amendment does not line up with what the courts have ruled for decades. And what the state legislatures have passed as law. The power to issue subpoenas is well established.

The short version is this: The 4th Amendment protects a person, their house, their papers and effects. The key word is THEIR. The 4th Amendment is an INDIVIDUAL right. When I obtain a subpoena for records from a cell phone company, I'm obtaining records held by a 3rd party, not the individual under investigation. Depending on the evidence being sought, a subpoena may not be enough. For most documentary evidence (that isn't medical or some other established privilege in nature), a subpoena/Duces Tecum is all that is needed. Along the same lines, you don't need a warrant to have a witness testify at trial or grand jury. You need a subpoena. Once they get to the hearing they can be compelled to testify by a judge, right? That's evidence. Same principle here. Papers can't testify, they can only be produced as evidence. The appropriate time to object to any evidence obtained via a duces tecum (documents) or testimony obtained via a subpoena ad testificandum (used to compel a person to testify at grand jury ) is later on in a motion to suppress. Any issues regarding privilege are hashed out there. Most of the companies we issue subpoenas to have legal counsel of their own who know what is privileged and what isn't. They aren't shy about arguing privilege and they can file a motion to have the subpoena quashed if they think there's a privilege issue. This is just basic criminal procedure.

Sorry, didn't mean to lecture.

My reading of this Bill is that it will give the VA AG the power to issues subpoenas in certain cases, just like the Commonwealth Attorneys already have the power to do. Maybe I'm missing something, but I can't see where this will get vetoed.

This is an oversimplification of the third-party doctrine. The question isn't only who holds the records, but also whether the individual has a reasonable expectation of privacy in those records/communications notwithstanding the fact that they are held by a third party. The often cited case for the third party doctrine is Smith v. Maryland, 442 U.S. 735 (1979), but that case only dealt with the numbers dialed into a specific telephone, and not the contents of calls themselves.

There are also numerous statutory protections for stored communications that essentially apply the standard 4A framework to stored communications. The widespread existence of these laws may actually affect the reasonable expectation analysis conducted in Smith. See, e.g., https://www.eff.org/deeplinks/2014/0...lths-declining.

[cclaxton]

Cody, What you are describing is some type of sneak and peek warrant allowing law-enforcement to legally remotely hack into someone's home computer? I ask this for clarification because what you are describing is NOT, what is authorized by the bill posted earlier in this thread. The bill appears to be clearly targeted towards subpoenas for information from third-party providers. For example, if a detective working a human trafficking case involving minor children being offered for prostitution on websites like craigslist or Backpage.com subpoenas the website operator for information on who posted the ad, do you believe that craigslist or Backpage should give the pimp heads up about the subpoena so they can kill the child or move them out of state? You normally do not have a life or death steaks and civil litigation, which is why there are some differences between the civil and criminal subpoena processes. Please reread what Gadfly and Lon wrote and the text of the bill.

If a citizen/suspect has no internet connection or private network connection with a third party carrier, then they would not be able to use an administrative subpoena to collect the data according to my reading. However, in this connected world EVERYBODY has a network connection of some type. Whether it's cell phone data or private VPN or internet or dialup (who has this?), we live in a connected world. Once you are connected, servers are collecting information, whether it's Google, Yahoo, Facebook, Microsoft, Apple, Verizon, AT&T, security software, electronic banking, paypal, etc. They are all looking for updates, authenticating against servers, etc. Most people expect this data to be private, and based on what Josh posted, it seems like the courts are moving in that direction, certainly many states are.

It would be very easy to hack a person's computer, place something on that computer that generates network data that would look like a violation to LE. I am sure LEO's who think they are on to a child porn subscriber wouldn't ever do such a thing, right? After all, even though it would be nearly impossible to track the hack, they are all honorable, right? (The means never justifies the ends, right?) Or, an annoyed neighbor would never do such a thing, right? Or a soured ex-spouse would never....right?

You can't trust the integrity of the data going over these networks. There is no way to establish a chain of evidence. It makes it very easy to frame someone. And, you don't even know it might be happening.

It boggles my mind that we somehow thing the 4th Amendment should be infringed *more* because it's a criminal case as opposed to a civil case. I know some divorcees who might disagree with you.

And, the fact there is no judicial oversight for the subpoena means prosecutors are just free to ask for anything. And the service providers are protected from unlawful disclosure or mistakes.

And we don't find this alarming?

Or, do we just want a police state because we can catch sexual predators easier?

Cody

[ford.304]

So, wading in to go back a few pages -- what I see from this discussion:

1. No knock raids are generally considered to be a bad idea by civil liberties advocates *and* the serious cops on this forum.

2. Actual SWAT teams are super expensive, unlikely to shoot someone accidentally, and also don't generally like serving no-knock warrants for dumb things.

3. Civil liberties advocates mistakenly call the "four half-trained guys in balaclavas" in some police forces, who *do* execute no-knock warrants, SWAT. This really annoys the real SWAT guys, and muddies the debate (and leads to some dumb reform suggestions).

4. Police departments in this country are many and varied, and their policies on no knock raids and similar vary significantly as well. Some places require extreme surveillance and checking. Others are more lax. All still require a judge's signature (who may be more or less strict himself). Even when using extreme care, mistakes can be made because we are all human.

5. Police do a hard, shitty job, and civilians don't know the half of it. This makes it difficult to have discussions on the topic without sounding anti-cop, unappreciative, or just ill-informed on specifics.

So, my question for the cops here is -- as a civilian who cares about NOT shitting on good police departments and cops, while still looking to reform the other departments whose policies I find dangerous and misguided... what terms should we (as civil rights advocates) be using to focus this debate?

