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now what we've been talking about up.until now is what to do with criminals.once we identify them should we impose.the death penalty should we incarcerate.them sure it's prevent a detention the.right way to go what we're going to talk.about today and next week is how we.figure out who is criminal in other.words we talking about police.investigation investigation by the.government in an effort to figure out.who has committed a crime now we've only.talked about that a little bit remember.the first week we talked about.eyewitness identification that's one way.in which you figure out whether it.suspects the criminal we also talked a.little bit about interrogation today and.next we're going to talk much more about.police investigation today we're going.to talk about what lawyers call searches.and seizures searches for evidence and.seizures of evidence and particularly.surveillance and the next week we're.going to talk about interrogation so.searches and seizures and interrogation.of the two most prominent police.investigative techniques they are the.primary way in which police find out.whether some of the criminal it's the.primary way police get evidence of crime.so it's important to talk about both of.those types of police techniques and.particularly we're going to concentrate.on what the Constitution says about.searches and seizures and interrogation.there's lots to be said about when the.police can search and seize when the.police can interrogate I teach whole.courses on this we're going to focus on.what the Constitution says about.searches and seizures and interrogation.so starting with searches and seizures.and in particular surveillance I think.that's the hottest topic right now.within the search and seizure category.it's important to recognize that we are.slowly but surely becoming a mass.surveillance society okay why for wine.think technology is improved immensely.there's something called a Cold War.dividend what happened is during the.Cold War the United States developed all.sorts of technology for spying spying on.the Russians spying on our enemies well.what's happened since the Cold War more.or less ended is a lot of that.technology has percolated down to law.enforcement agencies and it are.relatively cheap cost.the government did all the research and.now it's relatively inexpensive so.police forces are starting to use some.of the technology that used to be.reserved for spying on Russians so.that's one thing that's happened the.other thing that's happened obviously is.911 okay 911 scared everybody it made.the government really emphasize.surveillance as a way of figuring out.who might be a terrorist and so we've.seen a vast increase in the use of.surveillance especially using technology.for surveillance purposes since 911 so.I'm going to talk about all of that.today and then talk about the way the.Constitution might regulate this the.tension is this the course surveillance.can be extremely useful in detecting and.deterring bad people including.terrorists right that's obvious whether.it's camera surveillance or tracking or.satellite surveillance there are lots of.ways in which surveillance can be very.helpful in terms of law enforcement and.finding the bad guys but at the same.time as we'll talk about surveillance.can be very intrusive it can invade.privacy it can conceivably chill freedom.of association or freedom of speech.which our First Amendment values and so.it's really important to investigate how.that tension should play out of course.the Constitution is usually the way we.do that in this country we look at the.Constitution as a way of figuring what.the Constitution says is a way of.figuring out how we should balance the.government's need to keep us safe with.our need to be secure from government.intrusion and prying so let's start with.the story okay a mud Abdullah that's the.guys name Ahmad Abdullah you know where.I'm going with this he's driving a car.in New York he gets stopped by officer.Jones for speeding now officer Jones.checks out Abdullah's license and.registration it turns out they're fine.there's nothing wrong with Abdullah's.license and registration on the other.hand of dulles a little nervous too.officer Jones and he also has the name.of dulla which for better for worse.suggests officer Jones maybe better.check the situation out so what does he.do he goes back to a squad car and let's.assume this is the year 2015 just so we.can make sure all this technology.actually exists it's on its way to.existing if it doesn't already exist.let's assume as the Year 2015 officer.Jones go.back to his car and he activates his.Raytheon electromagnetic pulse scanner.that's what this is okay what does this.do it can indicate whether a car or a.house for that matter has a bomber.weapons in it so we activates this.device to see if there's anything bad in.a Bill's car turns out there is nothing.bad okay but Joan still wasn't sure that.it bill is a good guy so what he does is.he attaches a GPS device you've all.heard of this global positioning system.device to the bumper of the car but.tends to be looking at bilis license.plate but what he's really doing is.attaching the GPS device to the bumper.of the car and he also of course gets a.bill cell phone number now what does he.want that because that's another way you.can track an individual if your cell.phones on you can be tracked by the.government or by anyone else who has.access to the relevant equipment ok so.the GPS device and the cell phone number.are designed to help track Abdullah and.that's exactly what the police do over.the next couple of weeks they use the.GPS device to track his car they use a.cell phone to track where he travels in.his car or elsewhere and they also use.closed-circuit TV CCTV camera systems.located all over New York City as I'll.talk about later they're probably over.10,000 cameras in New York City right.now mounted on telephone poles and.buildings and they use those cameras to.track where Billa is as well at least.when he's out on the streets and sure.enough it turns out abdella not only a.visit says local mosque but he business.lots of other mosques too and that makes.the police a little bit more suspicious.why is he visiting all these other.mosques so what do they do they decide.to get a hold of a dulles phone records.and if bank records just to see who is.talking to who's talking to him the.kinds of transactions is engaging in.they get his credit card records to for.good measure all this is easily.available via a computer if you know.what you're doing okay and so they get.that information and they contact just.for good measure a private company named.choicepoint anybody heard of choice.point just out of curiosity this is a.private company that collects.information from public and quasi a.public.it's about everyone in the United States.okay it sends out people to courthouses.and other record repositories around the.country and collects all that.information and computer eise's it and.then makes it available to the.government or for that matter private.companies that are willing to pay for it.so the police also go to choice point.and see what they can find out about.Abdullah and then it turns out of dull.lives in apartment in New York City he.sometimes keeps his curtains open so the.last thing that please do is they set up.what's called a star Tron in an.apartment across the way what's the.start Ron it's essentially a.magnification device with night-vision.capacity okay so in other words they can.watch what Bill is doing so long as it's.curtains are not drawn or unifix.curtains are drawn if they're.particularly lacy curtains they can see.right through them even at 19 of the.lights are off with the night vision.capacity of these start runs okay so.that's what the police do now a bill of.course could be a terrorist that's.possible or maybe it's just an illegal.immigrant that's also possible and of.course there's a good possibility is.totally innocent because so far he.really hasn't done anything very.suspicious right the point I want to.make do I don't want to tell you what he.is right now I'll just leave you hanging.on that point for right now but I one.emphasize right now is that nothing with.one exception with one exception I'll.get to in a second nothing the police.did to Abdullah violates the.Constitution the Constitution has.nothing to say about anything the police.did any of the searches that the police.did for evidence relating to Abdullah.okay and I think that's a roughly.stunning point to make a lot of people.are surprised by that now why is that.well the constitutional provision that's.most relevant to this kind of situations.the fourth remember you've all heard of.the Fourth Amendment it's in the Bill of.Rights and it says what you see here the.right of the people to be secure in.their houses persons papers and effects.against unreasonable searches and.seizures shall not be violated so notice.it protects houses persons papers and.effects and if the police are going to.intrude into those places they have to.do so in a reasonable way okay so what's.reasonable as I think I said last week.reasonable is the ultimate legal weasel.word if lawyers don't know what standard.to come up with they just has to be.reasonable well that's what the Fourth.Amendment does as well it says searches.and seizures have to be.reasonable well one way to make sure a.search or seizure is reasonable is to.refer to the second part of the Fourth.Amendment which is also appear on the.screen the second part of the Fourth.Amendment says warrants shall be based.on probable cause and stay with.particularity the place to be searched.and the persons or things to be seized.this by the way is the entire content of.the Fourth Amendment's 54 words they're.roughly 500 Supreme Court cases that.construe this language from the Supreme.Court alone 500 cases that construe this.language so there's a lot going on here.what does the Fourth Amendment say and.if I were going to reduce those 500.cases to one sentence here it is okay.you are now getting this one sentence.what it takes me whole semester to teach.my law students okay most searches.require probable cause what is probable.cause if you had to quantify for those.who are mathematically oriented in this.room it's about a fifty percent level of.certainty that's would be one out of two.chance there'll be drugs in the house or.the murder weapon in the house or some.other kind of evidence will be found and.in addition usually the police have to.have a warrant unless it's an emergency.situation unless the police don't have.time to get a warrant if they're in hot.pursuit of a criminal they don't have to.get a warrant obviously they still need.probable cause to go inside a house to.look for a suspect or look for evidence.but they don't need a warrant if it's an.emergency situation so that's basically.what the Fourth Amendment says there are.certainly some exceptions there are some.situations where probable cause is not.required but only something called.reasonable suspicion if probable cause.is a fifty percent level of certainty.reasonable suspicion is something like a.thirty percent level of certainty a.lower level of certainty okay and then.obviously gets a lot more complicated.than that but that's the basic idea so.that's what the Fourth Amendment says.you a question yeah what the question is.who gets to decide what's reasonable and.what isn't most of the time it's a.judicial decision not a jury decision if.there's a damages suit brought against a.police officer saying the police officer.violated the Fourth Amendment sometimes.does it happen and we may get to that by.the way later on how you remedy a.fourth-minute violation damages.exclusion of evidence and so on we don't.get to today we'll get to it next week.sure if there's a suit against a police.officer than a jury decides that.question otherwise it's going to be a.judge making this decision okay so the.way the Supreme Court has construed that.language you just saw on the screen is.essentially essentially the sprinklers.reached the conclusion that none of the.activity that went on in adults case is.governed by that language Supreme.Court's cases have essentially concluded.that none of the activity in billa's.case with one exception is governed by.the Fourth Amendment why is that because.the Fourth Amendment is basically stuck.back in the 19th century I guess to put.it the bluntest way possible the Supreme.Court still thinks of searches in terms.of what I call physical searches that is.physical intrusions into a house person.paper effect those four things that are.in the Fourth Amendment and that's.understandable if you're looking at.precedent which is what judges do right.they look a precedent cases from the.19th century from the 20th century on.the other hand we are in the 21st.century now and you think maybe they get.off the