4/20. Sen. Al Franken (D-MN) sent a letter to Steve Jobs, CEO of Apple, regarding a feature of Apple's iOS 4 operating system that stores, unencrypted, users' location data.

Sen. Franken (at right) wrote that Apple's software is "secretly compiling its customers' location data in a file stored on iPhones, 3G iPads, and every computer that users used to ``sync´´ their devices."

Sen. Franken also referenced a piece by Alasdair Allan and Pete Warden titled "Got an iPhone or 3G iPad? Apple is recording your moves", published on April 20, 2011.

"The existence of this information -- stored in an unencrypted format -- raises serious privacy concerns", wrote Sen. Franken. "Anyone who gains access to this single file could likely determine the location of a user's home, the businesses he frequents, the doctors he visits, the schools his children attend, and the trips he has taken -- over the past months or even a year."

Moreover, he said, "third parties could gain access to this file". He suggested that "malicious persons may create viruses to access this data", and that "this information could be abused by criminals and bad actors".

Sen. Franken then propounded numerous interrogatories to be answered by Jobs.

First, he asked, "Why does Apple collect and compile this location information? Why did Apple choose to initiate tracking this data in its iOS 4 operating system?"

He also asked, "Why is this data not encrypted?"

And, "Why were Apple customers never affirmatively informed ...?"

Some of the many uses that could be made of this Apple location data are suggested by several ongoing matters.

First, law enforcement agencies have long been surreptitiously placing GPS tracking devices on cars to easily track people's whereabouts over extended periods of time. The Department of Justice (DOJ) is defending this practice, and arguing that it requires no warrant. See, related story in this issue titled "DOJ Seeks Certiorari in Warrantless GPS Location Surveillance Case"

Extraction of location data from iPhones and iPads would enable police to track people's whereabouts, not only in their cars, but also as they move from car to car, to other modes of transportation, and on foot. Moreover, the ACLU asserts that this method of surveillance is already taking place.

There is an investigation by the ACLU and ACLU of Michigan regarding the Michigan State Police's (MSP) use of data extraction devices on cell phones. See, related story in this issue titled "Michigan Police Use CelleBrite Devices to Extract Data from Cell Phones".

Second, there is the matter of the Department of Homeland Security's (DHS) search of cell phones and other mobile devices at borders and airports. See, related story in this issue titled "Update on Abidor v. DHS".

4/15. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) filed a Petition for Writ of Certiorari [121 pages in PDF] with the Supreme Court in USA v. Antoine Jones, a case involving application of the 4th Amendment to the warrantless use of location tracking devices.

The DOJ requests that the Supreme Court grant certiorari and reverse the judgment of the U.S. Court of Appeals (DCCir). The August 6, 2010 opinion [PDF] of the Court of Appeals is also attached to the above hyperlinked petition, and reported at 615 F.3d 544. (That opinion was issued in USA v. Lawrence Maynard, App. Ct. No. 08-3030, a case consolidated with USA v. Jones.)

4th Amendment and Katz. The 4th Amendment provides in full that "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 Supreme Court issued its landmark opinion in Katz v. U.S. in 1967. It is reported at 389 U.S. 347. In that case the FBI conducted a warrantless wiretap of a public telephone booth used by the defendant, and introduced the product of those wiretaps into evidence in a criminal trial.

The Supreme Court, with Justice Potter Stewart writing the opinion, held that warrants based upon probable cause are required for telephone wiretaps, even when the call is placed from a public phone booth. Stewart wrote that "the Fourth Amendment protects people, not places."

Former Justice Harlan used the phrase "constitutionally protected reasonable expectation of privacy" in his concurrence. He elaborated that "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ``reasonable.´´" (Parentheses in original.)

This statement provides the analysis that is applied by the courts to this day. The general analysis applied by the courts is first, whether there was a government search; second, whether there was a subjective expectation of privacy; and third, whether that expectation is one that society is expected to recognize. If the answer to all three is yes, then the search violated the 4th Amendment, unless it was conducted pursuant to a warrant issued upon probable cause, and all evidence obtained by the search is inadmissible in court under the exclusionary rule.

