EPIC - Kansas v. Glover

Kansas v. Glover

Whether the Fourth Amendment allows police to stop a car when the only reason police have for the stop is that the car’s registered owner has a suspended license.

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Supreme Court Won't Limit Vehicle Stops Based on Owner's License Status: The U.S. Supreme Court held today, 8-1, that police can stop a vehicle if a database says that the registered owner has a suspended license. Justice Sotomayor dissented. EPIC filed an amicus brief in the case, Kansas v. Glover, arguing that the Court should not allow the police to stop a vehicle simply because the registered owner's license is expired. EPIC described the growing use of Automated License Plate Readers, and warned the Court that permitting police stops based on the registered owner's status would "dramatically alter police practices" and "unfairly burden disadvantaged communities." EPIC provided empirical data for the Supreme Court which indicate that ALPRs are more widely used in disadvantaged communities and also that car sharing is more prevalent in these communities. Justice Kagan's concurrence noted that car sharing and database inaccuracies, issues that EPIC raised in its brief, could lead to unreasonable searches. EPIC routinely files amicus briefs in cases before federal and state courts concerning emerging privacy issues. In Herring v. United States (2012), EPIC explained to the Supreme Court that government databases are "filled with errors, according to the federal government's own reports." (Apr. 6, 2020)
In Amicus Brief, EPIC Urges Supreme Court to Limit Traffic Stops Based Solely on Owner's License Status: EPIC has submitted an amicus brief in Kansas v. Glover, urging the Supreme Court to limit traffic stops based solely on the status of the registered owner. EPIC warned that permitting police stops based on this factor, when combined with Automated License Plate Readers, would "dramatically alter police practices" and "unfairly burden disadvantaged communities." EPIC provided empirical data for the Court which indicate that ALPRs are more widely used in disadvantaged communities and also that car sharing is more prevalent in these communities. The Supreme Court has previously expanded Fourth Amendment protections for new technologies, such as GPS tracking devices, (US v. Jones), cell phones (Riley v. California), and location data (Carpenter v. United States), in response to evolving policing techniques. EPIC recommended that the Court do the same in this case. EPIC routinely files amicus briefs in cases before federal and state courts concerning emerging privacy issues. (Sep. 6, 2019)

More top news »

Mass. Supreme Judicial Court Rules Two Days of Mass Transit Records Not Enough to Constitute Search Under Fourth Amendment Mosaic Theory » (Aug. 5, 2021)

The Massachusetts Supreme Judicial Court issued an opinion in Commonwealth v. Zachary finding that when Boston Police accessed two days of rider history from a metro pass they did not perform a search under the Fourth Amendment. The court first followed an argument from EPIC's amicus brief urging the court to reject the third-party doctrine for electronic data collected by a third party from an individual for the purpose of obtaining a service. The court decided, "we reject the doctrine as applied to this case, where the data at issue has no connection to the limited purpose for which an individual uses a CharlieCard." The court then applied the mosaic theory of the Fourth Amendment which looks at the whole sweep of a government action and the insights derived when individual data points are aggregated to determine whether a search occurred under the Constitution. The court held that while "an extensive record of an individual's MBTA activity could constitute a search under the mosaic theory, the minimal amount of data obtained in this case does not constitute a violation of art. 14 or the Fourth Amendment." EPIC previously filed an amicus brief in the landmark location privacy case Carpenter v. United States, in which the Supreme Court held that collecting seven days of cell phone location data, considered in aggregate, constituted a search.

EPIC & CDT Amicus Brief Highlights Dangers of Unchecked Government Collection of E-Scooter Location Data » (Aug. 3, 2021)

EPIC and the Center for Democracy & Technology have filed an amicus brief supporting Los Angeles residents' court fight against a city initiative to collect detailed location information on all individual e-scooter trips taken in Los Angeles. The lawsuit is currently on appeal after the trial court dismissed the case because it found no privacy interest in the data. EPIC and CDT's amicus brief describes how Los Angeles spearheaded a new data collection pipeline called the Mobility Data Specification (or MDS) to standardize the location data that ride share providers collect so that the data can easily be disclosed to governments for analysis—and, potentially, surveillance. EPIC and CDT wrote that MDS has the "power to turn a so-called 'smart city' into a surveillance state that is inimical to the Fourth Amendment." The amicus brief describes how MDS was developed to track any shared mobility vehicle, and that Los Angeles already had plans to expand the program to rideshare data from Uber and Lyft. EPIC and CDT also argued that the city's policy goals could be achieved without collecting individual trip data, and described how aggregation, differential privacy, and sampling are widely used to analyze mobility data and protect privacy more than bulk disclosure of individualized trip data. EPIC routinely files amicus briefs in cases applying the Fourth Amendment to novel technologies.