dime on this score but they.haven't they basically thought about.searches in terms of physical intrusions.but today as I think Abdullah's case.illustrates what's going on in large.part or at least in a number of.different kinds of cases what I call.virtual searches these are searches that.do not require physical intrusion they.don't require ongoing into someone's.house physically they don't require.frisking a person they don't require.rifling through papers rather they can.be carried out from officers office from.a cop's office how do they do that they.tap into a camera system and watch what.a person does or after they put that GPS.device on the car or after they got that.cell phone number they can sit in their.office and track the car track the.person without ever leaving the precinct.building they can go through millions.and even billions of Records without.ever leaving their office they do it all.via computer so in other words these.searches can be carried out from a.distance and even more importantly.arguably covertly in other words the.person doesn't know what's happening.okay so i call them virtual searches.they're not physical intrusions.there are done they're in a sense.virtual because it involves physical.intrusion they involve investigations.from a distance and often covertly and.the Supreme Court really has yet to.recognize this as going on okay or to be.fair to them maybe they recognize it's.going on but they haven't done anything.about it and you could say well maybe.they shouldn't do anything about it.that's certainly one response to what.I'm saying it's and I'm going to talk.about this what the argument is for not.regulating virtual searches just.regulating physical searches but it is.fair to say the Supreme Court is paid.virtually no attention to virtual.searches yeah question question yeah.well that's what that's going back to.what I said before but thanks for.linking up this slide with the last one.if you go physically intrude into a.house unless it's an emergency situation.need a warrant based on probable cause.and by the way it has to be issued by.Judge okay you can't get a warrant from.a prosecutor from another cop you have.to go to a judge the judge has to agree.there's probable cause and then you go.to the house with the morn and say look.I have authority to search your house in.an emergency situation you still need.the probable cause you just don't need.the warm right good question since I.just said often virtual searches are.covert how would you know that it's.going on the fact remains that if.virtual circuits were regulated by the.Fourth Amendment the police would still.need to go to a judge and convince a.judge they got probable cause to do a.virtual search of you and then you're.asking how would you find out well two.in the one area where we do regulate.virtual searches which I'm going to talk.about in a second that is electronic.surveillance of your phone conversations.it's true you don't get noticed before.they tap your phone that was sort of.defeat the purpose right by the way.we're gonna be tapping you for the next.month so don't say anything criminal you.get notice after it happens ok so at.leat you do find out about it's just.post notice as opposed to ex ante or pre.notice ok yeah question.well okay let me hold off on that.question it's a good question basically.you need probable cause don't need a.warrant usually but you because why.because the cars mobile and there.wouldn't be time to go back to a judge.to get a warrant but the cops still need.probable cause and most of the time okay.but there's a lot more to be said about.that some leave it at that right now and.there's a lot to be said about that but.I want I want to leave that alone for.right now yes mmhmm yeah so that's a.very astute question the distinction was.made between putting the GPS on the car.and then everything else that went on at.billa's case and remember i said there's.one exception the Supreme Court has said.the fortunate does supplies precisely.that situation when the GPS device is.put on the car Supreme Court has said.that's a search now I only said that.recently just this last term until 2012.it was perfectly okay to put a GPS.device on the car without worrying about.the Fourth Amendment whatsoever but the.court finally got around at least to.regulating that okay but none of the.other stuff is regulated by the Fourth.Amendment yeah last question I'm going.to move on can the completes hack into.your computer it depends on what they're.getting and so we'll talk more about I'm.guessing a lot of these questions are.anticipating what I'm going to get to so.I want to move on and then if you got if.you continue have a question they'll.take him okay okay so going further into.what the court has said about the Fourth.Amendment the key issue for our purposes.in the Fourth Amendment is what the word.search means what the word search means.because remember what the Fourth.Amendment says the government cannot.engage in unreasonable searches so it.really is important to fear what a.searches now you think of searches when.you're looking for something right.that's not the word search means you.look at that in the dictionary means.when you're looking for something.examining something looking through.something that's not what the word.search means okay we're lawyers we don't.like to make it obvious what a word.means.we like to confuse you so in fact the.word search means something very.different for a long time the word.search for Fourth Amendment purposes.meant an intrusion into one's property.interests so yeah if you go into.someone's house and look for something.that is a search why you're trespassing.on a person's house okay on the other.hand if it didn't involve a property.interest then it wasn't a search and the.fourth room it didn't apply so let me.give an example in the very famous case.of cats versus United States decided.back in the mid-1960s mr. Katz was in a.phone booth what was he doing in the.phone booth well the police didn't know.for sure but they thought maybe he was.engaged in illegal gambling they thought.it was a bookie and they wanted to get.evidence of that so how did they decide.to get evidence about that they put a.bugging device on the phone line leading.from the phone booth and sure enough.Charlie Katz was engaging legal gambling.but Charlie cats argued after he was.convicted he said that was an illegal.search why the police didn't have a.warrant and you needed one right in fact.didn't even have probable cause they had.a suspicion maybe Charlie cast was a.gambler but they didn't even have.probable cause they didn't have a.50-percent level of certainty that he.was engaged in illegal gambling and so.cat said that search is illegal what did.the lower courts say well it's true they.didn't have a warrant it's true they.didn't a probable cause but it wasn't a.search right and it's not a search it.doesn't matter whether you have worn a.probable cause or not that's the whole.point if it's not a search you don't to.worry about anything is if you're an.officer you don't need a warrant you.don't need probable cause you don't even.need reasonable suspicion that lower.level of certain you don't need any.justification if it's not a search and.the lower court said this isn't a search.therefore the police they need any.justification why it's a phone booth a.house person paper or effect is a.conversation a house person paper effect.actually one judge said a conversation.is in effect but that's hard to argue in.effect it's something like a personal.property luggage car that kind of thing.plus was there any trespass even more.important even a phone book even if you.could own a phone booth but you can't.but if you could or even if a.conversation is in effect was there a.trespass on it was there physical.intrusion on any kind of property no the.bugging device was outside the phone.booth in fact their court cases which.said if a bugging device is outside the.home there's no trespass now if on the.other hand the police use what's called.a spike mic which requires intrusion.into the property otherwise despite my.touches the wall of a house that's a.trespass and it becomes a search all of.a sudden but if instead you use a.bugging device that doesn't touch the.premises then it's not a search that was.the way search was defined prior to cast.for the United States was all based on.property concepts very technical it all.depended on what property law said but.then Kat said at the Supreme Court level.little court said Charlie cats lost but.at the Supreme Court level Charlie cats.won because the Supreme Court changed.the definition of search from one based.on property to one based on privacy and.this is the way we tend to think of the.Fourth Amendment today those of you know.this area the law know that right now we.think of the Fourth Amendment is.basically a protector of privacy and.Casper's United States is the case that.established that a police action a.search is a police action infringes an.expectation of privacy that society is.prepared to recognize as reasonable but.notice it's not just any old privacy.concept it's an expectation of privacy.that society's prepared to recognize is.reasonable now who gets to define when.expectation of privacy is reasonable.judges most of the time right not us.even though it says an expectation of.privacy the society is a prayer to.recognize the reason we think oh that.involve society somehow no it's the.judges who get to decide what's.reasonable but at least it's focused on.privacy as opposed to property and so a.lot of civil with Terry's were very.happy about cats oh good this broadens.the scope of the Fourth Amendment from.these narrow property concepts to this.broader concept of privacy so for.instance now we can say electronic.surveillance of phone conversations and.interception of email communication is.in fact a violation of Fourth Amendment.less you have a.warrant and probable cause because.clearly privacy's in beat is being.invaded when the intercept your phone.call when the interceptor emails and in.fact that is true since cats the court.has said that have the police intercept.your the content of your phone.conversations or the content of your.emails in other words the intercept the.content of your communications then the.Fourth Amendment's implicated but go.back to their deli case the police.didn't do any of that in Abdullah's case.right they didn't intercept any of his.conversations over the phone they didn't.intercept any of his email the content.of any of the emails they did find out.who he was calling and who was receiving.calls from they got phone numbers and.they did find out who where he was.spending money and where he was charging.his credit card but they didn't find out.the content of any of his conversations.so nothing in EM Della's case implicates.the Fourth Amendment after cats and I.want to explain why by talking about.four Supreme Court doctrines but I'll.take a couple questions before I do yeah.wait to hear what I have to say okay.okay so because that's wrong okay no.it's cited it but the question is did.Cass rely on Roe versus Wade as you all.know that's the case I had to do with.abortion and certain the court talked.about privacy but that's a different.genre of privacy so it didn't really.focus on Roe versus Wade kinds of.concepts but of course Roe vs. Wade came.after cats so it couldn't have actually.cited it but it didn't even really get.into that area of privacy got into.different areas of privacy having to do.with government intrusion for the.purpose of getting evidence so how did.the court end up restricting the.definition of search so significantly.despite the fact that searches are now.are defined in terms of privacy these.four doctrines are the way the courts.done it the known exposure doctor and.the general public use doctor and the.contraband specific doctor and the.assumption of risk doctor I'm going to.talk about off with these doctrines.without getting too technical because I.know you don't hear a whole bunch of.technical stuff but I think you'll find.it very interesting the way the court.analyzes when we have expectations of.privacy and these four doctrines of the.way the court does it the first document.is simply this what a person only expose.it to the public even in his own home or.office is not a subjective fourth.remember tection what you knowingly.expose to the public even if you're in.your home or your office is not private.okay and cats itself said this this is.the case to supposedly expanded the.scope of the Fourth Amendment this comes.from cats itself so what has happened.since cats well the current Supreme.Court which many of you know is a.relatively conservative court relatively.prosecution oriented relatively law.enforcement oriented has taken this idea.and run with it so you get a case like.knots versus United States this is a.case where the police