I’m from the US and we have a system in place for search warrants. It’s not a great system if I’m being honest, but I believe something of the sort will likely always be necessary. Do you have an alternative suggestion? I’m legitimately interested in different options.
At the very least have controls in place ensuring disposal of data when court cases are fully processed to the full extent of appeals possibilities.
Not allowing broad requests such as « everyone that connected to a given antenna for a month » or even « all connections toward NET or ASN whatever ».
Additionally have the data fully isolated, removing all possibilities to cross use data initially granted for a purpose.
I could go on for a while…
It’s all a balance though, sometimes reuse leads to solving unrelated cases but it’s bound to the imperfections of local authorities everywhere one’s data can be requested.
Agreed on all counts, and that’s mostly how warrants should work, but that does not address the persons point. They seem to suggest full privacy should exist until found guilty of a crime.
That’s definitively not how they work in Europe and even though I’m not expert in other regions I assume that it’s absolutely not the case in USA either.
Technologically there’s no solutions fully preserving everyone’s privacy hence the importance of the local culture.
But if the current practices improve with the likes of the controls I mentioned I would say that it would be good enough.
I have added the text and a generic online summary below, but generally the issue is that judges are becoming more and more lenient and are unwilling to put their foot down when there are requests that are actual overreach. This is for a variety of reasons, and the law might need to be more clear/strict, but according to the letter and interpretation of the law they need to be specific about what they are looking for and it should minimize intrusion in general. Judges have just stopped caring in many cases, and of course the people carrying them out are trigger happy jackboots.
Edit to add: we have a pretty open legal and recordkeeping system here in the US, so the removal from public record is pretty against that. I don’t know enough about the particulars to state whether I think that would be a wholly good or bad thing. I think a transparent judicial process is important, and things submitted to the court generally have a high degree of specificity and do involve redactions when relevant. I don’t know the benefits necessarily, but if proposed I would not necessarily be against sealing cases where the party was not found guilty.
From Cornell law school:
Amdt4.5.4 Particularity Requirement
Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” 1 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.2 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.3
Footnotes 1
Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to a warrant may seize evidence of crime in “plain view” even if that evidence is not described in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464–71 (1971). back
2
In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: “This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931); see United States v. Di Re, 332 U.S. 581, 586–87 (1948). The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367–368 (1964); Agnello v. United States, 269 U.S. 20, 30–31 (1925).” See also Andresen v. Maryland, 427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Brennan, J., dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Potter Stewart, William Brennan, and Byron White would have based the decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents. back
3
Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not describe the items to be seized was “plainly invalid” ; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment “specifies only two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.” back
Here’s so generic information about the above:
Requirements for a Valid Search Warrant
The police who submit an affidavit supporting a warrant must attach a sworn, detailed statement. The officer must then appear before a neutral judge or magistrate. The judge will check to see if the officer has probable cause to execute the search.
In Carroll v. United States, the U.S. Supreme Court held that probable cause exists when a police officer has facts and circumstances that provide a reasonably trustworthy basis to believe a suspect has committed or is about to commit a crime.
If the police request a search warrant to search a location, the police must provide probable cause that evidence of a crime exists at that location. The officer must also state, with specificity, the items they are looking for.
Reasonableness Requirement
Even if the police have a warrant, their search must still be reasonable. Although the facts of the case dealt with a warrantless seizure, the court in Brinegar v. United States reiterated that the presence of a warrant does not give the police the power to conduct an unreasonable search.
The police officer’s search must be reasonable, or the prosecutor won’t be able to use the evidence they find in court. For example, if the police are looking for a large suitcase that contains drugs, it wouldn’t be reasonable for them to look in your bedroom drawers. A large suitcase or duffel bag could not fit in a nightstand drawer.
And what I shared was based on my personal involvement on the topic. As I said somewhere in the thread my expertise is limited to one country in Europe so the legal framework is vastly different but the more human and technological considerations are likely very transferable.
And indeed there are criteria for warrants but that would be subject to interpretation at all steps plus not everything goes via warrants. Judge being lenient isn’t also accounting for their own metrics and perspectives.
And additionally a whole lot of my personal issues would be related to how data, even when acquired both legitimately and with some regard for ethics, is handled. And that needs to be addressed by police forces and their providers.
I don’t think the concept is inherently flawed, but the execution is obviously terribly flawed. If several people credibly report seeing someone burry a body in their yard, the description of which corresponds to a missing person, I understand how getting a warrant to at least visually inspect their property would be necessary to fully investigate this claim. I don’t think this requires the kind of force we often see, but I don’t see people offering alternatives to warrants in general. I understand that privacy is a fundamental right, but presumably that’s where a judge would come in to decide if there was probable cause to partially suspend that right.
I am open and interested in hearing alternatives, but I do not see them posed. I think what underlies the system would function fine with a less militarized group enforcing it.