Proceedings Below. Jones and Maynard and were charged with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base. (There were also other charges not pertinent to the present proceeding.) The two defendants were tried jointly in the U.S. District Court (DC), and convicted.

They appealed to the DC Circuit. Jones argued on appeal, among other things, that the District Court erred in admitting evidence acquired by the warrantless use of a Global Positioning System (GPS) device to track his movements continuously for a month. The Court of Appeals reversed Jones' conviction. Part III of the opinion, beginning at page 15, addresses the GPS surveillance issue.

The Court of Appeals first held that the use of the GPS device was a search within the meaning of the 4th Amendment.

The Court of Appeals then rejected the DOJ's arguments that there was no search because Jones' movements were publicly exposed, or constructively exposed.

It wrote, "we hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine."

It further held that Jones held a reasonable expectation of privacy under the test announced by the Supreme Court in Katz. It further held that the search was unreasonable.

Conflict Among the Circuits. There is a conflict among the circuits on this issue. This greatly increases the likelihood that the Supreme Court will grant certiorari. Although, it does not follow from this that the Supreme Court will reverse the judgment of the DC Circuit.

On January 11, 2011, the U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] in U.S. v. Pineda-Moreno, 591 F.3d 1212,  in which it upheld the use of warrantless and extended GPS surveillance.

The Court of Appeals wrote that "Pineda-Moreno cannot show that the agents invaded an area in which he possessed a reasonable expectation of privacy when they walked up his driveway and attached the tracking device to his vehicle. Because the agents did not invade such an area, they conducted no search, and Pineda-Moreno can assert no Fourth Amendment violation."

There is also a pending petition for writ of certiorari, filed by the defendant on November 10, 2010, in that case. That is Sup. Ct. No. 10-7515. See, Supreme Court docket.

See also, the May 21, 2010, opinion [10 pages in PDF] of the U.S. Court of Appeals (8thCir) in U.S. v. Marquez, reported at 605 F.3d 604.

The Court of Appeals wrote that "law enforcement officers, using magnetic strips, placed a Global Positioning Satellite (GPS) tracking device on the bumper of the Ford while it was parked in a Walmart parking lot".

The Court of Appeals held that "A person traveling via automobile on public streets has no reasonable expectation of privacy in his movements from one locale to another", and "When electronic monitoring does not invade upon a legitimate expectation of privacy, no search has occurred."

And see, the 2007 opinion of the U.S. Court of Appeals (7thCir) in U.S. v. Garcia, 474 F.3d 994, upholding another warrantless use of GPS surveillence of a car against a 4th Amendment challenge.

Petition for Writ of Certiorari. The DOJ argues that certiorari should be granted because there is a conflict among the circuits.

It further argues that "a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to an other, even if  ``scientific enhancements´´ allow police to observe this public information more efficiently."

The DOJ wrote that the opinion of the DC Circuit, "if allowed to stand, would stifle the ability of law enforcement agents to follow leads at the beginning stages of an investigation, provide no guidance to law enforcement officers about when a warrant is required before placing a GPS device on a vehicle, and call into question the legality of various investigative techniques used to gather public information. GPS tracking is an important law enforcement tool, and the issue will therefore continue to arise frequently. This Court should intervene to clarify the governing legal principles that apply to an array of investigative techniques, and to establish when GPS tracking may lawfully be undertaken."

The DOJ also advanced that argument the since the DC Circuit's analysis was based upon the prolonged use of GPS devices, it raises the question of whether prolonged use of other surveillance techniques may rise to the level of a search that requires a warrant.

It wrote that "Protracted use of pen registers, repeated trash pulls, aggregation of financial data, and prolonged visual surveillance can all produce an immense amount of information about a person's private life. Each of these practices has been held not to be a Fourth Amendment search. ... But under the court of appeals' theory, these non-search techniques could be transformed into a search when used over some undefined period of time or in combination."