put a beeper on.the defendants car actually they put a.beeper in a can of ether that the.defendant purchased and then put in his.car and they follow that car for about.an hour using the beeper and not said.this was a search it's certainly not.reasonable to expect the government's.going to use a beeper to track you for.an hour or more as you travel around the.streets but the court said no your.knowing.exposing yourself if I may use that.phrase it's a little risque but.nonetheless you're not really exposing.yourself as you travel around the public.thoroughfares this is what the court.said a person traveling and an.automobile in public thoroughfares has.no reason expectation of privacy in its.movements from one place to another.period so when you're out in public you.have no privacy that's what not says.okay you have no privacy in public the.court expanded that in what are called.to fly over cases these are cases that.came down in the 1980s basically what.the court said is in fact police can.spine you not only when you're in public.but also even when you're on private.property so long as it's what's called.the curtilage of your home ok what's the.curtilage this is something you can.press your friends with if you don't.know already curtilage is the area.immediately surrounding your house it's.an old property term okay the curtilage.of your house as the name sort of.implies is immediately around it's your.backyard base your backyard in your.front yard okay what you put a fence.around if you could afford a fence okay.so even spine on the curtilage is not a.search does not infringe expectations of.privacy if it's done from the air now if.you intrude on the curtilage that might.be a different story if you physically.intrude on the curtilage maybe that's a.search but if you're in a helicopter 200.yards above the curtilage it's not a.search okay why not well here's the.answer because any member of the public.and navigable airspace could have seen.what the police see any memory the.public of rent a helicopter and fly 200.yards over someone's backyard right true.so you're knowingly exposing to the.public what's going on your backyard by.having a backyard without a roof over it.okay if we had a roof you wouldn't be.knowingly exposing what's going on your.backyard but since you don't I assume.you're knowingly exposing yourself to.any member of the public and therefore.the police can do it without any.justification whatsoever right it's not.a search you don't need any.justification whatsoever so what are the.police do they fly over lots of.backyards one of my favorite lines in a.spring court case came in one of these.flyover cases because in one of these.flyover cases the defendant did actually.have a fence around his backyard a 10.foot high fence opaque fence and he said.what Lisa and that's it.I have an expectation of privacy right.I've created an expectation of privacy.by building this fence around my.backyard and Chief Justice burger said.no you didn't because anybody in a.double-decker bus could have looked over.the fence he he said it i'm not making.this up okay apparently just returned.from a trip to London he said no I mean.anything could happen so even that.defendant lost no expectation of privacy.because after all there are double.decker bus is somewhere okay so that's.one application they know an exposure.doctor now there is this one exception.and this is the case that came down just.this last term the Court did say that if.the police track you by using a device.they put on your property that is your.car then that is a search in jonesville.united states that please put a GPS.device on Jones's car and tracked him.for 28 days 28 days and the court said.that was a search because they affected.the search through a trespass now it's a.very trivial trespass and I can tell you.with someone who knows property law that.that would not be an actionable trespass.okay you wouldn't be able to get damages.if someone put something on your car.bumper but Justice Scalia wanting to.show he is a liberal disguise.nonetheless said that this is a trespass.and therefore the Fourth Amendment is.implicated so that's the one exception.remembering adults case Jones did put.officer Jones did put that GPS device on.the bumper that now would be a search.what does that mean you need some kind.of justification to do it you can't just.do it willy-nilly now do you need.probable cause and a warrant I said.that's usually what you need but it's.not clear from Jones Jones doesn't say.what you need you need some.justification but we don't know yet what.the justification has to be but the.important point is it is a search yeah.if there's a trespass but how do most.police track people these days they.don't use GPS devices that's old news.now rarely do use a GPS device trucks.I'm use their cell phone under federal.law your cell phone has to be.sophisticated enough to enable you to be.tracked within 15 feet of your location.so every modern cell phone has that.capacity or put it this way law.enforcement has a capacity to track you.within 15 feet of your location if you.have a modern sofa and track it with.cell phones does that involve a trespass.no no trespass at all unless one Lord.made this argument unless you trespass.and electronic particles that are being.emitted from your cell phone that.argument didn't win but hey what the.hell if trespass is going to be the way.we look at this then you as a lawyer you.make the argument you think will win.it's not going to win but and since it.won't win that kind of tracking is not.does not infringe the Fourth Amendment.does not implicate the fourth room it.need no justification whatsoever to.track with a cell phone in fact our own.sixth circuit the circuit court that.applies here held that just three weeks.ago the cell phone tracking is not a.search it held that after Jones it.distinguished Jones from cell phone.tracking yeah okay so the question is.can you apply Jones retro actively.basically no I mean there there are some.there's some issues about that but.basically these two kinds of decisions.if they ever are pro defendant and of.course they really are these days but if.you do have a pro defend the decision.that comes down the pike like Jones.virtually never is that are applied.retroactively Lee okay so governments.have taken the knots idea they've no an.exposure idea and run with it so for.instance you have as I alluded to a.little bit earlier camera systems in a.large number of cities in fact the.federal government is helping to fund.this in Chicago there 2400 cameras and.that Rahl instituted as a under a.program called virtual shield and these.cameras have night-vision capacity they.have zoom capacity so you can zoom in on.what a person's reading some of them.have facial recognition capacity which.you may have heard of it's a.computerized program it allows police to.see if a face on the street correlates.with the face in their files in their.mug files to see if a criminal is.walking the streets New York City back.in 2006 I had 4200 cameras just in low.Manhattan just in lower Manhattan today.the number is about double though I.should add that number includes private.as well as public cameras so that's not.all public CCTV it's also private.cameras in stores in Chicago the east.cameras are all linked in with a 23.million dollar command center so in.other words please can monitor all these.cameras of 24 7 with facial recognition.technology again they have night vision.and zoom capacity so basically if you're.in chicago new york city you're being.watched all the time if you're in public.you're on camera so smile okay the.knowing exposure doctrine goes further.than that though because it also.suggests if you're in public the police.can use not only cameras that you know.about because there's a sign saying CCTV.in the vicinity or you can see the.cameras up on the building the telephone.pole it also allows public surveillance.using satellite cameras or you may have.heard recently drone cameras the drones.that used to be in Afghanistan are now.coming over here there are being.equipped with cameras the federal.government predicts that in the next 20.years will be 30,000 drones 30,000.drones flying over this country they.have camera capacity some of them have.chemical pasi that allows the government.to pick up your license plate number so.they're pretty good cameras okay does.any of this implicate the Fourth.Amendment know why it's in public right.if you're in public you're knowingly.exposing yourself to CCTV and to drone.cameras and a satellite cameras so.that's the knowing exposure talking but.i'm still not through okay because as I.said you can track using cell phones no.problem in another development i have.not alluded to yet is something called.RFID radio frequency identification.devices some of you are nodding your.head you've heard about this virtually.anything can be outfitted with an rfid.what does it do it sends out a pulse.which can be tracked now some off RF.ideas are not very good you have to be.within 200 yards of them in order to.pick up a signal all theirs are very.good and you can track over a much.longer distance so this is another way.of tracking so now remember Jones if you.have to trespass on someone's property.to fixate this RFID then you got a.problem as far as the fourth room is.concerned okay so in other words if the.police put an RFID on your luggage that.would violate Jones there need to be.some justification but what if the.police do this what if they put an RFID.on luggage before you buy it not that's.what they did it not so they put that.beeper in the ether can before the.defendant bought it there's no trespass.there okay because the RF these put on.that property before it becomes your.property so the trespass did not occur.while was your property so what's the.moral of that lesson for the police put.an RFD on everything no they're not.doing that yet but they could these are.pretty cheap put it on everything and.then activate it when you want to.activate it if they suspect someone you.activate it and follow their luggage.around and there's no violation of Jones.because they are fi do is put on the.luggage before you bought it yeah it's.the merchants property absolutely and so.the Mercia can say you can't do that but.what merchants going to say that right.unless maybe he belongs the ACLU right.you can say don't put that our dear my.luggage oh no certainly not and the.government public say don't tell the.customer right but I'm telling you right.now it could happen so now you know okay.and by the way the analog do this is.already happy with respective cars in.California there's something called an.intelligent transportation vehicle.system intelligent transportation.vehicle system what does this do it.requires manufacturers to put.transponders in everyone's car that.sends out a signal as to where everyone.is and this can this data can be.accumulated not just in real time and.others not just while you're driving but.a record can be kept with us so if the.police want to find out where you've.been the last month they can do this.using the transponder why does it.violate Jones the transponders put in.the car before you buy it so it's not a.violation of Jones yeah.just to what make it a speech in active.on the luggage please okay so the.question is what if it's putting the.lugs before you buy it or put in the car.before you buy it not activate Brazil me.because I'd be wasting energy then it.gets activated that's what happens with.a cell phone right they don't actually.start acquiring the signals unless and.until is turned on okay I think as a.lawyer I would argue that in other words.if the police have to be the ones to.activate the signal that somehow it.becomes a search I doubt Scalia would.buy that but it's an argument that could.be made so good point yeah LoJack yeah.and you can sent it to putting the.LoJack on in your car interesting.question again maybe you can make an.argument that if you put a device on.your car for one purpose it shouldn't be.usable for another purpose but you can.tell from the cell phone tracking cases.that doesn't work right because why do.you buy cell phone not so the police can.track you right you buy presumably so.you can do email get on facebook etc etc.and yet that argument and yet it's still.possible to track you with your cell.phone yes I'm not even close to done by.the way with all the surveillance what.gets on the first doc and I got three.more to go uh-huh yeah good question how.effective is this stuff I'm on.closed-circuit TV there are a lot of.stays mostly out of the United Kingdom.because they're over 3 million cameras.in the United Kingdom they've had.cameras for a long time it's absolutely.true you can't go anywhere in united.kingdom in an urban area without being.on camera and the time you leave your.house the time you get back to it they.have found that when you have