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Utah Bans Police from Searching Digital Data Without a Warrant, Closes Loophole (forbes.com)
306 points by OrgNet 5 months ago | hide | past | web | favorite | 90 comments

It's my opinion that there never should have been a loophole and that the 1970s SCOTUS cases ruled incorrectly about our expectations of privacy for the "third-party doctrine." So this law, in my view, simply restores the 4th amendment protections guaranteed by the US constitution. I'm glad they did it, but as noted in the article, Chief Justice Roberts had to take more complicated positions for Carpenter vs United States, a recent case about cell phone surveillance.

He said cell phone location information "does not fit neatly under existing precedents," but I think the court should just re-evaluate the 1970s cases and come to a place of consistent reasoning about our data, so everything can fit neatly under the protection of the 4th amendment. When we use products or buy things, we expect our data to be private. I don't expect my banker to give away my personal financial information. Nor do I expect my cell phone carrier to share my call history. We do have an expectation of privacy, and the 1970s rulings are hugely flawed, especially in light of today's digital world.

Yeah we've passed the point where there is so much third party involvement / data that the standard read strictly pretty much eliminates the 4th amendment. ... any privacy you might hope to have.

As an individual the only option is to withdraw from society as a whole and become a mountain man, that seems unreasonable.

Yeah, the third-party doctrine is absolutely disastrous in the modern era.

> In a concession to law enforcement, the act will let police obtain location-tracking information or subscriber data without a warrant if there’s an “imminent risk” of death, serious physical injury, sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking.

A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well.

I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse". (If it were abuse, then it would already be covered under the exemption for sexual abuse!)

Livestreamed sexual exploitation was undoubtedly included as a way to extend law enforcement a way to act on "distribution of an intimate image" as defined in 76-5b-203.

Abuse and exploitation do, in fact, have different legal definitions in Utah.

Livestreaming a sexual act without the consent of the 2nd party wouldn't be covered under sexual abuse, as the party is consenting to the sexual act. But, would be covered as exploitation, if the party doesn't consent to the distribution of their image [2].

I'm a huge critic of the church's influence on our legislature, but it's not an extension to porn and/or prostitution. If anything, it's a strengthening of privacy.

[Edit] spelling, sources, and clarification [1] https://le.utah.gov/xcode/Title76/Chapter5/76-5-S406.html [2] https://le.utah.gov/xcode/Title76/Chapter5B/C76-5b-P2_180001...

For people who aren't familiar with "the church" mentioned above, it is the Church of Jesus Christ of Latter-day Saints AKA LDS Church AKA the Mormon Church[1].

In Utah the Church has a large (usually indirect) influence over politics. They don't often pick sides, but with some social issues like Gay marriage and legalized Cannabis they have specifically reached out to members encouraging them to vote a certain way.

[1] https://www.lds.org/

> (usually indirect)

This can be disputed.

Are you saying you think it's usually direct, or are you saying that you don't think they have an influence?

Well, a couple years back an internal PPT and videos from "the church" was leaked that documented how the church considered a legislator from a state in the northwest "in their pocket".

The legislator wasn't even coerced - he would just regularly report back to church leaders and ask for guidance on which way he should lean on specific issues.

If the church has that kind of direct influence out of state, it stands to reason they at least have a similar level in Utah where most of the legislature and politicians are Mormon.

Interesting, I hadn't heard that. Do you remember where you heard about it? It sounds like that legislator needs to be voted out of office ASAP.

It was from MormonLeaks, I'm sure. Look through their history. It was at the same time as the "bubble" PPT that listed the church's largest "adversaries" or "problems" and John Dehlin was one of the bubbles LOL.

It's Utah. The state is basically run by the Mormon church so religion informs what crime are considered serious. Of course the flip-side is that most "progressive" states (with a few possible exceptions I can think of) would almost certainly bent over backwards to avoid curtailing the power of the police to search the documentation of people's private lives like this. Everything's a tradeoff.

I think Utah is a bit more complex than that. As you note the LDS Church holds significant sway in the state, however like much of the Mountain West of the USA, the actual popular politics feature a combination of libertarian and socialist tensions rather than simple social conservatism.

Salt Lake City for example was the first major US city I encountered the audible cross-walk indicators for the visually impaired. And not just here and there, but all over the city. Salt Lake City has had popular gay and lesbian mayors and a vibrant and resilient collection of various sub-cultures that may not be desirable to the LDS Church but persist nonetheless.

I would hesitate to call the current mayor popular. She's not seeking a second term for a reason. I'd also question how strong the socialist tensions are. There's definitely tensions between moderate old guard pro-regulation republicans and libertarians with a small vocal minority of socialists.

