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Orin Kerr
@OrinKerr
, 4 tweets, 2 min read Read on Twitter
In an odd footnote, the CA11 seems to say you have 4th Amendment rights in your "online movements" if you use Tor, but not otherwise. Quick thread. media.ca11.uscourts.gov/opinions/pub/f…
The issue the court was commenting on was not disputed by the parties: The government using an NIT to hack into a person's computer and get data is a "search." And I agree, it is. It is breaking into a person's private machine to get info from inside it. washingtonpost.com/news/volokh-co…
The Court's footnote seems to suggest a different rationale, that it was a search because a person using Tor is trying to hide their browsing information.
But it's not the effort to hide the browsing info that creates 4th Amendment rights. Rather, it's the fact that successfully hiding the IP address in a place not 4A-protected info gave the govt no choice but to get that info from a place that *is* 4A-protected: The device.
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Orin Kerr
@OrinKerr
Ariz Ct. of Appeals: Under the Ariz state constitution, there is no third-party doctrine: The state's police now must get a search warrant to obtain the IP address used by a pseudonymous account on a messaging service. cases.justia.com/arizona/court-… #N
In the case, an undercover agent invited people in an online forum to join an online messaging group to distribute child porn. A person responding by asking to join the group, using the screenname "tabooin520." “tabooin520” then sent child porn to the group. /2
The govt then issued a subpoena to the messaging app provider for the IP address “tabooin520” was using. The IP address revealed tabooin520's internet provider, and a second subpoena, to the internet provider, revealed the house assigned that IP address.
Read 9 tweets
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Orin Kerr
@OrinKerr
ABA adopts tighter bar passage standard: For a law school stay in compliance with accreditation standards, at least 75% of its grads who sat for bar exam must pass within 2 years.
abajournal.com/news/article/c…
It's always hard to get a sense of the actual effect of rules like this, as there are a lot of moving parts, but I would think the effects might include: 1) Intense pressure at some law schools to raise bar passage rates; 2) Pressure on some states to lower bar passage standards;
3) pressure on some schools to limit who takes the bar; 4) pressure on admissions to admit students likely to pass. But these are just guesses, and I haven't been following this development. Stay tuned for other folks' views, as this seems significant.
Read 5 tweets
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Orin Kerr
@OrinKerr
Fascinating (but I think muddled) decision on encryption workarounds -- here, visiting person in jail to get her phone passcode. The court suppressed all the evidence on the phone on 4A, Miranda, *and* 6A grounds. Here's a thread on US v. Maffei. orinkerrblog2.files.wordpress.com/2019/04/u.s.a.… #N
In the case, the feds have a warrant to search suspect's phones but don't know the passcode. They visit her in jail after her initial hearing, say they are there to get the passcode, and she tells it to them. They use it and find evidence on the phone, Q is suppression of it.
Court first rules that it violated the 4A to get her passcode because the warrant didn't say they could get the passcode from her: The warrant said they could use biometrics, but said nothing about getting her to disclose passcodes. Thus all suppressed as beyond the warrant.
Read 9 tweets

Related threads

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Brad Heath
@bradheath
11th Cir.: It's not clear that a police officer holding a 10-year-old bystander at gunpoint violates the child's 4th Amendment rights when he shoots the child in the leg, if in fact the officer was attempting to shoot a nearby dog.
11th Cir.: "With the benefit of hindsight," maybe that could have been handled better. "The firing of a deadly weapon at a dog located close enough to a prone child that the child is struck by a trained officer's errant shot hardly qualifies as conduct we wish to see repeated."
Dissent: AYFKM? "No competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children."
Read 4 tweets
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Shoshana Weissmann, 9th Circuit Judge 🦥
@senatorshoshana
Kids are playing in their yard when a fugitive ends up on their property. Police come over, hold the kids at gunpoint and make them all get down on the ground. The family dog comes out, and an officer tries to shoot it. He misses.
The dog runs underneath the porch. Some time passes. The dog comes back out. The cop tries to shoot it again, misses it, and hits one of the kids in the knee.
BUT GUYS IT'S ALL OK DON'T WORRY

Qualified immunity.

So the police won't be held accountable
media.ca11.uscourts.gov/opinions/pub/f… #CJreform cc @ConLawWarrior
Read 8 tweets
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Gabriel Malor
@gabrielmalor
11th Cir. holds that it was not a clearly established Fourth Amendment violation for a police officer chasing a suspect to accidentally shoot a ten year-old playing in her own yard.

Qualified immunity for the officer. media.ca11.uscourts.gov/opinions/pub/f…
Correction: the ten year-old was a boy, not a girl.
I can't get over this. He accidentally shot the kid while the kid was lying on the ground *eighteen inches* away.

That's not just an accident, that's fuggin' incompetence.
Read 3 tweets
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BookdiggerJim
@goodoldcatchy
60/
In Alabama marijuana possession is generally a Class A misdemenour punishable by a year's prison & $6,000 fine.

In 2016, black people there were 4X as likely as whites to be arrested for misdemenour & felony possession.
L:
drugpossessionlaws.com/alabama/
R:
splcenter.org/report-alabama…
61/
Those arrested & convicted in Alabama for marijuana-related charges are disproportionately black, so collateral consequences fall heavily on that demographic.

Forensic backlogs can leave people merely charged with a minor possession offense in limbo.
splcenter.org/sites/default/…
62/
You can add incidences of racially-motivated police corruption to Alabama's unjust law enforcement system.

These articles say marijuana was planted on black men by cops in Alabama for years, wrongful prosecution pursued.
L:
innocenceproject.org/leaked-documen…
R:
mintpressnews.com/leaked-documen…
Read 26 tweets
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Josh Blackman
@JoshMBlackman
1/ Judge Pryor's statement with respect to denial of rehearing en banc refutes several irrepressible judicial myths media.ca11.uscourts.gov/opinions/pub/f…
2/ There is a "difference between a change in judicial doctrine and a change in law." The law has not changed. What changed is how the courts interpret that law.
3/ Booker was not a "legislative amendment" that changed the statute. Nor was it a "constitutional amendment." It was a judicial decision that did not change the law. "The residual clause was...always invalid." And Booker only held that the requirement was w/o legal effect.
Read 19 tweets
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Josh Blackman
@JoshMBlackman
1/ 11th Circuit En Banc Court splits on application of Terry rule. The majority and dissent also disagree about the appropriate use of originalism in the inferior courts. media.ca11.uscourts.gov/opinions/pub/f…
2/ The defendant argued that court should construe Terry narrowly, based on Justice Scalia's originalist position.
3/ The majority opinion (W. Pryor) contends that "when 'a precedent of [the Supreme] Court has direct application,' we must follow it."
Read 10 tweets

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