Haystacks, Needles, And The Fourth Amendment … special feature article by James R. Cowles

Editor’s Note: After learning about a search warrant issued to collect information on web visitors to DisruptJ20 and the subsequent arrest of 200 individuals, I asked James to write a feature for us explaining the implications under the Fourth Amendment. With his usual precision, humor and balance, he did just that.


Such is the parlous state of the Trump Administration’s attitude toward constitutional liberties that the knee-jerk reaction is instant alarm to any contact between the Trump Justice Department and, e.g., the First Amendment.  Maintaining one’s equanimity is difficult, rather like discovering after lunch that one’s Caesar salad had been sprinkled with Ebola Zaire. In a certain sense, that is as it should be. One does not have to advocate for the sainthood of Barry Goldwater to agree that “Extremism in the defense of liberty is no vice”. But especially in just such cases, one needs to exercise some rationality and restraint. One such case is the recent request by the Justice Department for a warrant to obtain the web histories of all visitors to an anti-Trump website. Even granted that the Devil is in the details, there are enough troubling circumstances about this request, and even the limited, on-second-thought degree to which it was granted, that lovers of the First Amendment should be concerned.

On the one hand and in the interest of bend-over-backwards fairness, we should admit up front that, yes, there are times when such surveillance is justified, provided that all the usual Fourth Amendment safeguards are in place and respected:  probable cause, explicit specificity written into the warrant of materials / objects to be searched for, and approval and signature of a judge who presumably heard adversarial arguments for and against the issuance of the warrant.  Evidence obtained in violation of any of these restrictions has long been held as inadmissible, as has any evidence indirectly obtained by virtue of the initial improper search. The Nardone case, in fact, seems to have been the origin of the term “fruit of the poison tree”, and this entire sequence of Fourth Amendment case law was eventually summarized under the so-called “exclusionary rule” whereby evidence obtained in a manner violative of the Fourth Amendment may be excluded from presentation at trial. (This is not the whole story; keep reading.) Nevertheless, there have been hundreds of cases in which practices like wiretapping, the interception of mail, and both photographic and audio / video surveillance have been approved, and the results cited, in pursuit of quite legitimate, even life-and-death-vital aspects of law enforcement and national security. Therefore, while the Justice Department’s request for a warrant to obtain web histories of all people visiting a given site is properly a matter of concern for civil libertarians, the mere request for permission to exercise such surveillance is not prima facie violative of the Fourth Amendment. Citizens have a compelling interest in privacy, but the government has a no-less-compelling interest in maintaining national security.

But in the particular case of the web histories of people visiting DisruptJ20, there are some elements of concern.  In particular:

o There are some 1.3 million individual IP addresses encompassed by the request for a warrant. Granted, the Justice Department considerably scaled back the scope of this request. But it is not clear how many IP addresses would be subject to examination in the smaller-scale version. Let’s use a strictly seat-of-the-pants number and suppose that the revised warrant request excluded all but two percent of the original 1.3 million. That would still leave 26 thousand IP addresses to be evaluated for potential threats. Remember that the Fourth Amendment permits issuance of a warrant only on “probable cause”.  I.e., the mere fact that someone visited the DisruptJ20 web site does not constitute probable cause. The visit could be no less accounted for by, e.g., idle curiosity, mis-typing the URL, inadvertent linking to DisruptJ20 from click-bait sites hosted on other web pages, etc., etc., etc.  So there would be 26 thousand individual instances in which some kind of suspicious activity would have to be demonstrated before a warrant could be properly issued justifying further examination of activity on that particular, individual IP address.

o The Justice Department lawyers who originated the warrant request egregiously underestimated the scope of the task. NBC News quotes unnamed government prosecutors as saying that “what the government did not know when it obtained the warrant — what it could not have reasonably known — was the extent of visitor data maintained by DreamHost [the web hosting company used by DisruptJ20] that extends beyond the government’s singular locus in this case.” This strains credibility. Are we to seriously entertain the possibility that attorneys prosecuting a case of serious cyber-crime are surprised by the scope of data contained in the records of a company whose most fundamental raison d’etre is to host web pages? One would be less surprised at a cattleman’s astonishment upon  learning that … wow! … there really is actual cow manure in feedlots. Do the learned attorneys  requesting the original warrant know how to spell “disingenuous”? On the other hand, if the surprise should prove genuine, then said lawyers are clearly incompetent to prosecute – of all things! — cyber-crime.

o It is worth noting that the original anti-Trump Inauguration Day protests resulted in only about 2 hundred indictments, i.e., one-hundredth of 1.5 percent of the projected 1.3 million, and that is assuming that all 200 indictments were traceable to the examination of suspects’ DisruptJ20 histories … searching a mighty big haystack for a mighty small number of needles. Just this raw disparity of scale alone raises interesting questions about precisely what the Trump Justice Department is after. Captain Ahab did not go hunting for Moby Dick in a neighbor’s koi pond.

