Appeals Court Nullifies Miranda, 4th Amendment Privacy Rights

[TalkingDog]

http://www.wired.com/threatlevel/2010/09/digital-miranda-rights/

Bowing to the Obama administration, a federal appeals court Monday gutted its own decision that had dramatically narrowed the government’s search-and-seizure powers in the digital age.

The 9-2 ruling by the 9th U.S. Circuit Court of Appeals nullifies Miranda-style guidelines the court promulgated last year that were designed to protect Fourth Amendment privacy rights during court-authorized computer searches. Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

The original ruling required the government to cull specific data described in the search warrant, rather than copy entire hard drives. When that’s not possible, the feds were advised to use an independent third party under the court’s supervision, whose job it would be to comb through the files for the specific information, and provide it, and nothing else, to the government. The ruling said judges should “deny the warrant altogether” if the government does not consent to such a plan in data-search cases.





And probably the 5th Amendment Right not to incriminate yourself. "nor shall be compelled in any criminal case to be a witness against himself" If you are being investigated and the police find "new" crimes in the process of scouring your hard drive, I'd say that falls under the heading of being a witness against yourself.

[burnsei sensei]

1. The ABA must fight this.

We all must confront and humiliate into silence those who would eviscerate the Bill of Rights.

[seattleblue]

17. The ABA???

That toothless lapdog of an organization would be the very last to fight anything except benefits for elite law firms. These sold out any credibility years ago.

[TexasObserver]

25. The ABA is to law what the Chamber of Commerce is to business.

It's a trade association for powerful interests, and only about good law when it intersects their goals.

[burnsei sensei]

31. They have been advocates against the death

penalty for juveniles, and do their share of studies about what comprises justice in this country.
They do advocate. It's either them or, hopefully, them and the ACLU.
I also think the NAACP should be involved.

[burnsei sensei]

26. American Bar Association nt

[KansasVoter]

2. This has been my biggest disappointment in Obama. He knows how the police abuse powers!!!!!

[NoNothing]

5. Does he?

I wonder.

[KansasVoter]

7. I assume, maybe wrong, being a black man, he has heard the stories.

[gratuitous]

3. The Obama administration, fierce advocates for . . .

Well, what exactly?

[Name removed]

9. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Jackpine Radical]

4. Oh, wow, the Unreccing Crew is here.

Best Jack Nicholson tough guy impression: "You can't handle the truth."

[qazplm]

16. Here's the thing

when someone posts something that is solely a search and seizure issue and says violates and "nullifies" Miranda, which deals solely with custodial interrogation, under a completely different amendment of the Constitution, it's not exactly a very truthful post in the sense of being accurate.

[TalkingDog]

21. Don't kill the messenger. Just Quoting the Article.

"The 9-2 ruling by the 9th U.S. Circuit Court of Appeals nullifies Miranda-style guidelines..."


And yes, honestly, I did sex it up a little bit. When I checked for dupes (as good citizens should), the story had been posted yesterday with the original headline.

2 comments.

I think this deserves a little more than 2 comments. Good or bad. Agree or disagree. It needs to be discussed.

[Deep13]

6. Miranda is about custodial interrogation.

If a suspect is in police custody, the cops are supposed to warn that person of the right to counsel and the right not to talk to the police. It's based on the 5th Amendment right against self incrimination. It has nothing to do with 4th Amend. search and seizure rules.

Computer files like documents and photos are physical evidence, not incriminating statements by the defendant. They are protected by the 4th Amendment. Again, the 5th protects against involuntary or compelled confessions. What a defendant does on his own computer when not in custody is not involuntary.

[cliffordu]

10. Aw, come on. Don't bring the fookin' FACTS into this

confuses the idjits.

[zipplewrath]

14. Yes, in the end this is about "secondary discovery"

When you search a house, you have to say what it is you're looking for. However, if you find evidence of other crimes, it is admissible. The trick of course is that whatever it is you were searching (a closet, a file cabinet, a chest of draws) has to have been a "reasonable" item to be searching for those things listed in the warrant.

The problem they have here is that all files are created equal. Once they have a hard drive, they have everything. To some extent, it is the equivalent (okay, more metaphorically speaking I guess) of getting a search warrant that allows you to search a house EVERYDAY. They have your hard drive, they have your life. It would be interesting to know what the limits are on following links, or using embedded passwords and user names. Considering the amount of "history" on a computer (from deleted files folders to browser histories) they can find out alot if there are no limits upon what they can look at "through" the information on your computer.