Wisconsin Supreme Court Refuses to Limit Warrantless Forensic Searches of Cell Phones » (Jun. 29, 2021)

The Wisconsin Supreme Court issued an opinion in Wisconsin v. Burch finding that cell phone data downloaded with a forensic device can be used in a subsequent, unrelated investigation and trial regardless of whether the data was initially obtained without a warrant in violation of the Fourth Amendment. A police department used a forensic device to download the entire contents of the defendant's phone while investigating a hit-and-run and retained a full copy indefinitely. The sheriff's office later accessed and searched the copy during an unrelated homicide investigation and used the defendant's cell phone data as evidence during his trial. The Wisconsin Supreme Court refused to decide the constitutional question. Instead, the Court found that the evidence should not be excluded because the police "acted by the book" and there was no conduct to deter with exclusion. The Court said that the sheriff's office "ha[d] every reason to think [the downloaded data] was lawfully obtained" and found there was no police misconduct because it is "common police practice to share records with other agencies." Dissenting from this holding, Judge Bradley, along with two other justices of the court, recognized that law enforcement "generally needs a warrant to search the data [cell phones] hold." She added that the exclusionary rule should apply in this case because "excluding evidence obtained by following such an unlawful and widespread policy provides significant societal value by both specifically deterring continued adherence to an unconstitutional practice and more broadly incentivizing police agencies to adopt policies in line with the Fourth Amendment." EPIC, along with the ACLU and EFF, filed an amicus brief in the case that argued that the unchecked use of forensic devices to download, store, and share cell data violated the Fourth Amendment by "enabl[ing] the State to rummage at will among a person's most personal and private information whenever it wanted, for as long as it wanted" without a warrant. EPIC regularly files amicus briefs challenging unlawful access to cell phone data.

EPIC, ACLU, & EFF Push Court to Limit Warrantless Forensic Searches of Cell Phones » (Mar. 8, 2021)

EPIC, together with the ACLU and EFF, recently filed an amicus brief in Wisconsin v. Burch, urging the Wisconsin Supreme Court to stop police from conducting warrantless forensic searches of cell phones and indefinitely retaining the data based on vague consent forms. The defendant in the case had verbally consented to a limited search of his text messages during a hit-and-run investigation. Police then asked him to sign a vague consent form that did not specify his phone would be forensically analyzed and the data stored indefinitely. Police used a forensic device to download the entire contents of the phone, retained a full copy, and disclosed data that was outside the scope of his limited verbal consent to another department for use in an unrelated investigation. In their brief, EPIC, ACLU, and EFF argued that someone who consents to a limited search does not reasonably expect police may access, copy, and store vast amounts of personal information held on their phone. These searches violate the Fourth Amendment by “enabl[ing] the State to rummage at will among a person’s most personal and private information whenever it wanted, for as long as it wanted” without a warrant. EPIC regularly files amicus briefs challenging unlawful access to cell phone data.

Appeals Court: NSA Call Metadata Program Was Illegal, Likely Unconstitutional » (Sep. 2, 2020)

The Ninth Circuit U.S. Court of Appeals ruled today that the NSA's bulk collection of phone call metadata violated the Foreign Intelligence Surveillance Act and was likely unconstitutional. EPIC and a coalition of groups filed an amicus brief in the case, United States v. Moalin, arguing that call metadata is protected under the Fourth Amendment. "We hold that the telephony metadata collection program exceeded the scope of Congress's [FISA] authorization," the Ninth Circuit wrote. The court rejected the argument that individuals lack a Fourth Amendment expectation of privacy in call metadata simply because the data is held by phone companies. The public is "likely to perceive as private several years' worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program," the court explained. The court cited to the coalition amicus brief and to the work of EPIC advisory board member Laura K. Donohue. However, the court declined in this particular case to exclude the unlawfully collected metadata as evidence. In In re EPIC, EPIC petitioned the Supreme Court to end the NSA's bulk phone record collection program, which occurred with the 2015 passage of the USA Freedom Act.