Finally, just to be complete, it is worth briefly noting that the application of the exclusionary rule is not as cut-and-dried as I perhaps made it sound above. There are certain circumstances whereby the consequences of the exclusionary rule may be avoided, even if a search is improper:

o Incriminating articles evident in plain sight … e.g., a search for a weapon in a house where marijuana is lying in the open on a sofa and clearly visible would be legal, even if marijuana were not mentioned in the warrant (Washington v. Chrisman)

o Incriminating items improperly found and seized under the terms of an improper search, but which were legally found and seized under the terms of a separate and proper warrant:  the “independent source exception” to the exclusionary rule, e.g., Gilbert v. California

o Incriminating materials that were not found under the terms of a proper warrant, but which, judging by preponderating evidence, would inevitably have been found (e.g., a drug stash hidden under a stack of newspapers during an otherwise-exhaustive search of the premises) as in e.g., Hudson v. Michigan.the doctrine of “inevitable discovery”

o The doctrine of “attenuation,” whereby sufficient time has elapsed between an illegal search and its precipitating cause to purge the illegal search of any “poison tree” taint, e.g., United States v. Ceccolini. Also see the more recent case of Utah v. Strieff.

The point of all the above case-law citations is that, in order to circumvent questions of the constitutionality of the DisruptJ20 warrant, such a hypothetical warrant would have to be shown to be superfluous, so as to render constitutional issues moot, by appeal to one of the four classes of exceptions to the exclusionary rule. Given that we are discussing electronic evidence, and given the potential volume of data and records, it is difficult to see how the above exceptions would be relevant.

(If all this seems head-bustingly complicated, please rest assured that [a] this degree of complexity is quite routine in questions of deep constitutionality, and so [b] I have not so much as even touched the uppermost crystal on top of the jurisprudential iceberg, e.g., I have not so much as alluded to the exclusionary rule in relation to primary vs. derivative evidence. Nor have I even mentioned the much weaker “reasonable suspicion” criterion in Terry v. Ohio, which is probably not relevant, anyway, since Terry mostly pertains to the grounds for detaining a suspect. And I am not even a lawyer.)

One concluding note:  considerations like the above illustrate why, as much as I admire him otherwise, to the point of dreaming of him someday becoming Chief Justice of the Supreme Court, I nevertheless vehemently disagree with Prof. Akhil Reed Amar of Yale Law School re the exclusionary rule. Prof. Amar regularly takes the Warren Court to task for what he regards as an overly draconian construction of the exclusionary rule, holding police and courts to unnecessarily stringent requirement regarding the “pedigree” of evidence. Prof. Amar’s alternative is to allow the defendant to contest the constitutionality of evidence by retaining legal counsel, and arguing against allegedly tainted evidence on appeal. Theoretically, yes, that could work. But, even if the complainant won and the conviction were overturned on Fourth Amendment grounds, the resulting legal costs would render such a “victory” Pyrrhic, at best. Someone convicted on the basis of an improper / illegal search, who proceeded to challenge same, would lose even if s/he won. Better to keep the exclusionary rule as it is, and to revise it in specific detail, than to open the Pandora’s box of unintended consequences by undertaking a ground-up reinterpretation of the Fourth Amendment.

This is especially true if the Trump Justice Department is, as it may well be, determined to tear apart the entire immense haystack in order to find and punish a few dissident needles.

© 2017, James R. Cowles

Editorial note: James is a feature writer at Beguine Again, the sister site to The BeZine, and a core team member of the The Bardo Group Beguines. He has master’s in math from Wichita State University, a master’s in physics as a Woodrow Wilson Fellow from Tulane, a master’s in English literature from Tufts by way of Harvard and, as a Council of Europe Fellow, Oxford (Exeter College … same Oxford college as JRR Tolkien), and a master’s in theology (MAPS) from Seattle University.

Image credits

4th Amendment … Nick Youngson … CC by SA 3.0
4th Amendment written … Nick Youngson … CC by SA 3.0
“Privacy” gag … Tom Murphy … Creative Commons Attribution-Share Alike 3.0 Unported
March on Washington … Rowland Scherman, USIA … Public domain
“White tenants” … Arthur S. Siegel, Library of Congress … Public domain
Eggs … Gabriel Lima … CC BY 2.0

 

Strange and Beautiful Flowers: Poetry Translation Centre … and “East Meets West” anthology call for submissions


There are many fine poetry sites but Poetry Translation Centre (PTC) deserves special note. It’s a good place to stop and spend time among poets from Africa, Asia and Latin America. The world-wide poetry community is certainly diverse but we in the West tend to miss a big chunk of it.