The DOJ concluded that the opinion of the DC Circuit "thus has limitless potential to require courts to draw impossible lines between the moderate degree of review or observation permitted under the court's approach, and the excessive or prolonged degree that becomes a search."

This case is U.S.A. v. Antoine Jones, Supreme Court of the United States, Sup. Ct. No. 10-1259, a petition for writ of certiorari to the U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-3034. See also, Supreme Court docket.

Jones' response is due by May 16, 2011.

4/20. The American Civil Liberties Union (ACLU) wrote in a short piece on April 20, 2011, that "Michigan State Police (MSP) may be using portable devices to secretly extract personal information such as text messages, photos, video, and GPS data from cell phones during routine stops."

On April 13, the ACLU of Michigan published a piece on its efforts to obtain information from the MSP. It wrote that "For nearly three years, the ACLU has repeatedly asked for this information through dozens of Freedom of Information Act requests, but to date it has not been provided."

The ACLU of Michigan added that "According to CelleBrite, the manufacturer of at least some of the devices acquired by MSP, the product can extract a wide variety of data from cellphones including contacts, text messages, deleted text messages, call history, pictures, audio and video recordings, phone details including the phone number and complete memory file dumps on some handsets."

CelleBrite states in its web site that "Cellebrite's UFED is in use at military, law enforcement, and government agencies across the world."

It adds that its product named "UFED Physical Pro" can "extract deleted mobile device data, user passwords, file system dumps, and physical extraction from GPS devices."

CelleBrite's manual for the UFED Physical Pro states that it supports the iPhone operating system.

See also, April 13 letter from the ACLU of Michigan to the MSP.

4/20. On September 7, 2010, Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL), and the National Press Photographers Association (NPPA) filed a complaint [37 pages in PDF] in the U.S. District Court (EDNY) against Janet Napolitano and others alleging violation of 1st and 4th Amendments of the U.S. Constitution in connection with the Department of Homeland Security (DHS) practice of searching, copying and detaining electronic devices at international borders without reasonable suspicion.

The ACLU is counsel for plaintiffs. See, story titled "ACLU Sues DHS Over Suspicionless Searches of Electronic Devices at Borders" in TLJ Daily E-Mail Alert No. 2,129, September 9, 2010.

Abidor v. DHS involves government warantless extraction of data from cell phones and other mobile devices. However, the legal analysis applicable to customs searches is different from the analysis applicable to other government searches of mobile devices.

For example, in 2006 the U.S. Court of Appeals (9thCir) issued its opinion [PDF] in USA v. Romm, 455 F.3d 990, holding that a border or international airport seizure and search of a laptop computer, including search of internet caches, forensic analysis, and recovery of deleted files, is permissible, without consent, a warrant, probable cause, or any reason to believe that contraband is being brought into the U.S.

That case is USA v. Stuart Romm, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-10648, an appeal from the U.S. District Court for the District of Nevada, D.C. No. CR-04-00216-PMP(PAL). See also, story titled "9th Circuit Holds Government Can Conduct Warrantless Random Searches of Laptops of Persons Entering US at Airports" in TLJ Daily E-Mail Alert No. 1,417, July 25, 2006.

Similarly, the 9th Circuit held its 2008 opinion [13 pages in PDF] in USA v. Arnold, 533 F.3d 1003, that a CBP search of an air traveler's laptop without suspicion was permissible, and porn pictures found on that laptop could be introduced as evidence in a subsequent criminal prosecution for porn possession. The Court held that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border".

That case is USA v. Michael Timothy Arnold, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-50581, an appeal from the U.S. District Court for the Central District of California, D.C. No. CR-05-00772-DDP. See also, story titled "Summary of Cases Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.

On January 28, 2011, the DHS moved to dismiss in Abidor v. DHS. The DHS argued that the plaintiffs lack standing because they have not suffered injury.

The DHS also argued, relying upon Arnold and other cases, and that neither the search of Abidor's computer, nor the DHS policy of conducting warrantless suspicionless searches, violate either the 1st or 4th amendments. See, DHS memorandum [35 pages in PDF] in support of motion.