EPIC to Fifth Circuit: Do Not Allow Warrantless Cell Phone Searches at the Border » (Jun. 9, 2020)

EPIC has filed an amicus brief that urges the Fifth Circuit to decline to extend the border search exception to the Fourth Amendment warrant requirement to searches of cell phones. The case, Anibowei v. Wolf, is a civil suit brought by a U.S. citizen attorney to challenge the warrantless searches of his cell phones at the Dallas-Fort Worth International Airport. EPIC argued that the court should “follow the reasoning of Riley and Carpenter and decline to extend the border search exception to cell phones.” EPIC filed amicus briefs in the U.S. Supreme Court concerning the privacy interests in cell phone data in both Riley v. California and Carpenter v. United States. The Chief Justice cited EPIC’s brief in his majority opinion in Riley.

Supreme Court to Hear Arguments in Case Implicating License Plate Readers » (Oct. 31, 2019)

Next week the Supreme Court will consider Kansas v. Glover, a case concerning car stops and the status of the registered owner's license. EPIC filed an amicus brief in the case which could lead to police stopping any vehicle if the registered owner's license is suspended. EPIC warned that the Court's decision, when combined with automated license plate readers, could "dramatically alter police practices" and "unfairly burden disadvantaged communities." EPIC provided empirical data for the Court that indicate that police use license plate readers more frequently in disadvantaged communities. EPIC also provided data that car sharing is more prevalent in these communities and therefore that many drivers whose license is not suspended will be stopped. EPIC noted that the Supreme Court has previously established legal safeguards in response to evolving policing techniques, such as GPS tracking devices, (US v. Jones), cell phones searches (Riley v. California), and location data collection (Carpenter v. United States). EPIC recommended that the Court recognize the role of automated license plate readers in police stops. EPIC routinely files amicus briefs in federal and state courts concerning emerging privacy issues.

Axon Ethics Board: No License Plate Readers Without Public Input » (Oct. 28, 2019)

A new report from the Axon AI and Policing Technology Ethics Board details problems with automated license plate readers, including the disproportionate impact on communities of color and the long-term tracking of innocent drivers. The Axon report recommends public review prior to use of license plate readers. The report also recommends that license plate reader alerts should not be sufficient grounds to stop a vehicle. EPIC made a similar recommendation in an amicus brief for the U.S. Supreme Court for Kansas v. Glover, arguing against traffic stops based solely on alerts that a registered owner's license is suspended. EPIC previously obtained documents about the extensive use of license plate readers by the Department of Homeland Security and the Federal Bureau of Investigation. EPIC's Senior Counsel Jeramie Scott has warned about the risk of mass surveillance with technologies such as license plate readers.

In Amicus Brief, EPIC Urges Supreme Court to Limit Traffic Stops Based Solely on Owner's License Status » (Sep. 6, 2019)

EPIC has submitted an amicus brief in Kansas v. Glover, urging the Supreme Court to limit traffic stops based solely on the status of the registered owner. EPIC warned that permitting police stops based on this factor, when combined with Automated License Plate Readers, would "dramatically alter police practices" and "unfairly burden disadvantaged communities." EPIC provided empirical data for the Court which indicate that ALPRs are more widely used in disadvantaged communities and also that car sharing is more prevalent in these communities. The Supreme Court has previously expanded Fourth Amendment protections for new technologies, such as GPS tracking devices, (US v. Jones), cell phones (Riley v. California), and location data (Carpenter v. United States), in response to evolving policing techniques. EPIC recommended that the Court do the same in this case. EPIC routinely files amicus briefs in cases before federal and state courts concerning emerging privacy issues.