At PTC there are poet biographies and photographs along with a sampling of poems in the poet’s first language, literal translations into English, and final translations.

PTC hosts a shop where you are able to purchase the poetry collections of your favorite featured poets. These are books you’re unlikely to see on Amazon, at Barnes & Noble, or in your local independent bookshop. There are also some very excellent feature articles.

“The Poetry Translation Centre was established by the poet Sarah Maguire in 2004, to introduce new audiences to leading poets from around the world, as well as better understand and celebrate the diverse communities who have made their home in the UK. We focus on poetry from Africa, Asia and Latin America, working collaboratively with poets and translators to bring new work to English-speaking audiences in the UK. International poets we have worked with include Coral Bracho, Mohan Rana and Al-Saddiq Al-Raddi.” MORE

A visit to PTC is definitely recommended. You may find to your delight a whole new world opening up to you,  a world of strange and beautiful poesy.


“What if you slept
And what if
In your sleep
You dreamed
And what if
In your dream
You went to heaven
And there plucked a strange and beautiful flower
And what if
When you awoke
You had that flower in you hand
Ah, what then?”

― Samuel Taylor Coleridge, The Complete Poems



ABOUT THE POET BY DAY

CALLING ALL POETS, WRITERS, ARTISTS AND MUSICIANS: We need your most passionate work

We invite you to share your most passionate works expressing kindness and human connection and the ways that together we might heal the degradation and devastation of wars and genocides; the heartbreak of refugees living in limbo; the desolation of hunger and famine and environmental catastrophes; the insanity of extrajudicial murders; and the disappointing growth in the West of racial and religious tensions and efforts by various administrations to chill dissent.

Please take this opportunity to join hands and hearts in peace and love: TEAM WITH US for The BeZine 100TPC online “live” event this September 30th (our 6th year) to address peace, sustainability, and social justice through poetry, music (videos), art and anything artistic that can be posted online and accessed through a url link or by responding in the comments section of the event post. The BeZine 100TPC is one of hundreds of events that will be held around the world on September 30 under the rubric of Global 100TPC founded by poets Michael Rothenberg and Terri Carrion.


WE ACKNOWLEDGE that there are enormous theological differences and historical resentments that carve wedges among and within the traditions and ethnic or national groups, but we believe that ultimately self-preservation, common sense, and human solidarity will empower connections and collaboration and overcome division and disorder.

100TPC is just one effort that illustrates the higher possibilities of the human heart.

Let us ply our art, meditations, and prayer toward that tipping point when compromise – an admittedly imperfect peace – will overcome war and respect for life will topple resentments and greed. That may not happen in our time, but it has to start somewhere and sometime. Together let this be our modest contribution toward an end for which diverse people the world over are working and praying.


HOW THE BeZINE “VIRTUAL” 100TPC WORKS … It’s easy and will be intuitively obvious, though we will provide instruction. A blog post will go up at The BeZine blog on September 30 with some introductory material and directions. As with any other blog post, you can respond by putting your poem or other work in the comments section. There will also be “Mister Linky” … a way to put in a link to relevant work on your site. It’s easy to use but if you don’t like it, you can just put your link in the comments section. That works!

American-Isreali Poet, Michael Dickel

American-Israeli poet,Michael Dickel (Meta/ Phore(e)/ Play), is an extraordinary – and at this point very experienced – Master of Ceremonies. He’ll maintain a rolling commentary in the comments section. I’ll be online to fill in for Michael when he takes a break and also to extend the length of the event.We’re in different time zones, though this year not half-a-day apart since he will be in the States. The idea is convenience and inclusively.

All types of artists and friends can participate no matter where they live in the world even if there is no event going on in their neighborhood and even if like me they are pretty much or completely home bound (which was the inspiration for the virtual event). You can participate in our virtual event even if you are at an off-line event. You can do both. We hope that you will not only share your artistry but also enjoy the artistry of others, which is what makes it like a live event. See you then … 🙂 We also hope that you’ll visit The BeZine to read our September edition, a prequel to the 100TPC event.