I may have conflated the popular Mayor Rocky Anderson's human rights activism for gay people along with the current lesbian Mayor Jackie Biskupski with whom I am only superficially knowledgeable and as you point out my phrasing was incorrect. I haven't lived in the city for a decade and only recently visited for a conference, but found it the same lovely corner of the country with a less oppressive culture than when I lived there.

Mostly I was just trying to point out that while the media and popular culture reduces parts of the world to simple caricatures, usually the particulars are more complex and nuanced.

> A fairly reasonable exception which is then randomly extended to also cover prostitution and porn. Oh well.

Where does it say this?

>sexual abuse, livestreamed sexual exploitation, kidnapping, or human trafficking.

It doesn't take much effort to make the porn and prostitution peg fit into that hole.

I don’t think you’re correct. It would be fairly easy for a defense lawyer to argue that such a stretch would be inadmissible.

The current state of US practice is that most prostitution is called "human trafficking" when it's investigated or prosecuted. Cases investigated under the headline of "trafficking" generally do not involve coercion (in reality) or even allege it (in court). You can find a lot of prostitute-sympathetic coverage making fun of prosecutors for charging women with "trafficking" themselves.

Thus, we can say that the "human trafficking" exemption is really a prostitution exemption, and not what it sounds like.

I dislike the use of the term "trafficking" in this context. We have a perfectly good word for coercing someone to perform labor: slavery. We have a perfectly good phrase for coercing someone to have sex: sexual assault.

I don't think slavery, sex slavery, or sexual assault are good reasons for removing safe harbor from sites that host user generated content. Instead, such sites have been, and could continue to be valuable resources for law enforcement.

Heck, Reason is running a story right now about a group of women suing Harvey Weinstein for "sex trafficking", with the theory apparently being that he availed himself of their services when they trafficked themselves: https://reason.com/2019/04/19/harvey-weinstein-is-not-a-sex-...

> Sexual assault and rape are bad enough on their own, of course. So why the need to force these cases into a framework that doesn't fit?

> Because the sex trafficking framework allows for a lot more prosecutorial possibilities.

> Plus, sex trafficking is such a buzzword that cases employing it are guaranteed to get more attention.

Yeah, but that happens after your door's been kicked down. We see this all the time with city and state $bad_thing "task forces". The many of the cases they bring evaporate in court if they make it that far but the damage is done.

Thing about the US courts: until that happens and precedent is established, there's no "correct". Both are equally plausible based on how past laws have been expanded past some people's ideas of reasonable. It's the whole "I can't define pornography, but I know it when I see it" concept.

They’re really not.

“Smelling marijuana” is easy to push with plausible deniability.

Claiming there is imminent risk of sexual abuse is really difficult to justify on the fly. It may happen, but that’s going to be a tough edge case for cops to abuse.

yes but "sexual exploitation". If prostitution isn't legal in the state, all prostitution is sexual exploitation.

Key missing word: Live-streamed

Is there any post-audit for appropriateness? It doesn’t even have to be for every request.

In my jurisdiction, the coroner gets called for every 10th expected death in a nursing home just to ensure some accountability.

Or is it a free for all with sealed records unless they get presented as evidence?

> I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation" when that "exploitation" would not qualify as "sexual abuse

To identify and locate underage camwhores (who are presumed to be put up to the task).

Being forced to simply flirt with men all day constitutes exploitation, not abuse.

The nature of livestreams mean there is little to go on unless they're broadcasting, hence the exception.

I do have to question why they needed a specific emergency exemption for "livestreamed sexual exploitation"

My guess is to prevent internet-based sex-tourism: watching stuff that's illegal where you are, streamed from somewhere else, like another country or continent.

My guess is they want to be able to figure out where the party is.

This is a good step in the right direction. What I would ultimately like to see is mandatory, impossible to shut off, police wide body cameras. There is no reason in this day and age to not have it.

Well there is the use case of the PO exercising his or her judgement in a situation where there may technically be a violation, e.g. carrying an open bottle of beer. Today, a PO can simply require the perpetrator to discard the beer and then both parties move on.

If we have cameras in that situation, the PO will have no choice but to issue a summons to the person and then potentially have to show up in court if the person requests it.

Is that the best use of our police officers and the courts time? I think your intention is to provide citizens protection against police abuse of our rights but I think that the situation is more complex and getting the right mix of tech and humanity in police practices requires better training and education of both the police and the citizenry.

If this became a rampant issue, maybe it would be time to rethink the law? Discretion allows abuse. Laws that are not applied uniformly run counter to the notion of "Rule of Law".

