November 2, 2016

Must you live off the grid to enjoy Fourth Amendment protections?

Fourth Amendment: Mere privacy expectation or full-fledged property right? Retweet

In this message: Important information about a new amicus brief to defend the 4th Amendment. The case is U.S. v. Graham.

When you win a landmark Supreme Court victory, it’s tempting to think your work is done.

We won a landmark decision with our Antoine Jones amicus brief. We alone argued for a change in how courts understand the Fourth Amendment. The High Court agreed with us and overturned 44 years of precedent. However…

News of this change still hasn’t reached all defense attorneys, especially public defenders.

And it seems like some federal judges are also trying to hold on to the old interpretation. As a reminder, the “modern” Fourth Amendment standard asked if a citizen had a “reasonable expectation of privacy” that was being violated by state action. This standard was established in 1968. But with each new technology that “expectation of privacy” got smaller and smaller until Fourth Amendment protections almost disappeared. We demonstrated, in our Jones brief that…

The Fourth Amendment was always about protecting property rights.

YOU own your person, houses, papers, and effects. And these days, your person is virtual and moves from place to place. Your papers are electronic. Your domicile and office are in constant motion, changing location from day to day or even hour to hour.

  • Many of our constitutionally protected “papers” are now stored on our electronic devices, and can be accessed by us from anywhere we happen to be. These devices are the new technological substitutes for our old filing cabinets and safes.
  • Either you own the data you generate about yourself, including the information your phone company records about your movements, or you’ve lost your privacy. The property right is what makes any expectation of privacy possible. Your electronic “papers” and the electronic data that records your movements are your property, both deserving of Fourth Amendment protection.

That’s why, in January, we asked you, “Can the government track your every movement, even within your home, using cell phone tracking? …especially without a warrant?” That’s the question at stake in the previous brief we filed in this case (in the Appeals Court), and the new brief we want to file now (at the Supreme Court).

The Graham case involves the tracking of cell site location information (CSLI). The issue is that prosecutors want to get around your Fourth Amendment protections. They want to…

  • Use “reasonable suspicion” instead of “probable cause.” That way, they can…
  • Start a fishing expedition. Their goal is to track all movements of a “suspect,” hunting for any tangential evidence, whether or not it has anything to do with the actual crime they’re investigating. And hey…
  • If they’re lucky, maybe their snooping will yield evidence of a crime other than the one they were investigating. After all, a lot of things are illegal these days, and they tracked Graham for a whopping 221 days.

Results have been mixed in the lower courts. We’ve both won and lost. We think this has happened because too many of the arguments have failed to promote the property rights standard we re-established in the Jones case. Everyone has been mired in the ineffective privacy rationale.

Now, Graham’s attorneys are asking the Supreme Court to hear the case. They’re filing a “Petition for Writ of Certiorari.”

We want to file an amicus brief in support of that Petition. In other words, we want to explain why the Supreme Court should hear the merits of the Graham case.

In the Graham case, as well as with several other amicus briefs we’ve filed, including another earlier this year, we’re trying to… develop a consistent appreciation for the Jones property right precedent. We need to reinforce that precedent and…

We need to get the word out to the judges and defense attorneys that property rights are back!

Can you help us fund this brief?

You’ll be pleased to know that Graham’s attorneys reached out to us. This is rare. Usually, we’re the ones making up for the lack of courage, conviction, or strategy in the various arguments being made by the other parties to a case. We try to educate judges and justices about original principles. But the Graham attorneys are welcoming our argument in this instance.

That means, our arguments will likely complement the arguments they’re making. And that should increase the Court’s receptivity to them.

Do you want the Supreme Court to take up the Graham case?
Do you want the Justices to hear the arguments presented above?
Do you want to strengthen and expand the role of the Jones decision?

Then we need your financial help. We’re partnering with the Downsize DC Foundation — using their Zero Aggression Project contribution page, so that your donation can be tax-deductible, if you itemize.

  • We’re seeking at least one donor who will give $500, $1,000, or even $2,000 to help fund this brief.
  • We’re also looking for two people who can contribute $250 or more. Plus,
  • Dozens of new monthly pledgers or donations of other amounts.

With those responses, we’ll be able to submit this brief. Please make your tax-deductible contribution on the Zero Aggression Project form.

Jim Babka, President, Inc.

P.S. We have powerful precedent on our side. As we wrote in our earlier Graham brief to the Fourth Circuit Appeals Court,

In the Riley case, the Supreme Court observed that ‘modern cell phones which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.’ Even the Graham panel recognized that ‘for an increasing portion of our society, [a cell phone] has become essential to full cultural and economic participation.’

Living off the grid shouldn’t be a requirement to enjoy the protection of the Fourth Amendment!

Remember, you can help by making a TAX-DEDUCTIBLE contribution to the Downsize DC Foundation, using the secure, Zero Aggression Project contribution form. There are a number of donation options there.

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