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

 

“among small things yesterday” and other poems in response to the last Wednesday Writing Prompt


Here is the collection of responses to the last Wednesday Writing Prompt, he’s a tumble weed, September 13. I’m quite pleased with the efforts of Renee Espiru, Paul Brookes, Sonja Benskin Mesher, Iulia Gherghi, Collin Blundell, and Kakali Das Gosh. Bravo, poets! Enjoy the reading, visit their blogs, and strike-up a friendships with other poets.

The next Wednesday Writing Prompt will post tomorrow.  All are welcome to come out and play, no matter where in the world you live or where you are in your career, emerging or established.


Rainbow Lace Muses

dreams are like the sweet smell
of ambrosia
not like
the bitter of coffee
before her

she sits by the restaurant window

staring at nothing

and seeing everything

perhaps she sees her life
without children
running about
demanding
time

time she doesn’t have and
does not have to give
for life should chord

space and quiet

life should be filled

with writing muses
laced with rainbows

filled with artist
paper

& tools for both
housed in a place

beneath
trees

sprinkled with star dust

a place with fields of
wild flowers so
she can commune

with nature
with her
soul

she is lost in her thoughts
as the restaurant
comes to life
around her

with the laughter of

children

playing

she is reminded that life
hinges on choices
of ambivalence

like her food
turning cold
it is only
new

within the essence
of the moment

© 2017, Renee Espriu  (Just Turtle Flight and Inspiration, Imagination & Creativity with Wings, Haibun, ART & Haiku)


Reminds

herself to use her legs when pulling out weeds so she don’t get pain in her back

aggravated by weight of cat litter bags she puts in her tartan shopping trolley

when she meets her friend Flora in town
to share a tuna salad homemade

by Sully the African refugee in the local cafe.

© 2017, Paul Brookes   (The Wombwell Rainbow, Inspiration, History, Imagination)

Bairns Are Old Codgers

Before I get taken to play at my soft playcentre,
my one year granddaughter toddles with her zimmer frame.

Later we will take her to the memory cafe
where she’ll remember her past lives.

“Hard”, of before dawn and midnight hours:
A welder in the Clyde shipyard, 1942.

“Stinks that,” she says of the steel shavings, and Swarfega.
“Heavy”, of the hammer…

A kitchen servant in a big house.
“Hurts”, of calloused pestle and mortared deferment…

I’m all giddy at tumble down
slides, scramble nets and ballpools.

© 2017, Paul Brookes   (The Wombwell Rainbow, Inspiration, History, Imagination)

Sausage

roll flaky pastry diagnostics.
Watch your stop motion self

on cafe CCTV dance on chessboard
squares black and white faux marbled

floor. Reflection in glass as check your hair over fresh baguettes or bottled citrus.

“Don’t You Want Me, Baby” pumped
over speakers amid oven beeps and bleeps.

Blow on Sausage roll for barefoot baby
strapped in pram for the ride of its life.

© 2017, Paul Brookes   (The Wombwell Rainbow, Inspiration, History, Imagination)


..among the small things yesterday..

was a larger thing, not world news, happily,
not somethinhg to chew over.

amongst the colours, the gifts, the tiny cup,
cracked, collectable, among the people
at the friday club is friendship, a bigger
thing.

quarry cafe.

although many of us like smaller items,
we have grown to know that close friends
are a quite very big, important thing in a
life. small life.

© 2017, Sonia Benskin Mesher  (Sonja Benskin Mesher, RCA and Sonja’s Drawings)


One pub too many

In my high school years
I was addicted to one pub
Every day around six p.m.
I would take the dog out
The dog was the pretext of course
The pub was across the park, nearby the lake
His owner was like a brother to me
His entire family was my family for awhile
Their harmony, their happiness
Were my refuge
I was safe there in that glass pub
Soon enough I became a student
New places to explore
The pub on the top of the National Theatre
The pub of the University of Architecture, this one was more a club
For playing cards, all sort of games
The pub of the Literature University
Placed underground, with black oiled walls
We divided fairly our time between those three
I would start my day with a coffee in the Literature’ pub
Puff my cigarette while studying faces
The smoke would burn my eyes
But in that quasi darkness no one would notice
Lucky strike, no filters or some Romanian stuff, equally strong
I would always forget my lighter
So asking for a light would start a friendship
Next, at noon
Me and my friends would visit the Architecture’s pub
There the students were taller
Handsomer, intriguing
Here we would take our lunch
Being a far more light full place
And in the evenings, when some money grew in our pockets
We would join the roof crowd
On the top of The National Theatre
Where crème de la crème would meet
One or two pints of beer would grant the effort
When broke or during the exams
The nearby pub will greet us at 3 a.m. in the morning
What else but a beer to fixate your knowledge
Or to provide a blissful sleep
I wasn’t picky
Whatever would come first
Very soon the school was over
Life stuck its teeth on us
Devoured by our duties and responsibilities
We can afford only fast food restaurants now
Just before movie starts
The animation movie, 3D
With its special glasses that cover an
Underground slumber

© 2017, Iulia Gherghei (Sky Under Construction)


when we look at another person

forgetting for the moment that they
might be looking at us in the same way –
all those behavioural manifestations –
do we not impute to them
a kind of completion settled composure
compounded of what we take to be
definite things – arrangements of thought
intellectual substructure of identity & feeling?

take anybody you imagine you know
however they might be in themselves
do you not see a certain settledness
of body & mind spirit & dalliance
towards the world? look how they move
with dignity or resolve or shuffle their feet
with an uncertainty they might overcome
suddenly with intention direction & purpose

and how do they see you
mirror of themselves hearing about them
arranging a Bruckner symphony
for a hundred recorder-players?
like the man in the roadside café
I’d never met before
and am never likely to meet again
told me he’d just done

it’s all a matter of gaze
and the content thereof

© 2017, Colin Blundell (Colin Blundell, All and Everything)


#O!The Cafe Owner#

O !the rural cafe owner
Let me enjoy the blinding heavenly light
The accompanied whistling winds
I-a tumbleweed has ushered
your cafe
To pleasure an eternal liquor ,beer or wine of love
Let me escape from the crustfallen life
A chain of of diurnal routine
Let me recline at the front porch of your tavern
Enjoying a dirge quiescence
Let me exempt from the bricks and mortar ,chimney bellflower and clamorous clarion
O ! the rural cafe owner
Let me fly away from the anguish intolerable
May it be just for few moments
But I would sip the red wine of the loveable apple
Forever …….

© 2017, Kakali Das Ghosh


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100,000 Poets for Change Resistance Poetry Wall … post your poem on peace, sustainability or social justice


100,000 Poets for Change (100TPC) founders, Michael Rothenberg and Terri Carrion, have “built” a Resistance Poetry Wall in response to calls from all over the world for a place to post poetry and art in reaction to January’s election here in the U.S.

You do not have to limit your poetry to the situation in the States. You can share work that is relative to your country or your specific concerns. As Michael and Terri state:

The poetry and art posted on the WALL are not limited to the USA elections. There are many issues that concern us all and we welcome your contribution to this page.”

These efforts do have their place and power. So far 190 people have shared work on The Poetry Resistance Wall. I hope to see you there too.

– Jamie Dedes


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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



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