Utah Becomes First State to Require Warrant for Data Held by Third-parties » (Apr. 1, 2019)

The State of Utah has become the first state in the nation to require law enforcement to obtain a warrant to obtain electronic data held by third parties such as wireless providers, email providers, search engines, or social media companies. House Bill 57, sponsored by State Representative Craig Hall (R) was signed by Governor Gary Herbert last week. Last year, the Supreme Court ruled in Carpenter v. United States that the Fourth Amendment protects location records generated by mobile phones. Recognizing that other types of data were in equal need of protections, Chief Justice John Roberts, writing for the Court, said "legislation is much preferable to the development of an entirely new body of Fourth Amendment case law." Utah took that advice and passed broad protections for essentially all data held by third-parties, with exceptions in emergency circumstances. EPIC filed an amicus brief in the Carpenter case, has recommended updates to the Electronic Communications Privacy Act, and recently proposed a comprehensive strategy for Congress to update federal law after the Carpenter decision.

EPIC Warns Appellate Court of Google’s Flawed, Secretive, Massive File Scanning Program » (Mar. 29, 2019)

EPIC has filed an amicus brief in United States v. Wilson, a case concerning Google’s scanning of billions of personal files for suspected unlawful content, at the behest of the federal government. EPIC argued that “because neither Google nor the Government explained how the image matching technique actually works or presented evidence establishing accuracy and reliability, the Government’s search was unreasonable.” EPIC also explained that “the lower court made a key mistake” by confusing file hashing, which uniquely identifies a file, and image matching, which is prone to false positives. Last year, EPIC filed an amicus brief in a similar case, United States v. Miller. EPIC has promoted algorithmic transparency for many years. EPIC routinely submits amicus briefs on the application of the Fourth Amendment to investigative techniques.

Congressional Research Service: Kavanaugh has a "more restrictive view" of the Fourth Amendment » (Aug. 27, 2018)

The Congressional Research Service, has published a report regarding Supreme Court nominee Judge Kavanaugh's jurisprudence. The nonpartisan CRS provides policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. The CRS report discusses Judge Kavanaugh's potential impact on the Supreme Court if confirmed. According to the report, Judge Kavanaugh has a "more restrictive view" on the constitutional right to be free of unreasonable searches and seizures than other judges on the D.C. Circuit Court of Appeals. Notably in Klayman v. Obama, Judge Kavanaugh stated that the National Security Agency's suspicionless surveillance of the American public was "entirely consistent with the Fourth Amendment." The report also includes an Appendix with tables that summarizes his rate of concurring and dissenting opinions relative to other judges on the D.C. Circuit and how his opinions have fared when reviewed by the Supreme Court.

EPIC Comments on Maryland "Smart Meter" Privacy Bill » (Jan. 16, 2018)

In response to request for comments from the Maryland legislature, EPIC submitted a statement in support of a bill to prohibit law enforcement from obtaining data recorded by a smart meter without a warrant. Smart meters collect personal data about the use of utility services that can reveal when a person is at home and what they are doing. EPIC stated that "the routine collection of this data, without adequate privacy safeguards, would enable ongoing surveillance of Maryland residents without regard to any criminal suspicion." EPIC said that HR 56 is a "model privacy law that enables innovation while safeguarding personal privacy." EPIC has testified in Congress and submitted comments to NIST and the state of California on smart grid privacy. EPIC has also submitted amicus briefs on Fourth Amendment cases before the Supreme Court, including Carpenter v. United States and Byrd v. United States.

Supreme Court to Review Two Cases on Communications Privacy » (Oct. 16, 2017)

The Supreme Court has agreed to review United States v. Microsoft, a landmark case about whether the U.S. government can force email providers to turn over users’ private messages that are stored outside of the United States. The government claims that the Electronic Communications Privacy Act allows investigators to demand emails from all over the world, in violation of national privacy laws. A federal appeals court rejected the government’s arguments last year and ruled that Microsoft was not required to hand over emails that the company stores in Ireland. The Supreme Court has also agreed to review Dahda v. United States, a related case about whether the Fourth Amendment allows the government to use evidence obtained through an unlawful court order. Both cases are expected to be argued in early 2018. EPIC regularly files amicus briefs in privacy cases before the Supreme Court, including recently in Carpenter v. United States, Packingham v. North Carolina, and Utah v. Strieff.