This happens quite a bit with underage drinking. Cop catches some kids who are not quite 21 with beer and instead of fining every kid up to $1,000 and suspending their license (which is now on their record), he makes them ditch the beer and move on. Rethinking the law means we’d decide it’s ok for all teens to drink. Sometimes the laws are solid, but there are shades of gray in terms of how to apply them.

> Cop catches some kids who are not quite 21 with beer and instead of fining every kid up to $1,000 and suspending their license (which is now on their record), he makes them ditch the beer and move on.

...unless they're black?

There's no reason to give cops this discretion, it just leads to unfair policing practices. Better to have police enforce all laws and think hard about what we want those laws to be.

Discretion can certainly be abused, but systems of rigid rules can only realistically approximate justice. Human discretion will always be important to avoid injustice.

I agree, but I'd rather see this discretion at the judicial level where there is a framework under which it operates and judges with presumably more moral, legal, and ethical training.

If a prosecution is legally justified, a court can’t do anything about it. At best, you could hope for jury nullification (but the rules of evidence might keep the jury from ever learning the morally-exculpatory evidence), or failing that, lenient sentencing.

> lenient sentencing

This is what I was alluding to. Historically judges have had a lot of leeway when it comes to sentencing, and, having heard all the details of the case, they are in the best position to decide the defendant's fate. (For what it's worth, I disagree with mandatory minimum sentencing laws.)

I’d much rather a police officer be able to make the call to not pursue something than regularly have people stand trial for trifles. If you don’t give the discretion to cops or prosecutors, that is the alternative.

Human discretion has its place in the courts, not at the roadside.

Do you really want the police to enforce every single, e.g. traffic, law all the time? I don’t think that would be practical.

If they did, it would lead to the political will to change the law. Because they don't, we are stuck with the non-uniform application of the law which causes tension in communities. Justice is not dispensed by police, it is frankly not their job. Pointing out that we'd have a lot more people getting ticketed just shows how broken the system actually is in its current form.

> Cop catches some kids who are not quite 21 with beer and instead of fining every kid up to $1,000 and suspending their license (which is now on their record), he makes them ditch the beer and move on. Rethinking the law means we’d decide it’s ok for all teens to drink.

Doesn't overlooking the beer also mean we've decided it's ok for teens to drink? What is the difference you see?

I'm quite sympathetic to your argument, although having been a teenager (age 19) that got caught with beer and had a cop let me off (he could clearly see that we were trying to be responsible, and were not causing trouble) I think there is value in not being a total hard ass while still not blanket condoning stuff. That said, in this case I absolutely agree that alcohol should not be restricted to anybody 18 and over. If we have a point where you are "an adult" then you should be a free person at that point.

So it really comes down to philosophically purity vs. pragmatism. I'm naturally drawn toward the former, but as I've gotten older I see more value in the latter, even tho intellectual it bothers me.

I think the difference is in assessing a situation - is it always ok for all teens to drink? Or is it more about assessing whether to sometimes scare them a little by giving them a talking to and reminding them it’s not legal - and other times (if they endanger lives or get caught multiple times) enforcing the penalties as appropriate. Much like speeding or running a stop sign - sometime just getting pulled over is enough to remind you to slow down.

If they endanger lives, etc, we already have laws against that. If people regularly speed on a road the local government should consider raising the limit or installing speed bumps. If we have a problem with a law we should fix it rather than avoid enforcement.

I don’t see this being an issue. Most (all?) police cruisers already have dash cams which almost certainly routinely capture footage of people speeding and breaking various other traffic laws which the police overlook, but no one is going back to review that footage and cite them.

Presumably the footage is archived and only reviewed for disputes, court, etc.

If we suddenly have a rash of police under enforcing, is that really a problem? Body cameras aren’t there to ensure police enforce the law, they’re there because power corrupts and absolute power corrupts absolutely.

I would love for the police to enforce the law strictly and uniformly. If the laws are bad, then we will change them.

True, too often this discretion is only exercised for friends, relatives, and the powerful. Occasionally it gets extended to people who remind the officer of those people, because they fit the preconceptions or remind the officer of their own youth or family.


I agree with you in theory, but in practice I wouldn't be so sure. There are plenty of people that suffer and have their lives ruined because they are the first victims of a bad law. The legislative process moves very slowly, sometimes it takes decades (look at Cannabis laws for example).

The solution to this would be to stop the criminalization of victimless actions - which carrying an open bottle of beer is.