good.cameras in other words modern digital.cameras as opposed to those old fuzzy.things crime can be reduced by four to.six percent.four to six percent that's it okay and a.lot of times that crime gets displaced.and also as criminals learn about what.cameras are they wear masks they commit.the crimes in areas where the cameras.don't focus again you can't have a chem.on every square inch right so there are.certain posts I that are not covered by.cameras there are also crimes that are.caught on camera but they're impulsive.crimes so then we're not going to deter.crimes now it might help you figure out.who committed the crime in that.situation but the camera doesn't prevent.the crime lab because it's an impulse.it's an impulse kind of crime but crime.has been reduced by four to six percent.and maybe it's worth it that on the.other hand these cameras cost an awful.lot of money so and by the way it.prevents very few violent crimes okay.the client violent crime rate is not.going down significantly but there has.been a reduction in property crime maybe.it's worth it maybe it isn't one study.found that cameras in a private store as.a post on a public space private store.yes it did prevent some degree of.shoplifting but actually the cost of the.cameras was more than the theft that it.prevented so I'm not saying that applies.to everything but that's what one study.found so arguably that's the kind of.analysis legislators should be engaging.in before they go hook line and sinker.into this kind of surveillance so it's a.good question but the bottom line answer.is we don't really have good information.yet this a lot of stuff is just start in.the last three or four years and we.don't have real good information and how.effective all these kinds of.surveillance are ya.there we go so maybe that's.cost-effective it depends upon how much.the RFID cost but obviously that.organization decided it is cost.effective just make sure that you wash.that top when they come and get it from.you the theory of behind the fake.cameras is obviously that will deter.without costing you much money.whatsoever again you've heard what the.data is with respect to camera.surveillance even with real cameras.forty-six percent reduction in crime so.again you can add that to the cost.calculus but it would be cheaper.obviously if you believe the cameras do.deter I'm suggesting they don't deter as.much as we might think given the data.two last questions and then I want to.move on yes mm-hmm.they lied to you yeah good question I.don't know for sure the answer to that I.can tell you the predicate is you.certainly have the right to demand their.not be an RFID in your luggage and if.enough people do that what will happen.there'll be stores in which the owners.do in fact refuse to allow this to.happen because they want people to buy.their luggage okay but assuming that.doesn't happen and in others the store.does put the RFID and lies to you about.it could you later say that's a.violation the fourth and I think you've.got a good argument but wait till I get.to the fourth doctrine and you'll see.that in fact line doesn't really count.for that much okay last question they.want to move on okay yeah so they're.already on a lot of things and again.they can be used to track okay and you.can see how the police might want to.track a book especially if it's a book.that touch how to make bombs okay so.let's say now that the police want to.look inside your house we're no longer.talking about looking at public activity.where you can see an argument hey any.member of the public could see you there.for the police ought to be able to see.you now we're talking about looking.inside your house this goes back to your.question a little bit earlier even.that's okay if what the police are using.is technology that's in general public.use ok so in doubt chemical case back in.the 1980s the court said that even a.twenty-two thousand dollar mapmaking.camera is in general public use in other.words any old person can go buy one of.these things and use it therefore you.have any expectation of privacy with.respect to the use of these things okay.now it happened the dow chemical.involved use of this camera to look at.curtilage remember test what is courage.mean very good okay so you could say if.your lawyer you say Dow Chemical only.applies to use of sophisticated.technology in general public use that's.looking at curtilage not inside the home.and if you're a lawyer you be there for.if you're making that argument be.gratified by this case the Kyllo case.which involved use of what's called a.thermal imaging device to look inside.home what is it.imaging device do it it calculates heat.differentials inside the home and that.allows the police sometimes to figure.out what's going on inside a home and.kylo itself they were able to figure out.there were some very high intensity.klieg lights inside the home what does.that suggest marijuana you're growing.marijuana why would you have high.intensity klieg lights in house if you.weren't growing drugs well actually some.defense attorneys would answer that.there are lots of things you could be.doing with this klieg lights but.nonetheless the court the police after.getting this thermal imaging reading.went to a magistrate master said that.gives you probable cause to go search.the house and the police did the.argument by the defendant was though.yeah they had a warrant when they.searched my house but they didn't have a.warrant when they used that thermal.imaging device to see the heat.differentials inside miles and that was.the search the lower court said no it.isn't a search why thermal imaging.device general public use okay lots of.people have thermal imaging devices yeah.well you know after dow chemical if a.twenty-thousand-dollar mat making camera.is in general public use then hey.thermal imaging devices only cost half.of that at the time of carlo so it.wasn't a totally off-the-wall argument.but the Supreme Court do a line here it.said if you're looking inside a house.with a thermal imaging device that is a.search you need probable cause and a.warrant to do it why because a thermal.imaging device is not in general public.use it's not something that the average.member of the public house and therefore.you can't use it to look inside the.house so that sounded like a blow for.civil liberty civil libertarians who.want the Fourth Amendment to be.expansive but of course there still is.this general public use doctrine so what.does that mean you can look use.binoculars look inside a house.binoculars are clearly in general public.use for that matter you can use a.telescope I've been to walmart in fact I.wrote an article called the walmart test.okay when is something in general public.use when you can buy to walmart if you.can buy a Walmart anybody could own it.right this camera has a 200.magnification I mean this telescope has.a 200 magnification capacity so it's.very powerful but I would argue far the.prosecutor it's in general public use.anybody can buy this for just box.now more like a hundred dollars but it.wasn't one time fifty dollars so if I'm.the prosecutor-general bugbug you stand.you can use that to look inside.someone's house if you want to how about.the starter on using a billa's case no.problem you can buy on ebay for less.than four thousand dollars so that.magnification device with night-vision.capacity if I on the prosecutor argue.that comes into the general public use.exception announced in Dow Chemical and.Carlo even thermal imaging devices today.you can get for 1,500 bucks maybe you.can't get a Walmart I haven't checked.but you can get it relatively cheaply so.maybe thermal imaging devices were not.in general public use back in 2001 when.Carlos decided but if I'm a pasta course.I hate things change now even thermal.imaging devices on general public use ok.so that's doctrine number two but I'm.not finished with that doctorate kylo.well actually I infants for that.doctrine but I want to go back to.something else Carlos said kylo said.that even if the device is not in.general public use like what would be an.example that a satellite camera.presumably that's not in general public.use but you can say with Google Earth.maybe it is that's an interesting issue.but anyway assuming a drone camera or.satellite cameras not in general public.use it can still be used to look inside.a house if all it does is replicate what.a cop could see with the naked eye from.a public vantage point you understand.that point so in other words if a cop.could see inside your house from a.sidewalk near your house a satellite.camera or drone camera can see the same.thing without implicating the fourth at.all okay now why wouldn't you use a.naked eye observation by a cop instead.of an expensive satellite camera well.maybe because of the cop stand on the.sidewalk you're going to see them and.draw your curtains the advantage of a.satellite cameras you don't the the.suspect doesn't know that you're beat.that he or she is being observed but.Carlos says nonetheless that's okay so.once a cop could theoretically have seen.what the drone camera satellite camera.sees with the naked eye from a public.vantage point so basically what these.pictures represented you can use drone.camera satellite cameras looking.house if a cop could see the same thing.with the naked eye from the sidewalk.we're not through with all the.surveillance devices now I'm a doctor.number three let's say you're wise all.this and you basically make your house a.fort okay you draw all of your curds you.have very very thick curtains so nothing.can be seen through your windows when.you have those curtains drawn annual.walls are very very very thick so no.thermal imaging device can see through.them okay there's still another doctor.to think about i call it the contraband.specific doctrine it was announced in.the place case back in 1980s and.involved a dog sniff you've all seen.this or at least heard of it dog.sniffing luggage to see if their drugs.in it the court said this is not a.search why all the dog alerts to is the.presence of contraband the presence of.drugs it doesn't alert anything that has.significant privacy value connected with.it the dog doesn't alert to dirty.underwear or towels or anything else it.only alerts to marijuana if all the dog.is alerting to is contraband there's.nothing of legitimate privacy.significance that the search is.revealing so the court said this isn't a.search even though it is looking for.something or sniffing for something it's.not a search because only contraband is.discovered as a result of it well dogs.are probably the only real example we.have of contraband specific searches.right now or contraband specific.intrusions Bertha's x-rays reveal more.than just contraband right so what you.see here would not be a contraband.specific search why Moresby obviously.more is being revealed then just.contraband but I show this picture to.you because this is what happens to you.when you go to airport these days okay.there are devices that do this at some.airports including here in Nashville and.the Raytheon device that I described at.the beginning remember the Raytheon.electromatic pulse scanner that's being.developed by Raytheon and it will be.able just to discover weapons and bombs.it will be contraband specific it will.not be like this revealing a whole bunch.of stuff there were the only weapons and.bombs bombs and under place that's.perfectly okay even if they beam it at.your house.with your closed curtains okay so long.as all its discovered is contraband then.it's permissible now of course there's a.question in Tennessee as well as 27.other states it's okay to have a.concealed weapon it's legitimate so if.they see a weapon using the Raytheon.device is that a search or isn't it and.that hasn't been settled yet if I'm a.prosecutor I say hey if it's a weapon I.got to check it out and so long as my.device only detects weapons and nothing.else I should be able to do without.worrying about their Fourth Amendment.but of course we had a defense turn you.say it depends on whether you're in a.state where you can have concealed.weapons and where you can't so I don't.know how it's going to come out yeah.there are devices that they're trying to.develop the question is are the devices.yet they can discern whether you've got.plastique on your person or in your.person I supposed to something metallic.and that's a lot harder to discern these.devices can do it for sure but they're.not contraband specific because they.reveal a whole bunch of other stuff too.there is a case that's going to be.decided this term involving another dog.sniff this time a dog sniff of a house.as opposed to luggage and do this dog.sniff of the house they had to go on the.person's curtilage okay bed and see see.how much you're learning here curtilage.they had to go on the defendants.curtilage so what should the court.decide it is a dog sniff place says.that's