Supreme Court to Hear Two Fourth Amendment Cases » (Sep. 28, 2017)

The Supreme Court has agreed to review two Fourth Amendment car search cases. In Collins v. Virginia, the Court will decide whether police can search a vehicle parked in the driveway of a private home without first obtaining a warrant. In Byrd v. United States, the Court will decide whether a person driving a rental car loses their expectation of privacy in the vehicle solely because they are not the official driver on the rental agreement. The Court is already set to hear Carpenter v. United States this fall, a major Fourth Amendment case about warrantless searches of cell phone location data. EPIC filed a "friend-of-the-court" brief in that case urging the Court to extend Constitutional protection to cell phone data. EPIC regularly files briefs with the Supreme Court arguing for greater Fourth Amendment protections, including in Utah v. Strieff, Los Angeles v. Patel, and Riley v. California.

Court Rules California Police Can't Avoid Public Scrutiny of License Plate Reader Program » (Aug. 31, 2017)

The California Supreme Court ruled that the mass, indiscriminate collection of license plate data by California police cannot be shielded from public scrutiny. In response to an open records request by EFF and the ACLU of Southern California, Los Angeles area law enforcement attempted to prevent disclosure by claiming all license plate data were "investigative records." The court ruled that the license plate data of millions of law-abiding citizens was not an "investigative record." The Court stated, "It is hard to imagine that the Legislature intended for the records of investigations exemption to reach the large volume of data that plate scanners and other similar technologies now enable agencies to collect indiscriminately." EPIC filed an amicus brief in the public records case stating, "Public scrutiny is essential to counter the unique threats posed by these programs of broad-scale surveillance." Documents obtained by EPIC about the FBI's use of license plate readers showed the agency failed to address the system's privacy implications.

Senate to Consider Nomination of Senator Sessions for Attorney General » (Jan. 9, 2017)

Tomorrow the Senate Judiciary Committee will begin hearings on the nomination of Senator Jeff Sessions for Attorney General. EPIC submitted a statement to the Committee, which stated “Senator Sessions’ record regarding the privacy rights of Americans raises serious questions about his selection as Attorney General.” EPIC pointed to Sessions’ support for warrantless surveillance of the American people and opposition to government oversight. Senator Sessions also opposed Apple in its dispute with the FBI and failed to support efforts to modernize the Electronic Communications Privacy Act. The Lawyers for Good Government also raised concerns about Senator Session’s support for the Privacy Act, the Freedom of Information Act, as well as his independence to “prosecute all criminal acts including those that may implicate the President of the United States.”

Supreme Court Weakens Fourth Amendment Protections During Police Stops » (Jun. 20, 2016)

In Utah v. Strieff, the U.S. Supreme Court held today that an outstanding arrest warrant can attenuate “the connection between an unlawful stop and the evidence seized incident to arrest.” The holding reverses the Utah Supreme Court, which had suppressed evidence obtained by an officer who stopped Strieff illegally and ran his ID to look for outstanding warrants. EPIC and 22 technical experts filed an amicus brief, warning the Court that reversing the Utah court would allow vast amounts of personal data stored in government databases—much of it inaccurate—to provide post hoc justification for unlawful seizures.

Federal Court Leaves Digital Search Law Unresolved » (May. 27, 2016)

A federal appeals court ruled today that the government did not violate the Fourth Amendment by keeping a copy of files for more than two years after an investigation because it acted in "good faith." EPIC argued that the government must adopt data minimization practices and that the use of evidence was unlawful. In a dissenting opinion, Judge Chin wrote that the search violated the Fourth Amendment.

EPIC Urges California Supreme Court to Protect Open Records Law » (May. 6, 2016)

EPIC has urged the California Supreme Court to reverse a lower court decision that blocked public release of records about "automated license plate readers" operated by the state police. The lower court held that information about the public surveillance system was an “investigative record” under California law. EPIC’s amicus brief stated, "Public scrutiny is essential to counter the unique threats posed by these programs of broad-scale surveillance." EPIC had obtained documents about the FBI’s license plate reader program under the FOI law. Those records revealed that the FBI failed to address the system's privacy implications.