In the end, the "proper" place for much of this to be decided should be in congress, with judicial review conducted in specific cases. The way we have traditionally sorted this out is just a long series of appeals in the courts. The ACLU probably just ought to be given budgets and offices over in the DoJ to cover these tasks.

[TalkingDog]

22. Miradanda: See post above. 5th Amendment: Fair cop. n/t

[HiFructosePronSyrup]

8. If the police get a search warrant to search a guy's house...

let's say it's because they suspect him of collecting child porn. And they don't find child porn but instead find a crystal meth cooking operation, should they let him go and not charge him with anything?

[cliffordu]

11. LOL, really.

"....We found a dead guy on the second floor but couldn't arrest the perp cause the warrant didn't specify the second floor...."

[seattleblue]

18. Which is the law.

If the warrant didn't specify the 2nd floor they couldn't make an arrest and would have to have some justification for being on the 2nd floor or the evidence would be tossed.

[HiFructosePronSyrup]

19. A "search warrant" involves some degree of searching.

They obviously can't be so specific that they can know exactly where the evidence is without any search at all.

So they have probable cause and get a search warrant for the house. Or the hard drive.

So whether or not the body is in the second floor, or the basement, it doesn't really matter.

Or if that terrorist plans are on the desktop, or "my documents," that really doesn't matter either.

[TalkingDog]

23. Actually search warrants can be excruciatingly specific.

In one instance that I know of, the police knew the guy was selling pot, but that he wasn't keeping a lot of it in his house at one time. They didn't want to bust him on the little bits inside the house, they wanted to get him for the major amount. So they waited until they knew he had made a pick up and they got a warrant for the car.

But they couldn't search his house. They didn't need to.

In other instances, sheds, basements, garages have not been specifically included and nullified cases.

[gratuitous]

12. They get another search warrant

That's been SOP for police for decades. Constitutional search warrants are supposed to be based "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." They're not fishing licenses. A search team in the situation you describe would dispatch one of its members to get another search warrant which particularly described the place to be searched, and the person or things to be seized.

What a dumb question.

[HiFructosePronSyrup]

13. Another search warrant for a crime they've already discovered?

Grat, that's stupid.

If police discover a crime, actually witness the thing, then they don't need a warrant.

Hell, if a fireman runs into your house to put out a fire, and without a warrant, and discovers your marijuana grow up, you'll be charged for your marijuanan grow op.

[qazplm]

15. here's the problem

it's next to impossible to create a detailed and specific warrant for computer files that can't be simply defeated by changing a file name.

You say I want to look for picture files, then they simply save the picture file in a non-traditional format (something other than jpg for example) and now, if you are limited to looking only for jpg you are stuck never finding it.

You say I am looking for pics from Jan 1 2010, then they simply modify the time stamp on the file or even simply save it as a new file and delete the old file (real delete not simply hitting the delete button).

There are too many ways just a moderately clever person can foil a computer search with the kind of very specific and detailed rules the court was originally requiring.

You more or less have to be able to look in most of the computer if not all.

And to echo what someone said above, this case has zero to do with Miranda, which makes the fact that folks are talking about Miranda in this thread rather embarrassing and frustrating to see as an attorney. It suggests people don't understand the various legal and Constitutional concepts but are instead throwing around buzz words.

[TalkingDog]

24. Miranda: See thread above. Better yet, write the author. n/t

[qazplm]

30. Not sure why you ignored the rest

it was directly on point to the issue at hand.

[davepc]

20. Encrypt your files.

http://en.wikipedia.org/wiki/Full_disk_encryption

http://en.wikipedia.org/wiki/Disk_encryption_software

[BzaDem]

27. This article is very misleading. This case was unusual, because the court's original decision

throwing out the search decided issues that were not properly before the court. They issued "guidance" that had nothing to do with the case, and all parties to the case agreed that this guidance was not necessary to resolve the case. The problem was that the guidance was being interpreted in completely different ways across the circuit, because no one knew what was mandatory. The result was a nightmare of inconsistent rulings, where no one knew what parts of the original decision were operative.

The court simply changed its guidance from being a part of the opinion of the court to being simply guidance in a concurring opinion. This makes it clear that the issues not properly before the court are not operative -- they are simply guidance. It does nothing to prevent it from gradually becoming operative in the future, if the issues are squarely presented before the court in future cases and decided the same way.

[TalkingDog]

28. thank you for clarifying, instead of just bitching. seriously appreciated. n/t

[mmonk]

29. This isn't the first time that Miranda has been weakened.

They have already ruled they don't have to read you your rights.