On behalf of The Bardo Group Beguines (publishers of The BeZine) and in the spirit of love (respect) and community,
Jamie Dedes
Founding and Managing Editor
The BeZine

Search Warrant for Visitors to a Protest Website, First and Fourth Amendment rights challenged

Scene at the Signing of the United States Constitution by (1940) American artist and illustrator, Howard Chandler Christy (1872-1952)


“The DreamHost warrant in particular is likely to chill the exercise of First Amendment rights—including the right to receive information, to speak anonymously, and to associate with like-minded individuals free from the threat of government unmasking.” American Civil Liberties Union

Constitution of the United States of America


“Reports that the Justice Department served a warrant on an internet company, demanding it turn over records that could be used to identify more than a million visitors to a Trump protest website, raise serious concerns about the current administration targeting critics and attempting to chill dissent,” reports PEN America along with various other legal and rights-watch organizations and news outlets. This is again an issue that goes far beyond which side of the great divide you stand. It’s about the protections of freedom of speech and other civil rights and points to the potential for human rights abuses.

The company, Dreamhost, maintains disruptJ20, which was used to organize protests for January’s presidential inauguration. The Justice Department, which handles local prosecutions in the District of Columbia, issued the warrant to Dreamhost in mid-August, according to Dreamhost, which required the company to produce “all files” in connection with disruptJ20. This would include logs for each visitor to the site.

The logs include detailed information: the time and date of the visit, the internet address of the user and the pages each visitor viewed. Combined with other easily obtainable information, police could then trace the specific computers of the more than 1.3 million visitors for which Dreamhost has logs. As of August, local D.C. police have arrested more than 200 protesters en masse, including a number of journalists, and have charged them with felony rioting. This could result in decades-long jail sentences.

“I am one of the more than a million people who visited this website, and who will be swept up by this obscenely broad search warrant—all because it’s my job to follow these things,” said Gabe Rottman, PEN America’s Washington director. “How many other journalists, academics, lawyers, peaceful protesters, and even Trump supporters visited this website? They will all be under a microscope if the court lets this dragnet stand.”

Dreamhost is currently challenging the warrant under both free speech and privacy grounds. Among other things, the company is arguing that the warrant would sweep in completely innocent, and constitutionally protected, communications without any indication that the communications are in any way relevant to wrongdoing. Those affected would include journalists, writers, academics and students just handling their assigned responsibilities.

Brett Max Kaufman, a staff attorney with the ACLU Center for Democracy, writes that this action is a “clear threat to the Constitution.”

“One of the core principles enshrined in the Fourth Amendment is a prohibition on general searches — meaning, the government cannot simply go fishing for a wide range of information in the hope that some kind of useful evidence will turn up. But that’s exactly what the government appears to be doing with a newly revealed search warrant seeking reams of digital records about an Inauguration Day protest website that could implicate more than 1 million users.” More HERE.

According to the Electronic Frontier Foundation, which is working with Dreamhost to fight this:

“[This is] just one example of the staggering overbreadth of the search warrant, it would require DreamHost to turn over the IP logs of all visitors to the site. Millions of visitors—activists, reporters, or you (if you clicked on the link)—would have records of their visits turned over to the government. The warrant also sought production of all emails associated with the account and unpublished content, like draft blog posts and photos.” More HERE.

RELATED:

Both illustrations are in the public domain. This feature is primarily courtesy of the following organizations:

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

DREAMHOST is a Los Angeles-based web hosting provider and domain name registrar. It is the web hosting and cloud computing business owned by New Dream Network, LLC, founded in 1996 by Dallas Bethune, Josh Jones, Michael Rodriguez and Sage Weil, undergraduate students at Harvey Mudd College in Claremont, California, and registered in 1997 by Michael Rodriguez. DreamHost began hosting customers’ sites in 1997.

The ELECTRONIC FRONTIER FOUNDATION (EFF) is an international non-profit digital rights group based in San Francisco, California. EFF provides funds for legal defense in court, presents amicus curiae briefs, defends individuals and new technologies from what it considers abusive legal threats, works to expose government malfeasance, provides guidance to the government and courts, organizes political action and mass mailings, supports some new technologies which it believes preserve personal freedoms and online civil liberties, maintains a database and web sites of related news and information, monitors and challenges potential legislation that it believes would infringe on personal liberties and fair use, and solicits a list of what it considers abusive patents with intentions to defeat those that it considers without merit.

ACLU CENTER FOR DEMOCRACY, under the direction of Cecillia Wang, works to strengthen American democratic institutions and values, promote human rights, ensure government accountability, and protect the rights of immigrants in our national community. The Center for Democracy includes the National Security Project, the Human Rights Program, the Speech, Privacy and Technology Project, the Voting Rights Project, and the Immigrants’ Rights Project.