not a search but what will be the.defense argument to trespass on private.property and you cite Jones right you.cite Jones for the proposition that if.you need a trespass in order to carry.out the search then it is a search for.Fourth Amendment purposes what would be.the prosecution response a lot of people.have sidewalks leading right up to their.front door that invites people in okay.no I'm serious this is a property law.concept if the courts going to go with.property this is an argument I make us a.prosecutor granted your curtilage your.private probably with the police stay on.the sidewalk in the porch then arguably.that's private property on which on to.what you invite people basically you can.set to have strangers come on your.property with the sidewalk and a porch.now thing all the way around the house.to the backyard that's a different story.yeah mm-hmm so all of that could be a.privacy invasion you could sue people.for it probably lose but you could since.you know if you've got celebrity status.you're going to lose but it has nothing.to it the Fourth Amendment of course.that's what the Fourth Amendment has to.do with government action when the.government engages you could argue in a.damaged the suit against the private.news companies or whatever was involved.in the silicon and van surveillance you.could sue them on a trespass doctrine.but I think the better way to go is.invasion of privacy there's a tort for.that which you it's pretty hard to win.those ok so I've talked about three.doctrines knowing exposure general.public use and contraband specific I'm.not even close to finished with what the.government can do I'm getting to the.fourth and final doctrine this is the.most powerful exception to the idea to.privacy auto govern when there's a.search under the fourth amendment what's.the assumption of risk doctrine here it.is in one sentence comes from a 1976.case an individual takes the risk and.revealing his affairs to another that.the information will be conveyed by that.person to the government and here's the.part that's relevant to the deception.point we were talking about earlier even.if the information revealed on the.assumption it'll be used only for a.limited purpose and the confidence.placed in the third party will not be.portrayed what does that mean you give.something to another person you assume.the rest that person will turn around.and think you out to the government and.therefore you have no expectation of.privacy you've exposed that information.to a third party as soon as you do that.you lose all expectation of privacy with.respect to that with that third party.might do now this might make some sense.a civil libertarian would argue if the.third party is a person why if you give.information to a person he loves your.friend that friend has an autonomy.interest he should be able to do he or.she should be able to do whatever they.want with that information they want to.give it to the government should be able.to.they have an autonomy interest that.might trump your privacy interest but.Miller involved a bank the third party.in Miller was a bank and the question in.Miller was can the police get the.information from your bank about your.transactions without worrying about the.Fourth Amendment and Miller said yes why.you gave that information to make you.assume the risk the bank will turn.around and give it to the government.assumption of risk this is what I call.an institutional third-party case okay.the third party is not a person but an.institution to bank and the court said.you assume the risk that when you give.information to a bank it's going to turn.around and get to the government they.said the same thing with phone records.and Smith they got the defendants phone.records they found it everybody called.everybody got calls from he said you.can't do that that violates my privacy.the court said no it doesn't doesn't.like violate privacy as we define.privacy remember courts get to define.what's the reason expectation of privacy.not us and what the court said is you.assume the risk that when you dial a.phone number the phone company will.record that number and hand it over the.government and the court also said you.should know that that's what happens if.you don't you should know and now of.course all you do know so you can no.longer you you didn't know okay but I.know you knew that already your phone.number is recorded by the film company.not only want you dial but the ones you.get phone numbers from by the way same.thing for email every email address you.send something to every email address.you we see something from your internet.service provider has a log of all that.and Smith applies to that we have no.expectation of privacy and information.now it's not the content of your email.it's not the content of your phone calls.but the government can discover a whole.lot just by looking at who you call who.you send emails to who you receive phone.calls from who you receive emails from.okay so it's very useful information not.denying that the Civil of returning that.would say but the government ought to.have some justification before they get.that information and the court says no.they don't they don't need any.justification its assumption of risk.yeah.oh yeah I mean well you're asking about.the FBI certainly it applies the FBI NSA.the National Security Agency though i.like to call it no such agency i was.going to task force for five years.dealing with surveillance issues and.there were two representatives from the.NSA at all of our meetings and not once.did they say a single word all they did.was write down stuff was very scary very.intimidating they don't like to talk.about what they do my guess is they pay.know it even if the court reversed all.these decisions and said all this.violates privacy the NSA wouldn't care.and the NSA would do whatever it wants.to do why on national security grounds.and they might actually win that.argument if ever got the court but of.course it never will get the core.because we don't know what they're doing.yeah okay so the question what if you.tell your doctor information or your.lawyer information well let me get to.that by going to the next two slides.this assumption of risk doctrine is.incredibly powerful because of these two.pieces of information the world's data.about us personal information is doubled.every year and computing power is.increasing even faster so what does this.mean all this stuff and third-party.records is very easily accessible if you.know how to do it okay including this.kind of third-party information store.receipts tax records bank records and.Hospital charts you think about it what.you give to your doctor you're giving.information to a third party you assume.the risk that doctor will turn around.and give it to the government now in.that one case some states have said.we're not going to follow Miller that's.going too far banks maybe phone.companies me but doctors in no way so.what state courts have done some steak.was not many but some have said based on.our state constitution we are going to.say hospital records are protected with.the warrant requirement we're not going.to follow the assumption of risk third.party Miller doctor okay so you can make.distinctions it's just what the point.I'm making is right now for us a Supreme.Court's concerned there are no.distinctions okay yeah.go to the insurance what if the doctor x.ago the insurance company is it what.Miller says is if you voluntarily convey.information to a third party your host.as far as the Fourth Amendment's concern.what oh yeah yeah the States was still.protect your your the states that have.refused to impose Miller would also.protect the against insurance records.medical records going to insurance.companies being revealed without a.warrant so you have protection in those.states but again they're not very many.of them and yeah last question they want.to move on yeah okay so the question is.what about HIPAA what is it per se if.the government asks for medical records.it gets them that's what it says it's.hipa protects your privacy medical.pricing in all sorts of ways but not.from the government okay now usually the.government as to get some kind of order.some kind of court order doesn't have to.be a warrant it can be a subpoena you've.all heard that word right what's a.subpoena it's basically a prosecutor.saying I think this information is.relevant to whatever I'm doing it's not.probable cause it's not even reasonable.suspicion its relevance almost anything.is relevant to a criminal investigative.about that relevance is a very low.standard you've all heard or maybe.you've heard the phrase that when.prosecutors go to a grand jury to get an.indictment they can indict a ham.sandwich what does that meant to imply.it's very easy to indict people why is.easy and I people because all you need.to show is you got some relevant.information suggesting this person's up.to no good so HIPAA does require.subpoena most the time but it's very.easy to get a subpoena basically the.government can get medical information.almost any time they want it not anytime.you want it but almost any time under.HIPAA and under the Fourth Amendment.they don't need any justification and.that's the point I'm really trying to.possess the country if they got rid of.HIPAA the Constitution will provide no.protection whatsoever visa big.government investigation so what is the.government doing under the authority of.the third party doctrine it's developing.what some people called Adam Lane.programs you heard this phrase before.data mining so you have a program like.reveal which is run by the federal.government it combines 16.different government databases including.the database from the Social Security.Administration and the database from the.IRS and it can go through all 16.databases like that looking for personal.information about particular individuals.there's a program called matrix one.thing you'll notice is that the.government's not really good at PR when.it names these things you probably don't.want to call a surveillance program.reveal I mean it's just not good PR call.I don't know call it getting information.called data mining but reveal and then.we've got matrix which has got its own.problems given what Hollywood's done.with the word but this program was.something the states could use to access.tens of billions of records in seconds.tens of billions I'm not talking.millions tens of billions of records in.seconds and then we got the most famous.one talk about bad PR this is what.Admiral Poindexter called the big data.mining program that came into being.after nine eleven total information.awareness okay this didn't go over well.and in fact was defunded in 2003 even.Republicans voted against it even after.they changed the name to terrorism.Information Awareness okay why was it.voted against well you probably can't.see but if you look on the left hand.side that very small print and left hand.side what tra was meant to do was access.financial educational travel medical.even veterinarian records you know your.dog might be up to no good.transportation records halogen records.critical resource records government.records and communication records that's.what that left hand side says access all.information and Constitution doesn't.prohibit any of that it's all.third-party information and then apply.algorithms meant to identify who the.terrorists might be going back to your.question about effectiveness to our.knowledge they've never found a.terrorist using this but we don't know I.mean they may have they just aren't.telling us ok I'm going to believe they.may have found one or two but how many.people's records have they gone through.in order to find out about there's one.or two tourists we don't know so as I.said all this was defunded in 2003 I.think the main reason was this this was.Admiral point textures icon.kirti I and he was very proud of it what.does it say total information about some.information awareness office it's got.this pyramid with the all-seeing eye.looking out over the globe if you know.Latin that Latin there is knowledge is.power well that scared as I said even.Republicans if we don't want him to do.with this we're going to get rid of this.and they did however the main point is.that we still have it there are now 73.so called fusion centers in the country.today what does the fusion center it's.meant to do exactly what ti y does it.collects information from lots of.sources infuses it together and there's.73 at least 73 that we know of around.the country doing this including one in.Nashville yeah government-operated yeah.and they're used by law enforcement okay.so that's that's i'm now done with what.surveillance is doing i want to quickly.go into whether we should care yeah well.yes the connection is that the police.can use google just like we can and of.course what the government argues is hey.if we can use google why