Under enforcement based on individual judgement easily introduces racist bias

I agree with your point tho, bureaucracy has trouble thinking about edge cases, it's hard to create a complete spec of things like not requiring bringing someone in for an open beer if they aren't clearly drunk

> I agree with your point tho, bureaucracy has trouble thinking about edge cases, it's hard to create a complete spec of things like not requiring bringing someone in for an open beer if they aren't clearly drunk.

It is very much the job of the courts to interpret the law with respect to those edge cases and their judgements can provide guidance to politicians about how to more narrowly define the law. This is how things are supposed to work _in theory_.

Even on the optimal path, there's a long lag and (potentially) a bunch of ruined lives between "We think we wrote a law that appropriately covers all the edge cases" and "Oh, hey, this court decided this edge case is covered this way". That lag can be helped by giving the bureaucracy enforcers a way to use common sense to bypass the bureaucracy.

I agree, but ultimately society has weighed the trade-off and moved in favor of the ruining of some lives for the wheels of justice to grind forward. That is why society tends to reify martyrs imo. We have countless examples in history. For things to change people suffer and we elevate their suffering to some third party that can recognize its injustice. Peaceful protests are exemplars of this notion.

Aren't US cops afforded any personal input? I've been stopped in the UK for something I probably should have been arrested for, but the cop said he was just going to let me go because I was nice to him ¯\_(ツ)_/¯

I've worked with a few police departments in a previous life. For the last few years I worked with the bigger dept they all wore cameras for their entire shift. They still let people go for small amounts of weed, or odd drinking violations (open intox usually) even though it's still illegal here.

They only review the videos if there's an incident or complaint. So it's not like there's someone watching 40 x 8 hour videos every day.

/this is a smaller rural area in the midwest US, so ymmv but these officers do use discretion and the higher ups don't care if it's nothing big. In the Chief's words, "we were all young and stupid at some point."

> They only review the videos if there's an incident or complaint. So it's not like there's someone watching 40 x 8 hour videos every day.

Right now there isn't, but some day, a computer might be able to do it.

Then you would write a law.

Why would they have no choice? Where are people getting this idea that an officer HAS to do something when a law is broken? If that was true, they would be in trouble all the time for driving down the road and not stopping speeders, or getting in trouble for not reporting things other POs have done that is illegal. A police officers discretion in executing the law is an enshrined privilege of being an officer and a camera isn't going to change that. Nobody will ever even be looking at those videos if nothing is reported.

I like the idea of mandatory body cams, but obviously they need to be able to turn it off or remove it for things like restroom breaks.

Instead, there should be extremely strong disincentives (such as being fired, barred from working in law enforcement, jail time, etc) for an officer to turn off their body cam when interacting with the public.

Citizens should also be able to know whether the camera is on (blinking red light etc) and be able to report instances where it was not.

I've had a thought for a while, that if a cop can produce their body cam footage, then they were acting as a cop. If they cannot, then they were acting as a private citizen (and their actions must be judged as though any other private citizen had done them). It seems sufficient to me, but I'd love to hear peoples' ideas on how it would be abused. I'm guessing it falls apart somewhere around how evidence is judged to be admissible (cops actually have tighter rules than private citizens?), but I really don't know.

That's an interesting idea, but I'm not sure how it would work in practice. How much police abuse goes unpunished due to legal protections afforded to police, vs. police departments and prosecutors protecting each other?

I believe there should be a special prosecutor specifically for police. This would remove the conflict of interest between prosecutors and the officers they rely on to work with them to do their jobs.

First, police that break the law actually need to see real punishment. What is the point of body camera footage if they can get away with murdering people on camera anyway?

Why first? It seems like more transparency is a step towards being held accountable.

More transparency isn't a guarantee of justice. Look at the cases of Eric Garner and Danny Shaver. Their murders were recorded on camera and both responsible officers walk free today.

I didn't say it was a guarantee, I said it's a step.

I think the other posters are implying it's not a step. The public is currently aware to how police abuse their power and walk free. The situation is like a fox guarding the hen house. The farmer being "justice" doesn't seem to care when the fox takes a hen whenever it happens.

I'd rather the camera always record and make the "off" button a "private" button that encrypts the footage (but not metadata) when pressed. If the "private" footage is relevant to something police can get a warrant for a specific time range.

Don't need to turn it off for restroom breaks or for anything while they're on-duty because that off-switch will be abused.

And realistically the footage that's of interest isn't going to be those personal moments (or overhearing a call with the officer's family, say) it's the ones where the officer is engaging with a member of the public. And maybe limit viewing access to in-person, by court order, or to credentialed journalists or something.