On March 9, 2011, the ACLU filed its opposition [45 pages in PDF] to the motion to dismiss.

On March 30, 2011, the DHS filed its reply brief [22 pages in PDF], arguing that the plaintiffs have shown no reason why the Court should depart from Arnold and other precedent.

This case is Pascal Abidor, et al. v. Janet Napolitano, Alan Bersin and John Morton, U.S. District Court for the Eastern District of New York, D.C. No. 1:10-cv-04059-ERK.

The House will be in recess the week of Monday, April 18 through Friday, April 22, and the week of Monday, April 25 through Friday, April 29. The House will return at 2:00 PM on Monday, May 2.

The Senate will be in recess the week of Monday, April 18 through Friday, April 22, and the week of Monday, April 25 through Friday, April 29. The Senate will return at 2:00 PM on Monday, May 2.

8:00 - 10:00 AM. Social Driver will host an event titled "I Can't Believe It's On Twitter: Getting ROI From Social Media". See, notice. Prices vary. Location: Zenger Room, National Press Club, 13th Floor, 529 14th St. NW.

12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speakers will be Robert McDowell (FCC Commissioner) and Jonathan Leibowitz (FTC Chairman). Prices vary. Lunch will be served. The deadline to register is 12:00 NOON on April 18, 2011. See, registration form. Location: Mayflower Renaissance Hotel, 1127 Connecticut Ave., NW.

12:00 NOON. The Economic Club of Washington, DC will host a lunch. The speaker will be FCC Chairman Julius Genachowski. Location: Renaissance Hotel, Ballroom, 999 9th St., NW.

2:00 - 3:00 PM. The Heritage Foundation (HF) will host a speech by Frank Lavin (Edelman Asia Pacific) titled "Consequential China: U.S.-China Relations in a Time of Transition". See, notice. The HF will webcast this event. Location: HF, 214 Massachusetts Ave., NE.

3:30 - 5:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Inside the FCC: A Roundtable Discussion for Young Lawyers about Meeting with FCC Staff and the Ex Parte Process". For more information, contact Brendan Carr at bcarr at wileyrein dot com or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: FCC Commission Meeting Room, 445 12th St., SW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) FCC Enforcement Committee will host an event titled "FCC Enforcement Bureau Case Studies: The Past is Prologue". See, notice. CLE credits. Location: Wiley Rein, 1776 K St., NW.

9:00 - 10:00 AM. The Internet Security Alliance (ISA), Harris Corporation and Chertoff Group will host a panel discussion titled "Securing Our Nation’s Cyber Supply Chain". The speakers will include Larry Clinton (ISA), Dale Meyerrose (Harris Corp.), and Michael Chertoff. See, notice. Register by email at RSVP at harris dot com. Location: First Amendment Lounge, National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU World Radiocommunication Conference (WRC), to be held on January 23 through February 17, 2012 in Geneva, Switzerland. See, notice in the Federal Register, April 1, 2011, Vol. 76, No. 63, at Page 18292. Location: 1200 Wilson Boulevard, Arlington, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register requesting information to assist it in preparing a "preliminary plan to review its existing significant regulations in response to the President Obama's Executive Order 13563 titled "Improving Regulation and Regulatory Review".The request for comments is at Federal Register, March 22, 2011, Vol. 76, No. 55, at Pages 15891-15892. The Executive Order is at Federal Register, January 21, 2011, Vol. 76, No. 14, at Pages 3821-3823.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [139 pages in PDF] regarding changes to the two universal service tax and subsidy programs titled "Lifeline" and "Link Up". The FCC adopted this NPRM on March 3, 2011, and released the text on March 4, 2011. It is FCC 11-32 in WC Docket Nos. 11-42 and 03-109, and CC Docket No. 96-45. See, notice in the Federal Register, March 23, 2011, Vol. 76, No. 56, at Pages 16481-16519.

Good Friday.

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

Deadline to submit nominations to the Federal Communications Commission (FCC) for membership on its Communications Security, Reliability, and Interoperability Council (CSRIC). See, notice in the Federal Register, March 30, 2011, Vol. 76, No. 61, at Pages 17650-17652.