shouldn't it.please be able to use google yes so yeah.okay i'm sorry yeah the police can use.google like we do and they also can use.are the police can get access to our.cookies that is where we've gone the URL.else we've visited even if there are.some restrictions even just knowing the.URL so places you visit it tells the.police a whole lot about what you're up.to and the police use that all the time.and again it's not restricted at all by.the Fourth Amendment okay so the.question is to what I tell some people.but I don't care I've got nothing to.hide I don't care if the government's.doing all the surveillance I'm not.guilty take abdellah if it turns out he.is a terrorist great you know if we find.out from all this virtual searching he.is a terrorist we've got a big plus in.the win column even if it turns out he's.only an illegal immigrant we've done.something useful and if it turns out.he's innocent he'll probably never know.it he'll probably never know the.surveillance took place right it's all.covert so who cares I think that's a.perfectly plausible response to every.I've been saying okay so let me talk.about why might still need to worry.about I don't know how easy this is to.see this is the result of a study I did.along with two other people asking.people how intrusive they thought.various kinds of police actions were the.actions you see in white are physical.intrusions remember that distinction.made between physical searches and.virtual searches the ones you see in.white are physical intrusions the.Supreme Court has said a roadblock is a.search and a seizure that requires some.kind of suspicion you know when they.stop you on the road stop you in your.car that's governed by the Fourth.Amendment and you need either a.localized problem like drunk driving or.you need some kind of suspicion that the.person you're stopping is up to no good.number four first you all know what that.is it's a pat-down that's also governed.by the Fourth Amendment and requires.reasonable suspicion remember that level.of certainty below probable cause that.requires a frisk requires reasonable.suspicion number seven search of a car.going back to the question is asked.earlier you need probable cause for a.search of a car why it's seen as more.intrusive than a frisco frisk is just a.pat-down search of a car scene is more.intrusive so you need that fifty percent.level of certainty and then number ten.search of a bedroom you need probable.cause and a warrant unless there's an.emergency situation because that's the.most intrusive kind of thing okay so.what do people think about virtual.searches in terms of intrusiveness well.it turns out number is eight and nine.accessing internet service provider logs.like we talked about second ago perusing.bank records they see that as it leases.intrusive a search of a car and almost.as intrusive a search of a bedroom so to.the I got nothing to hide argument the.argument can be made hey this virtual.searching can be very intrusive as.intrusive as searching a car so maybe we.need probable cause for that how about.putting a beeper on a car tracking a car.people saw that as almost as intrusive.as a frisk so if a frisk requires.reasonable suspicion may be tracking.should require reasonable suspicion and.then how about public camera.surveillance people saw this is more.intrusive than a roadblock and as I just.got through saying a roadblock is.governed by the Fourth Amendment so why.wouldn't camera surveillance be governed.by the Fourth Amendment if we're worried.about relative intrusiveness it's also.the case that virtual searches can be.abused just like physical searches can.be abused so you all know about Jo.Hoover accumulating dossiers on his.enemies that was a record search kind of.Investigation he was doing back in the.old days when we didn't have computers.John Mitchell same thing Attorney.General John Mitchell accumulated lots.of information about anti-war protesters.during the Vietnam era and that was seen.as an abuse more recently you get these.kinds of headlines I'm using virtual.searches and most prominently you've got.this headline this headline refers to.the FBI's use of national security.letters has anybody heard of national.security letters these are letters that.can be issued by a special agent what is.the term special agent mean it means any.FBI agent I know it sounds special but.basic with any FBI agent okay doesn't.have to imagine it be a judge doesn't.have to even be a prosecutor it's a.special agent that issues National.Security Letters now there is a.limitation on national security letters.they have to be aimed at getting.information about national security okay.but if you can convince yourself as a.special agent that what you're going.after is national security related.information can issue one of these.letters and it authorizes getting.financial records bank records credit.card records travel records a lots and.lots of Records not the hospital records.but a lot of other kinds of records what.this headline suggests is this authority.has been abused and it was okay.independent audit indicated was being.abused so there is this possible problem.with virtual searches that they can be.abused other possible problems what's.called mission creep okay even if the.government's acting in good faith you.can have the development that is well.known and many other arrays as well.where a program starts out focused on.one thing and then slowly but surely.starts expanding to other areas so for.instance total information awareness it.was a terrorist program right that's.what it was all about that's what.Admiral Poindexter wanted to do but but.now.well in its fusion center form it's.being used to investigate and nab.illegal immigrants fusion centers being.used by regular law enforcement agencies.to get all sorts of information about.any kind of crime in fact one.individuals interviewed by a professor.here at Vanderbilt said this is a direct.quote people would freak out if they.knew what we were getting through these.fusion centers all sorts of information.is being obtained by these fusion.centers again they started off as being.devices for detecting terrorism now.they're being used for lots of other.reasons cameras design of course to.detect the deter crime but in United.Kingdom what are they used mostly for.remove homeless people off the streets.we see a homeless person in the camera.we send the police in get rid of them.they've also been shown to be relatively.well let's just leave it at that you can.also make mistakes you all heard the.no-fly list that is list based on.virtual searching that are designed to.figure out who suspects are we want to.keep off airplanes well you all probably.heard the Ted Kennedy was on the list so.that was presumably mistake I'm not.positive but presumably the second.individually see here I was an assistant.attorney general in the Department of.Justice he was on the no-fly list and.then my favorite this is a picture of.Bob Thompson he actually was on.Vanderbilt Law Faculty until two years.ago when they removed him know when he.he actually transferred to Georgetown.Law School but he was under no-fly list.he was routinely stopped so mistakes can.be made even when the government's.acting totally in good faith and more.importantly based on records in records.compilations over 15,000 people of.Middle Eastern descent were rounded up.after 911 and subjected interviews.scores of these individuals were.detained as material witnesses only one.of them's been convicted for a terrorist.act and was all started with the kinds.of virtual searches we're talking about.so there can be some downsides to this.in a very tangible way there are also.some less tangible ways in which virtual.searching can have negative effects.remember that argument that's often made.against the virtual regulating virtual.searches which is I've got nothing to.hide I think it's a good argument my.wife makes it to me all the time I don't.care what you're writing about Chris.I've got nothing to hide they can do.anything I want.as far as surveillance concern okay it's.my wife we get good arguments begin good.argument but it's also interesting to.see how people respond to this argument.Daniel Soloff sent this argument out.over his blog to see what people would.say and there were some good responses.if you've got nothing to hide why do you.have curtains okay if you've got nothing.to hide can I see your credit card bills.for the last year if you've got nothing.to hide i love this one then you don't.have a life okay it's just something to.think about okay what when on the other.hand I've tried this with my wife and.she doesn't bite okay there also is.research on what happens to employees.when they're under surveillance and it.shows that employees when they're under.surveillance when they know they're.under surveillance are more nervous and.less productive and more conformist and.all the way that's not a thing we want.even when the camera surveillance is of.public places it can undermine that.anonymity most of us probably expect.when we're out in public we don't expect.to be tracked while we're out in public.we don't expect to be followed so as one.chord put it in a case involving one of.these GPS tracking situations I'm going.to read a quote here and try to.synchronize this with with pictures this.is my most ambitious attempt to use.powerpoint gps devices like those use.Annabella's case can reveal as one core.put it cryptid psychiatrist the plastic.surgeon the abortion clinic the eighth.treatment center the strip club the.criminal defense attorney the by the.hour motel the union meeting the mosque.synagogue research gay bar I'm sure I.did it finished before I did right but.anyway you get the point there are lots.of things can be revealed through these.tracking mechanisms and that was the.point of this court that ended up saying.the GPS searching was a Fourth Amendment.search GPS tracking was a Fourth.Amendment search final point to think.about in terms of whether we should be.worried about this is a very amorphous.one admittedly but nonetheless one that.we we probably ought to consider it has.to do as much with First Amendment.values as privacy values okay because.one thing we treasure in this country is.a freedom to associate with people.freedom to express ourselves freedom to.roam for them to define ourselves the.way we want and.this kind of freedom which is relatively.vague admittedly nonetheless has been.important enough that two Supreme Court.justices have remarked how important it.is here's what one justice said I'll.read the entire quote walking and.strolling and wandering has been in part.responsible for giving our people the.feeling of independence and self.confidence the feeling of creativity and.then the quote goes on these amenities.have dignified the right to dissent and.have honored the right to be.nonconformist and the right to defy.submissiveness they have encouraged.lives of high spirits rather than hushed.suffocating silence so that's a quote.from one Supreme Court justice and.here's a quote from another one suppose.that the local police in a particular.jurisdiction were to decide to station a.police car at the entrance to the.parking lots of a well patronized bar.from 5 30 to 7 30 every business day I.would guess that the great majority of.people would say that this is not a.proper police function there would be an.easiness and I think unjustified.justified uneasiness if those have.patronized the bar felt that their names.are being taken down and filed for.future reference this ought not to be a.governmental function when the facts was.extreme as I put them okay those are two.sprinkler justice responding to the.kinds of thing I've been talking about.what's particularly interesting is who.these two justices are okay the first.one not surprisingly was William Douglas.those of you know Supreme Court justices.he was a line of civil rights you'd.expect him to say something like this.okay who was the second Justice William.Rehnquist if there was a justice who was.unfriendly to the Fourth Amendment this.is it okay in the history of the Supreme.Court he's been the Justice most hostile.to the Fourth Amendment and yet he said.what I read you he said to be an.unjustified police function government.function to simply watch people as they.go about their daily business so I think.those are two very powerful statements.in terms of whether surveillance is okay.or not and i gotta stop there sorry.there's more to say Oh what happened to.Abdullah do I want to say that now or.make you wait till next week.um okay I'll tell you one thing he was.innocent okay you totally innocent he.was he was a perfectly upstanding.American citizen he wasn't American.citizen he wasn't illegal immigrant okay.but I'll say more about him next week.because I want to say a little bit more.about search and seizure before we get.into interrogation so in a quick.