Supreme Court Approves Remote Computer Hacking by Police » (Apr. 28, 2016)

The U.S. Supreme Court has voted to approve changes to Rule 41 of the Federal Rules of Criminal Procedure, which will allow judges to issue "remote access" warrants. These warrants authorize mass computer searches, even when the targets are outside the jurisdiction of the court. EPIC criticized the proposal in a statement last year, arguing that the procedure enables searches outside traditional Fourth Amendment requirements and would not provide adequate notice to those subject to search. Congress can amend or reject the proposal. Senator Ron Wyden said today he would introduce legislation to reverse the proposal.

Supreme Court to Consider Fourth Amendment ID-Check Case » (Feb. 22, 2016)

The Supreme Court will hear arguments today in Utah v. Strieff. At issue is the use of evidence obtained from government databases following an illegal police stop. In a brief signed by twenty-one technical experts and legal scholars, EPIC warned about the vast amount of personal data, much of it inaccurate, stored in government databases and pointed to the failure of the Justice Department to enforce Privacy Act safeguards. EPIC argued that "a diminished Fourth Amendment standard coupled with a weakened Privacy Act is truly a recipe for a loss of liberty in America." EPIC had filed amicus briefs in several related Supreme Court cases, including Hiibel v. Sixth Judicial District, Tolentino v. New York, and Herring v. U.S..

EPIC Urges Supreme Court to Uphold Fourth Amendment Safeguards for Police Stops » (Jan. 29, 2016)

EPIC has filed a "friend-of-the-court" brief in Utah v. Strieff, a U.S. Supreme Court case about whether the Fourth Amendment allows evidence to be admitted after an illegal stop. Mr. Strieff was unlawfully detained by an officer, who checked his ID and then arrested him on an unrelated outstanding warrant. In a brief, signed by twenty-one technical experts and legal scholars, EPIC detailed a number of sweeping government databases that contain inaccurate and detailed records about Americans' noncriminal activity. EPIC argued that "a diminished Fourth Amendment standard coupled with a weakened Privacy Act is truly a recipe for a loss of liberty in America." EPIC previously argued against compelled identification during police stops in Hiibel v. Sixth Judicial District and Tolentino v. New York.

In Appellate Brief, EPIC Argues for Limitations on Government Digital Searches » (Jul. 30, 2015)

In an amicus brief to the U.S. Court of Appeals for the Second Circuit, EPIC argued that there are Constitutional limits on government searches of electronic storage devices. EPIC urged affirmance of United States v. Ganias, which held that the Government violated the Fourth Amendment by retaining files seized years earlier. After the government appealed, the court agreed to rehear the case. EPIC argued that data minimization practices should be followed for electronic searches, particularly after the Supreme Court's decision in Riley v. California. EPIC endorsed the approach set out in United States v. Comprehensive Drug Testing, which allows a government agency to undertake appropriate searches without unnecessarily violating privacy interests. In Quon v. City of Ontario, CA (2012), EPIC recommended that the Supreme Court adopt a similar approach.

California Supreme Court to Review License Plate Records Case » (Jul. 30, 2015)

The California Supreme Court has granted review of a lower court decision that prevented public release of information about "automated license plate readers." The lower court held that the information about the system to gather license plate data on all motorists was an "investigative record." EPIC urged the California Supreme Court to review the matter, stating, "as the government's ability to collect information about individuals has expanded, open record laws have become an important tool for government oversight." Documents obtained by EPIC about the FBI's use of license plate readers showed the agency failed to address the system's privacy implications.

EPIC Urges California Supreme Court to Protect Open Records Law » (Jun. 25, 2015)

EPIC has asked the Supreme Court of California to review a lower court decision that prevented public release of information about "automated license plate readers." The lower court held that information about the system to gather license plate date on all motorists was an "investigative record." In the amicus letter EPIC stated, "as the government's ability to collect information about individuals has expanded, open record laws have become an important tool for government oversight." Documents obtained by EPIC about the FBI's use of license plate readers showed the agency failed to address the system's privacy implications.

Supreme Court Limits Traffic Stop Searches » (Apr. 21, 2015)

The Supreme Court issued its opinion today in Rodriguez v. United States, a Fourth Amendment case involving the use of a drug-detection dog during a traffic stop. The Court found that it was unlawful for a police officer to detain a driver for the sole purpose of conducting a "sniff" test after the traffic stop was completed. The Supreme Court rejected the Government's argument that extending the stop to wait for a dog to search for drugs was "only a de minimis" intrusion of Fourth Amendment rights. EPIC previously filed an amicus brief in Florida v. Harris, a similar case before the Supreme Court concerning the use of canines for drug detection, arguing that the Fourth Amendment requires routine testing of investigatory techniques to assess reliability and establish reasonableness.