Sorry, no. I'm 100% for more accountability from the police, but cops are people too and they deserve privacy in those situations.

"footage that's of interest isn't going to be those personal moments" is basically the "nothing to hide" argument against privacy, which I reject.

I mean, you could just cover the camera right? There's always a low tech solution for these things.

If anything, that's an argument for legal rather than technical enforcement. If you can cover the camera or take it off, why not just allow disabling it temporarily? Maybe put a time limit on how long it can be disabled.

>There is no reason in this day and age to not have it.

Sure there is, there are enormous privacy concerns with how police body cameras can be used, and barely any of the departments which have adopted them have reasonable policies for governing that. What about interviewing vulnerable victims? How do you handle FOI requests? What about the departments that want to incorporate facial recognition into their body camera program? Would you like the police to have a database of your movements, or the political events you attend? None of this even addresses the fact that these programs have also largely failed to provide the transparency and accountability they promised. I’m not arguing for one side or the other, but to claim there are no reasons against them is dismissive and ignorant.

We definitely need laws regulating facial recognition (both for the government, and companies), but police body cameras make the public safer because they might think twice about shooting you if they know that they are being recorded. But of course we also need to make them accountable for their wrongdoings otherwise the cameras won't help much.

Cops use public restrooms. There’s one reason.

I think cops should always have a light on when they are recording; that provides check for people to know when they are or are not being recorded.

They should have a filled red circle or red LED showing when recording, as per the convention, plus a filled blue circle or steady blue LED on when they're not, while low battery or another inoperability fault should show a blue half circle or blinking blue light.

When recording is activated, a pure 1-second tone should sound, with an audible voice indicator "bodycam number ### recording" with a timestamp and location. When recording is deactivated, a 1-second series of short chirps , with an audible voice indicator "bodycam number ### deactivating in 30 seconds, 15 seconds, 10, 9, 8, 7, 6, 5, 4, 3, 2, 1, off".

That way, if a cop is turning off the camera at an inappropriate time, someone else can start recording before it cuts off, or the cop can cancel the deactivation without interrupting the recording, and if a suspect hears or sees all cops turning off their cameras at once, they might have a possible defense for resisting arrest. Furthermore, the recording of one cop's camera would be able to show if another cop's camera was on or off.

Ultrasonic tones outside the range of human hearing could encode "bodycam ### is recording" or "bodycam ### is not recording" or "bodycam ### case has been opened", so that any available audio recording without a high-frequency filter could decode it enough for a lawyer to request preservation of evidence from that specific camera and then later get the full video.

These are good UX suggestions.

I like body cams, video of all interactions with police (compare to the FBI refusing to record interviews because they believe handwritten notes are better), and similar ideas. But, at least with body cams, there are some questions with the point of view they end up presenting: https://insight.kellogg.northwestern.edu/article/body-cams-i... .

>But, at least with body cams, there are some questions with the point of view they end up presenting: https://insight.kellogg.northwestern.edu/article/body-cams-i.... .

Still a lot less questions than officer testimony.

The citizenry should make it policy to assume police are lying about any interaction where they are not recording.

If you're ever on a jury, reject police testimony as a basis for determining guilt!


If placed over the bodycam, sure. There should be harsh penalties for officers who purposely obstruct the camera while actively on duty (I don't count a toilet break as "actively" on duty, so its ok to obstruct it while on a break, but there should be penalties for doing "police work" with the camera obstructed).

I don't think you add to this conversation. No I do not want to ban duct tape. But I still want a camera that is not possible for the officer to shut off without some procedure like radio in to dispatch and saying "all clear I am about to go take a pee can I get my camera turned off for a moment?". There is no need reason in this day and age for them to not be accountable. Yes an officer could still remove the camera, pick up a rock and smash it and probably take his tazer to it and just fry or many other ways I am suret but all that would have to be explained. Maybe they can explain it sometimes but it makes it harder.

I'm probably reading this wrong, but it sounds like police would be barred from e.g. looking at a public FB profile. That would go way to far IMHO. The police should be able to view simple public information.

In my opinion (and hopefully, this is what the law means) the warrant should be needed whenever the police need to compel a third party to hand over information. So, viewing a public FB profile is okay, but demanding FB to show the private profile would require a warrant.

Looks like section 2... on page 5 of the PDF it lists some warrant exclusions:

    (v) if the owner has voluntarily and publicly disclosed the location information[.]; or
    (vi) from the remote computing service provider if the remote computing service provider voluntarily discloses the location information...

Good job, Utah! Let's hope that more states follow their lead.

How does this close a loophole when its merely the first of 50+ autonomous jurisdictions in the US to do it

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