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How likely is it that Obama will be able to fill the late Justice Scalia's seat on the Supreme Court before he leaves office?

So, a lot of people have talked about the partisanship of Democrats and Republicans yada, yada, yada—everyone is well aware of that. Let me move away from the question of whether Obama will manage to navigate through the waters of congressional gridlock, just for a moment and provide what I see could potentially be a game changer. Without Justice Scalia, the Court continues. But Chief Justice Roberts from the beginning has talked about wanting to emulate his hero Chief Justice Marshall, who transcended partisanship and got unanimous rulings, becoming the most influential justice in the Court’s history. While we can only speculate at this point, it seems possible that he will make some move to indicate that he wants the Court to fully function, rather have rulings based on 4-4 splits, upholding the lower court’s decision. I really don’t think the other Justices are going to be willing to sit on the sidelines for Obama to leave office, and wait presumably for whoever the next President. Think about this: The next President will be sworn in at the end of January in 2017. And even if they name their nominee on their first day in office, it typically takes on average about three months to nominate and confirm a new Justice. So, the question is will the other Justices and Chief Justice Roberts appeal to country to get someone confirmed? Maybe, because I can’t imagine the Supreme Court being short a Justice all the way until April or May of 2017.

Now Justice Kurian Joseph says no outside intervention needed over supreme Court crisis. If that what was the case that what was the need to address the nation through a press conference?