Advisory Committee Approves Rules to Expand Police Hacking Authority » (Mar. 18, 2015)

According to a news report, a committee of the Federal Judicial Conference voted on Monday to approve changes to Rule 41 of the Federal Rules of Criminal Procedure. Under the revised rule, judges could issue "remote access" warrants authorizing law enforcement to search computers remotely, even when the target is outside the jurisdiction of the court. EPIC criticized the proposal in a statement presented by EPIC Senior Counsel Alan Butler last fall, arguing that the rules would not provide adequate notice as required under the Fourth Amendment. EPIC previously filed an amicus brief on a similar issue, the delivery of warrants via facimile. The decision of the advisory committee is only one of several steps before the change is adopted by the judiciary.

Wikimedia Sues NSA Over Mass Internet Surveillance » (Mar. 10, 2015)

Wikimedia filed a federal lawsuit against the NSA over the mass surveillance of Internet communications. Wikimedia asked the court to halt the government's upstream collection—the practice of directly tapping into the Internet backbone that carries communications across the U.S. Wikimedia argues that upstream collection exceeds statutory authority and violates the First and Fourth Amendments, as well as Article III of the Constitution. Explaining the case, Wikipedia founder Jimmy Wales wrote, "Privacy is an essential right. It makes freedom of expression possible, and sustains freedom of inquiry and association." In 2013, EPIC petitioned the Supreme Court to stop the NSA's bulk telephone metadata program.

Supreme Court to Hear Case About Enhanced Search Techniques » (Jan. 6, 2012)

The US Supreme Court has decided to review Florida v. Jardines, a case that addresses whether a dog sniff at the front door of a home is a search that requires probable cause. This case follows Illinois v. Caballes, a 2005 case in which the Court held that a dog sniff around a car during a routine traffic stop was not a search. The Florida Supreme Court ruled that Caballes was inapplicable in the case, and that a dog sniff in front of a home is a Fourth Amendment search. This case also implicates the government's use of "enhanced" investigative techniques that are designed to detect contraband. Because these techniques are imperfect and also allow the government to search for material that is not illegal, EPIC has argued that a Fourth Amendment probable cause standard should apply. For more information, see EPIC: EPIC v. DHS (Airport Body Scanners).

Federal Appeals Court Holds Individuals Have a Right to Record Public Officials » (Sep. 1, 2011)

In a case concerning the arrest of a person who used a cell phone camera to film a police officer, the First Circuit Court of Appeals has held in Glik v. City of Boston that the First Amendment protects "the filming of government officials engaged in their duties in a public place." The Court found that members of the public enjoy the same rights as credentialed members of the press, stating that "the public's right of access to information is coextensive with the press." The Court further held that, in arresting Glik, the City of Boston violated the Fourth Amendment probable cause requirement as there was no reason to believe that Gilk had violated any state law. EPIC agreed that the Massachusetts state wiretap law was not intended to limit the ability of the public to record police activity, but did not file an amicus brief in the case. For more information, see EPIC: EPIC Amicus Curiae Briefs.

Supreme Court: Strip-Search of Teenager Violated Constitutional Rights » (Jun. 25, 2009)

The Supreme Court delivered a 8-1 opinion ruling that a strip-search of a thirteen-year-old girl by school officials looking for an ibuprofen tablet violated the Fourth Amendment. Justice Souter writing for the Court held that the search was unreasonable and that school searches are permissible when they are "not excessively intrusive in light of the age and sex of the student and the nature of the infraction." But a majority of the Justices also said that the school officials were not liable for damages because it had not been "clearly established" that the search was unlawful. Justices Stevens and Ginsburg disagreed and said that a previous Supreme Court case made clear that the search was "excessively intrusive." Justice Thomas wrote in dissent that the search was permissible. See also EPIC's page on Student Privacy.