I’m from the US and we have a system in place for search warrants. It’s not a great system if I’m being honest, but I believe something of the sort will likely always be necessary. Do you have an alternative suggestion? I’m legitimately interested in different options.
At the very least have controls in place ensuring disposal of data when court cases are fully processed to the full extent of appeals possibilities. Not allowing broad requests such as « everyone that connected to a given antenna for a month » or even « all connections toward NET or ASN whatever ». Additionally have the data fully isolated, removing all possibilities to cross use data initially granted for a purpose. I could go on for a while… It’s all a balance though, sometimes reuse leads to solving unrelated cases but it’s bound to the imperfections of local authorities everywhere one’s data can be requested.
Agreed on all counts, and that’s mostly how warrants should work, but that does not address the persons point. They seem to suggest full privacy should exist until found guilty of a crime.
That’s definitively not how they work in Europe and even though I’m not expert in other regions I assume that it’s absolutely not the case in USA either. Technologically there’s no solutions fully preserving everyone’s privacy hence the importance of the local culture. But if the current practices improve with the likes of the controls I mentioned I would say that it would be good enough.
I have added the text and a generic online summary below, but generally the issue is that judges are becoming more and more lenient and are unwilling to put their foot down when there are requests that are actual overreach. This is for a variety of reasons, and the law might need to be more clear/strict, but according to the letter and interpretation of the law they need to be specific about what they are looking for and it should minimize intrusion in general. Judges have just stopped caring in many cases, and of course the people carrying them out are trigger happy jackboots.
Edit to add: we have a pretty open legal and recordkeeping system here in the US, so the removal from public record is pretty against that. I don’t know enough about the particulars to state whether I think that would be a wholly good or bad thing. I think a transparent judicial process is important, and things submitted to the court generally have a high degree of specificity and do involve redactions when relevant. I don’t know the benefits necessarily, but if proposed I would not necessarily be against sealing cases where the party was not found guilty.
From Cornell law school: Amdt4.5.4 Particularity Requirement Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” 1 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.2 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.3
Footnotes 1 Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to a warrant may seize evidence of crime in “plain view” even if that evidence is not described in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464–71 (1971). back 2 In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: “This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931); see United States v. Di Re, 332 U.S. 581, 586–87 (1948). The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367–368 (1964); Agnello v. United States, 269 U.S. 20, 30–31 (1925).” See also Andresen v. Maryland, 427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Brennan, J., dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Potter Stewart, William Brennan, and Byron White would have based the decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents. back 3 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not describe the items to be seized was “plainly invalid” ; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment “specifies only two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.” back
Here’s so generic information about the above: Requirements for a Valid Search Warrant
The police who submit an affidavit supporting a warrant must attach a sworn, detailed statement. The officer must then appear before a neutral judge or magistrate. The judge will check to see if the officer has probable cause to execute the search.
In Carroll v. United States, the U.S. Supreme Court held that probable cause exists when a police officer has facts and circumstances that provide a reasonably trustworthy basis to believe a suspect has committed or is about to commit a crime.
If the police request a search warrant to search a location, the police must provide probable cause that evidence of a crime exists at that location. The officer must also state, with specificity, the items they are looking for.
Reasonableness Requirement
Even if the police have a warrant, their search must still be reasonable. Although the facts of the case dealt with a warrantless seizure, the court in Brinegar v. United States reiterated that the presence of a warrant does not give the police the power to conduct an unreasonable search.
The police officer’s search must be reasonable, or the prosecutor won’t be able to use the evidence they find in court. For example, if the police are looking for a large suitcase that contains drugs, it wouldn’t be reasonable for them to look in your bedroom drawers. A large suitcase or duffel bag could not fit in a nightstand drawer.
And what I shared was based on my personal involvement on the topic. As I said somewhere in the thread my expertise is limited to one country in Europe so the legal framework is vastly different but the more human and technological considerations are likely very transferable. And indeed there are criteria for warrants but that would be subject to interpretation at all steps plus not everything goes via warrants. Judge being lenient isn’t also accounting for their own metrics and perspectives. And additionally a whole lot of my personal issues would be related to how data, even when acquired both legitimately and with some regard for ethics, is handled. And that needs to be addressed by police forces and their providers.
It’s an atrocious system, innocent people get killed every year over it.
I don’t think the concept is inherently flawed, but the execution is obviously terribly flawed. If several people credibly report seeing someone burry a body in their yard, the description of which corresponds to a missing person, I understand how getting a warrant to at least visually inspect their property would be necessary to fully investigate this claim. I don’t think this requires the kind of force we often see, but I don’t see people offering alternatives to warrants in general. I understand that privacy is a fundamental right, but presumably that’s where a judge would come in to decide if there was probable cause to partially suspend that right.
I am open and interested in hearing alternatives, but I do not see them posed. I think what underlies the system would function fine with a less militarized group enforcing it.