What *should* we call the teams of guys doing no-knock raids to avoid evidence destruction, not loss of life, who aren't SWAT (but want to dress like them because it makes them feel cool).

How can we suggest reforms that need to affect *many* or *some* departments without attacking *all* departments?

[HCM]

If a citizen/suspect has no internet connection or private network connection with a third party carrier, then they would not be able to use an administrative subpoena to collect the data according to my reading. However, in this connected world EVERYBODY has a network connection of some type. Whether it's cell phone data or private VPN or internet or dialup (who has this?), we live in a connected world. Once you are connected, servers are collecting information, whether it's Google, Yahoo, Facebook, Microsoft, Apple, Verizon, AT&T, security software, electronic banking, paypal, etc. They are all looking for updates, authenticating against servers, etc. Most people expect this data to be private, and based on what Josh posted, it seems like the courts are moving in that direction, certainly many states are.

It would be very easy to hack a person's computer, place something on that computer that generates network data that would look like a violation to LE. I am sure LEO's who think they are on to a child porn subscriber wouldn't ever do such a thing, right? After all, even though it would be nearly impossible to track the hack, they are all honorable, right? (The means never justifies the ends, right?) Or, an annoyed neighbor would never do such a thing, right? Or a soured ex-spouse would never....right?

You can't trust the integrity of the data going over these networks. There is no way to establish a chain of evidence. It makes it very easy to frame someone. And, you don't even know it might be happening.

It boggles my mind that we somehow thing the 4th Amendment should be infringed *more* because it's a criminal case as opposed to a civil case. I know some divorcees who might disagree with you.

And, the fact there is no judicial oversight for the subpoena means prosecutors are just free to ask for anything. And the service providers are protected from unlawful disclosure or mistakes.

And we don't find this alarming?

Or, do we just want a police state because we can catch sexual predators easier?

Cody

Actually there have been several cases where people have been caught planting child porn on people's computers to settle personal grudges as well as people using their neighbors wifi to download child porn. The key part being they were caught. It's a known issue and one addressed during forensic examination of seized computers. There was a recent federal appeals court decision which involved detectives using "mooch finder" software to exonerate a person whose neighbor was using their unsecured wifi to download child porn.

The courts will continue to apply the checks and balances of the 4th amendment to the digital age but there are some practicalities which cannot be avoided if you are going to police a 21st century society.

[cclaxton]

Actually there have been several cases where people have been caught planting child porn on people's computers to settle personal grudges as well as people using their neighbors wifi to download child porn. The key part being they were caught. It's a known issue and one addressed during forensic examination of seized computers. There was a recent federal appeals court decision which involved detectives using "mooch finder" software to exonerate a person whose neighbor was using their unsecured wifi to download child porn.

The courts will continue to apply the checks and balances of the 4th amendment to the digital age but there are some practicalities which cannot be avoided if you are going to police a 21st century society.

Well, these are the cases that you know of. I know servers, software, networks, and technology really well, and I know for a fact that all this stuff can be covered up or traces removed. If you are an amateur, you will get caught.

The problem with this legislation is that the courts are not involved....this allows prosecutors and LE to just rummage through peoples internet data, violating privilege and protections and privacy without any due course. Oh, after 30 days we will tell you we were looking at all your internet and texts and listening to your phone calls because we confused you with someone else.

The Judicial process isn't perfect either, but at least there is someone there who is supposed to verify LE has a good reason to invade people's privacy. I am all for catching criminals, but not at the expense of my privacy and sacrificing the 4th Amendment in the process.
Cody

[Chuck Haggard]

As far as citizens go, people quite literally get the police that they vote for, in a round about way.


As an example, most serious shooters consider firearms training for "the cops" to be somewhere between inadequate and a bad joke. Someone sets the budget for how much ammo a program gets, and how many days the troops get sent to the range, and "the cops" are not the people setting those budgets, the elected officials are.

How many here have questioned their local city or county elected officials about the quality and quantity of training their local LE agency/department gets?

A stunning amount of stupid shit that cops end up doing on the street is due to them not knowing any better.

In some places this can be seen coming from a mile away. Example, Chicago PD has in the past (and I am told this is still the case) had no, as in zero, in-service training requirement outside of yearly firearms qual after the officer graduates the academy.

[KeeFus]

As far as citizens go, people quite literally get the police that they vote for, in a round about way.


As an example, most serious shooters consider firearms training for "the cops" to be somewhere between inadequate and a bad joke. Someone sets the budget for how much ammo a program gets, and how many days the troops get sent to the range, and "the cops" are not the people setting those budgets, the elected officials are.

How many here have questioned their local city or county elected officials about the quality and quantity of training their local LE agency/department gets?

A stunning amount of stupid shit that cops end up doing on the street is due to them not knowing any better.

In some places this can be seen coming from a mile away. Example, Chicago PD has in the past (and I am told this is still the case) had no, as in zero, in-service training requirement outside of yearly firearms qual after the officer graduates the academy.

QFT! Thats exactly what most departments currently get.

[Coyotesfan97]

A wiretap court order is a whole other animal. They aren't legally listening to you without it. If you haven't been involved in one you wouldn't believe the hoops and expense of writing one and working it. You are not getting a wiretap easily.

There is a lengthy investigation required to justify it, your affidavit is lengthy, you have to justify it to the court, you need monitors and surveillance teams sometimes 24/7 while the wire is up, the prosecutor and the Judge will want updates, the Judge can limit what is listened to, and there's generally a time limit on a T3.

Did I mention the expense to the agency?