Holding press conference as a hastyily taken decision and they are regretting it now. How stupid of them. This is the only body which people still trust but 4 judges have ruined it all.

How will the addition of Justice Kavanaugh change the nature of the cases the Supreme Court will choose to hear?

As to the nature of the cases the Court hears, the addition of Justice Kavanaugh will probably change that very little. 4 of the 9 sitting Justices have to vote to grant a writ of certiorari. (vote for the High Court to hear the case) Since Judge Kavanaugh is only one vote, and there are 4 solidly liberal votes, and 4 other solidly conservative, his vote on what to accept on cert will not greatly affect the cases heard. Where his vote will be more crucial, is to break ties between the 4 solidly liberal Justices, and the 4 other solidly conservative Justices in cases they do hear.

If the EXIF data on an image can be modified, how will that information be feasible in a court case?

First, some professional and semi-professional cameras used to include features that would embed a digital signature within the image. That digital signature could later be used to verify that the image was not modified. Canon’s version of this solution was called DVK-E2, but I don’t think it’s being supported anymore. Aside from that, it depends on which particular piece of metadata is of interest, and whether you’re trying to prove or disprove something. Time/date? GPS location? Camera make/model? Specific camera used to capture the image? For time/date, it would likely come down to indirect evidence. Does the photo content match the time/date? Are there other photos in a series of photos that could be used to establish a chain of trust? Is there any other evidence that places the camera at that location to take pictures around that time/date? How exact does the time/date need to be? For GPS location, you could analyze the content of the photo to match the place: the location can’t be Paris if the photo is of a New York landmark (not counting Las Vegas). You could also further analyze the content to verify positions of sun, moon stars, shadows, etc. in relation to the alleged GPS location and time/date. For camera make/model, you could verify how the image data itself is encoded: image compression visual artifacts and filtering , image compression efficiency, and so on. This might not be terribly helpful amongst several cameras from the same manufacturer that might share a lot of characteristics, but could still be ruled out other manufacturers. For identifying the specific camera, consider that most modern-day cameras have 15–50 megapixel sensors so there are bound to be some defective pixels in any sensor (dead, hot or stuck pixels ). In addition, you can look for the presence of sensor noise or dust spots that appear in each photo taken with the same camera. You could also look for optical aberrations that might be unique to the particular lens. The process is akin to the classic firearm forensics of analyzing bullets against the firearm that was allegedly used to shoot it. This is by no means an exhaustive list. Bottom line, there are a lot of techniques and in the end, it comes down to the weight of the overall evidence, just like in old school criminal forensics. Here’s a fun paper on several different approaches and techniques: https://www.cs.dartmouth.edu/farid/downloads/tutorials/digitalimageforensics.pdf

What is the most useful Harvard Business School case for startups? The case doesn't necessarily need to be about startups. It could bring out a core pattern or abstraction that is useful for entrepreneurs.

Calyx & Corolla always stuck with me because of two things: the enormous markups made by everybody along the line in the flower delivery business, and her up-front cost of getting new customers. On reading the case I thought the company was a loser because of the cash it was going through. But class discussion taught me that sometimes it pays to 'buy' customers. I took that message to heart in my own (then new) business.

If you have a court case, should the complainant talk to one of the judges at that court to find out about the plaintiff?

No party to any court case should talk to anyone about the details of that case without legal advice or guidance. No judge will talk to any litigant in any ongoing litigation without the presence of the other party or their attorney. Any information about the case, such as hearing dates, deadlines, Court orders, etc, that a party needs to know, will typically be delivered to each party, or their attorney, by the Court.

What happens to cases the Court heard and that Justice Scalia voted on prior to his death, but for which decisions will not be released until spring?

On those cases where it was 6-3, 7-2, 8-1, and 9-0 then nothing will happen and they will be handed down when the opinions are ready, assuming no one changes their votes. On those cases in which it was 5-4 and Scalia was in the majority one of three possibilities will happen. Either someone changes their vote and it is delivered when an opinion is ready, or it will be announced in a non-precedent setting statement that the lower court decision is upheld by an equally divided Court, or the Court may set the case down for reargument next term.

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