The Fourth Amendment in the Digital Age Symposium

Criminal Law Practitioner Volume 2 Issue 2 Article 13 2015 The Fourth Amendment in the Digital Age Symposium Braxton Marcela American University Washington College of Law Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Computer Law Commons, Criminal Law Commons, Fourth Amendment Commons, and the Internet Law Commons Recommended Citation Marcela, Braxton (2015) "The Fourth Amendment in the Digital Age Symposium," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 13. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/13 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Marcela: The Fourth Amendment in the Digital Age Symposium Criminal Law Practitioner THE FOURTH AMENDMENT IN THE DIGITAL AGE SYMPOSIUM by: Braxton MarcelaI Pane 1I On April 3, 2015, the National Association of Criminal Defense Lawyers and American University Washington College of Law's CriminalLaw Practitionerhosted a symposium entitled "The Fourth Amendment in the Digital Age," which featured various practitioners and policy experts to discuss the growing digital and technological advancements and the impact they will have on the Fourth Amendment protections, national security, and criminal justice. Claudio Grossman, Dean of the American University Washington College of Law, which hosted the event, began by noting that privacy is a right recognized by international covenants and custom. The current President of the National Association of Criminal Defense Lawyers, Theodore Simon, followed stating that the goal of the symposium was to explore how government surveillance programs, digital searches, etc. are impacting the Fourth Amendment in practice, and guide those "on the front lines" of criminal defense. He further stated that "Electronic surveillance and digital searches go to the heart of the Fourth Amendment and fundamental freedoms, including how citizens are investigated, charged, and tried. It directly impacts criminal defenders' work to represent their clients. 1 Braxton Marcela is a rising 2L at American University Washington College of Law and is the incoming Associate Publications Editor for the Criminal Law Practitioner. His primary interest is criminal law, as well as secondary interests in national security law and immigration law. He is originally from North Carolina. The symposium's first panel, entitled "New Developments in Surveillance Technology: How the Government Collects, Searches, Stores, and Shares Information," focused on the technological advances that law enforcement, both state and federal are currently utilizing to investigate crimes and monitor suspects. It also included an in-depth discussion of how the legal system has adapted to new technologies and the implications they have for criminal defense. It was moderated by Jennifer Daskal, an Assistant Professor of Law at AU WCL. Panelists included Catherine Crump, an Assistant Clinical Professor of Law at the University of California at Berkley School of Law and the Associate Director, Samuelson Law, Technology and Public Policy Clinic, also serving as counsel to the American Civil Liberties Union in their challenge to the NSA metadata collection programs; Liza Goltein, Co-Director of the National Security Project, Brennan Center for Justice; Joseph Lorenzo Hall, Chief Technologist, Center for Democracy and Technology; and Eric Winger, Director of Cybersecurity and Privacy Policy for Global Government Affairs at Cisco Systems. Daskal introduced the panel by stating that there has been a "tectonic shift" in how data is collected, stored, and used, and asking Hall to elaborate on the newer technologies the State currently utilizes to investigate and monitor suspects. Hall responded stating that surveillance has ballooned extraordinarily, going Published by Digital Commons @ American University Washington College of Law, 2014 Summer 2015 1 Washington College of Law n3 Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 13 Crirriinal Law Practitioner from being as passive as mere eavesdropping to assertive muscular data collection and storage. Surveillance has moved from being targeted to increasingly bulk-and "shockingly intrusive." Hall even cites an example of a quantum program that can "cut a hole" in a user's computer browser and collect passwords, keystrokes, and other data. He particularly notes that the NSA was using mass metadata collection long before the tech industry caught up to it. Hall cited a main severe that arises from these problems is the amount of false positives, or targeting people that should. not be targeted, data targeting can implicate others who would not otherwise be implicated simply by nature of proximity or "being on the same train." After Hall's overview, the panel began discussing the legal system's adaptation to the mass surveillance technologies. Goltein began by saying there has been a sea change in the law moving in favor of mass surveillance. Most troubling to the panel was the seeming eroding of the traditional "golden rule" that surveillance of a target required reasonable suspicion of criminal activity. This change begins with Section 25 of the United States of America Patriot Act," which allows the government to get a Foreign Intelligence Surveillance Act (FISA) Court order for information on an individual based on relecance to a criminal act. The FISA Court interpreted the statute broadly. Secondly, Section 702 of the FISA Court Amendments Act of 2007 Congress removed requirement of individualized suspicion of wrongdoings for any foreign target overseas and in America. Finally, Executive Order 12333-most expansive of government authority- allows surveil- lance companies to collect foreign intelligence without any judicial involvement. Goltein also asserts that these changes make the distinction between foreign and domestic targets a legal fiction. Particularly, the government assumes if it has no information about a target, it is probably foreign. The government has also utilized backdoor searches, in which they use foreign targets to locate American citizens 115 Stat. 272, §215. 2 154 Cong. Rec. H. 5743, §702. 3 https://digitalcommons.wcl.american.edu/clp/vol2/iss2/13 114 Washington College of Law Sunmer 2015 attached to a foreign target. The NSA used this method over 2,000 times against American citizens. The data ended up being used in local criminal prosecutions and by local government agencies throughout the country. Crump also further elaborated on the surveillance technologies being used on the local level to monitor and investigate suspects. Crump stated there is a "pot of money" available to local police departments to acce (...truncated)