Summary

A Kansas police officer on traffic patrol stopped Defendant’s car for the sole reason that the car's registered owner had a suspended license. Defendant turned out to be the registered owner, and was arrested. The Kansas Supreme Court held that, without further suspicion that the current driver was, in fact, the registered owner of the car, a stop solely premised on information that the registered owner had a suspended license violated the Fourth Amendment. Kansas petitioned the U.S. Supreme Court for review, which was granted.

Law enforcement agencies throughout the country increasingly use Automatic License Plate Readers ("ALPRs") to assess which vehicles to pull over during routine traffic patrol. ALPRs can tell police in real-time whether the registered owner of the car has a suspended license, as well as a plethora of other public and private information. But the registered owner of a vehicle is not always the driver of the vehicle. This is especially so in poor and minority communities, which are also more likely to be monitored by police ALPRs. Kansas's proposed rule, combined with police use of ALPRs, would allow police to efficiently determine every vehicle whose registered owner has a suspended license, and then pull over licensed drivers who have committed no traffic violations.

Background

Factual Background

A Kansas police officer on routine patrol, upon running a car's plates through the Kansas Department of Revenue file service, learned that the registered owner of the car had a suspended driver’s license. The deputy did not observe any traffic violations or suspicious behavior; he initiated the stop solely on his assumption that the driver was the registered owner. The deputy also did not attempt to corroborate his assumption that the driver was the registered owner. The driver turned out to be the registered owner and was arrested.

Legal Background

Investigatory stops, in which police stop an individual to determine whether the individual has or is planning to commit a crime, are permissible under the Fourth Amendment when police have a "reasonable suspicion" that the individual has committed or is planning to commit a crime. Reasonable suspicion must be based on “specific, objective facts which, taken together with rational inferences from those facts, reasonably warrant" the intrusion on the individual's right to privacy. The Supreme Court has previously held that random stops to find unlicensed drivers violate the Fourth Amendment.

Recently, the Supreme Court has carefully considered the implications of new technology on Fourth Amendment rules. For instance, in Carpenter v. United States, the Court declined to extend an exception to the Fourth Amendment to cell site location data because of the qualitative and quantitative differences between that evidence and the evidence the exception was originally grounded on. Similarly, in Riley v. California, the Court found that an exception to the warrant requirement did not apply to cell phones.

Procedural History

Kansas District Court

The only question at issue before the district court was whether knowledge that a car's registered owner has a suspended license constitutes reasonable suspicion. The district court found in favor of the Defendant and suppressed the evidence. The judge cited her personal experience in owning three cars, two of which are primarily driven by family members, to support her finding the inference that the driver was the registered owner of the vehicle was not a reasonable inference from the known facts.

Kansas Court of Appeals

The Kansas Court of Appeals reversed the trial court's decision. The court found that, when an officer knows that the vehicle's registered owner has a suspended license, and the officer is unaware of any evidence that the driver is not the registered owner, the officer's inference that the owner is the driver is reasonable.

Kansas Supreme Court

The Kansas Supreme Court reversed the Court of Appeals. The court identified two assumptions which, when stacked, comprised the “owner-is-the-driver presumption." First, the officer assumed that the registered owner was the primary driver of the vehicle. Second, the officer assumed that individuals with suspended licenses would continue to drive. The assumptions, taken together, were impermissible because they attribute “a broad and general criminal inclination on the part of suspended drivers.” The presumption also switched the burden from the police, who ordinarily have to show reasonable suspicion, to the driver, who has to now give some indicia that they are not the registered owner. Finally, the court found that the presence of Defendant's car on the road "was not readily indicative of a crime" because the Defendant could have legally allowed a licensed driver to operate the vehicle.

EPIC's Interest

EPIC has a long-standing interest in Fourth Amendment doctrine, particularly where that doctrine interacts with new technology. EPIC routinely files amicus briefs in the U.S. Supreme Court to argue that the Fourth Amendment should keep pace with new technology, including in Byrd v. United States, Carpenter v. United States, Utah v. Strieff, City of Los Angeles v. Patel, and Riley v. California.

In this case, the growing use of ALPRs, which give police unprecedented access to information about vehicles on the road, will likely dramatically expand traffic stops. Because ALPRs are more heavily used in poor communities and in communities of people of color, these stops will disproportionately impact these communities.