Easter.

The House will be in recess the week of Monday, April 25 through Friday, April 29.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the joint petition filed by Cellular South Licenses, Inc. and United States Cellular Corporation requesting that the FCC reconsider its decision amending a rule established by the Interim Cap Order to reclaim high-cost universal service support surrendered by a competitive eligible telecommunications carrier (ETC) when it relinquishes ETC status in a particular state. See, DA 11-507 in WC Docket No. 05-337 and CC Docket No. 96-45, and notice in the Federal Register, March 30, 2011, Vol. 76, No. 61, at Pages 17652-17653.

8:30 AM - 5:30 PM. The National Aeronautics and Space Administration's (NASA) NASA Advisory Council's Information Technology Infrastructure Committee will meet. The agenda includes "Computing Environment -- Diverse Needs and Solutions", "Network Environment and Mission Network Support", and "IT Security Risk Management". See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18800-18801. Location: NASA Goddard Space Flight Center, 8800 Greenbelt Road, Building 12, Room C100D, Greenbelt, MD.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Case for a National Manufacturing Strategy for the United States". The speakers will be Robert Atkinson (ITIF), Stephen Ezell (ITIF) and Mark Rice (Maritime Applied Physics Corporation). See, notice and registration page. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

9:00 AM - 4:30 PM. The National Institute of Standards and Technology (NIST) Voluntary Laboratory Accreditation Program (NVLAP) will host a one day workshop regarding the NIST Information Technology Laboratory, the Department of Health and Human Services (DHHS), NVLAP accreditation of laboratories to perform testing of health information technology, and electronic health record technology. The deadline to register to attend is April 20. See, notice in the Federal Register, March 22, 2011, Vol. 76, No. 55, at Pages 15945-15946. Location: Gaithersburg Marriott Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, MD.

9:00 AM - 12:00 NOON. The Missouri School of Journalism will host an event titled "The Future of Public Broadcasting: Innovating to Connect Communities". See, notice. Location: National Press Club, 13th Floor, 529 14th St. NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "Private Lawyers as Counsel to Governments in WTO Disputes". The speakers will be Benjamin Caryl (U.S. International Trade Commission), Aluisio De Lima-Campos (Brazilian Embassy), and Gary Horlick. See, notice. The price to attend ranges from $20 to $35. For more information, call 202-626-3463. Location: McKenna Long & Aldridge, 1900 K St., NW.

9:30 AM. The Federal Communications Commission (FCC) will host a second workshop its intercarrier compensation system and universal service fund. The first was on April 6, 2011. See, FCC notice of second workshop, and NPRM [289 pages in PDF] adopted on February 8, 2011, and released on February 9, 2011. It is FCC 11-13 in WC Docket No. 10-90, GN Docket No. 09-51, WC Docket No. 07-135, WC Docket No. 05-337, CC Docket No. 01-92, CC Docket No. 96-45, and WC Docket No. 03-109. Location: FCC, Commission Meeting Room, 445 12th St., SW.

12:30 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Viacom v. YouTube: Does Third Party Contributory Copyright Infringement Really Exist for Internet Service Providers (ISPs)?". The speakers will be Carole Handler (Lathrop & Gage), William Henslee (Florida A&M University College of Law), and Cliff Sloan (Skadden Arps). Prices vary. CLE credits. See, notice and registration page.

TIME? The National Coordination Office for Networking and Information Technology Research and Development (NCO/NITRD) will host a workshop on cyber security research titled "Trust Anchors are Invulnerable". This is part of its series titled "Assumption Buster Workshops". See, NITRD issue summary, and notice in the Federal Register, February 25, 2011, Vol. 76, No. 38, at Page 10627-10628. Location: __, Savage, MD.

The Federal Communications Commission's (FCC) Auction 91, regarding certain FM Broadcast Construction Permits, is scheduled to commence. See, March 10, 2011, Public Notice, and notice in the Federal Register, January 21, 2011, Vol. 76, No. 14, at Pages 3892-3906. See also, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.

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