Re: Know Your Rights!

it's the law ...
choose sides carefully

On Jun 28, 8:02 pm, Travis <baconl...@gmail.com> wrote:
>  https://www.eff.org/wp/know-your-rights****
>
> ** **
> Know Your Rights! <https://www.eff.org/wp/know-your-rights>****
>
> [image:https://www.eff.org/files/know-your-rights-privacy.png]By Hanni
> Fakhoury, EFF Staff Attorney
> June 2011****
>
> Know Your Rights
> Whitepaper<https://www.eff.org/files/EFF_Know_Your_Rights_2011.pdf>(pdf)
> EFF Police Tips <https://www.eff.org/files/EFF_Police_Tips_2011.pdf> (pdf)**
> **
>
> Your computer, your phone, and your other digital devices hold vast amounts
> of personal information about you and your family. This is sensitive data
> that's worth protecting from prying eyes - including those of the
> government.****
>
> The Fourth Amendment to the Constitution protects you from unreasonable
> government searches and seizures, and this protection extends to your
> computer and portable devices. But how does this work in the real world?
> What should you do if the police or other law enforcement officers show up
> at your door and want to search your computer?****
>
> EFF has designed this guide to help you understand your rights if officers
> try to search the data stored on your computer or portable electronic
> device, or seize it for further examination somewhere else.****
>
> Because anything you say can be used against you in a criminal or civil
> case, before speaking to any law enforcement official, you should consult
> with an attorney.****
>
> *Q:*
>
> *Can the police enter my home to search my computer or portable device, like
> a laptop or cell phone?*****
>
> *A:*
>
> *No,* in most instances, unless they have a warrant. But there are two major
> exceptions: (1) you consent to the
> search;1<https://www.eff.org/wp/know-your-rights#footnote1_emzw9bk>or
> (2) the police have probable cause to believe there is incriminating
> evidence on the computer that is under immediate threat of
> destruction.2<https://www.eff.org/wp/know-your-rights#footnote2_pcczjch>
> ****
>
> ** **
>
> *Q:*
>
> *What if the police have a search warrant to enter my home, but not to
> search my computer? Can they search it then?*****
>
> *A:*
>
> *No,* typically, because a search warrant only allows the police to search
> the area or items described in the
> warrant.3<https://www.eff.org/wp/know-your-rights#footnote3_qfsxppw>But
> if the warrant authorizes the police to search for evidence of a
> particular crime, and such evidence is likely to be found on your computer,
> some courts have allowed the police to search the computer without a
> warrant.4 <https://www.eff.org/wp/know-your-rights#footnote4_ki7r7dp>Additionally,
> while the police are searching your home, if they observe
> something in plain view on the computer that is suspicious or incriminating,
> they may take it for further examination and can rely on their observations
> to later get a search
> warrant.5<https://www.eff.org/wp/know-your-rights#footnote5_8wunwrg>And
> of course, if you consent, any search of your computer is permissible.
> ****
>
> ** **
>
> *Q:*
>
> *Can my roommate/guest/spouse/partner allow the police access to my
> computer?*****
>
> *A:*
>
> *Maybe.* A third party can consent to a search as long as the officers
> reasonably believe the third person has control over the thing to be
> searched.6 <https://www.eff.org/wp/know-your-rights#footnote6_ny3xgzh>However,
> the police cannot search if one person with control (for example a
> spouse) consents, but another individual (the other spouse) with control
> does not.7 <https://www.eff.org/wp/know-your-rights#footnote7_wdnik6q> One
> court, however, has said that this rule applies only to a residence, and not
> personal property, such as a hard drive placed into someone else's computer.
> 8 <https://www.eff.org/wp/know-your-rights#footnote8_b305n7f>****
>
> ** **
>
> *Q:*
>
> *What if the police want to search my computer, but I'm not the subject of
> their investigation?*****
>
> *A:*
>
> It typically does not matter whether the police are investigating you, or
> think there is evidence they want to use against someone else located on
> your computer. If they have a warrant, you consent to the search, or they
> think there is something incriminating on your computer that may be
> immediately destroyed, the police can search it. Regardless of whether
> you're the subject of an investigation, you can always seek the assistance
> of a lawyer.****
>
> ** **
>
> *Q:*
>
> *Can I see the warrant?*****
>
> *A:*
>
> *Yes.* The police must take the warrant with them when executing it and give
> you a copy of it.9<https://www.eff.org/wp/know-your-rights#footnote9_eud14wi>They
> must also knock and announce their entry before entering your home
> 10 <https://www.eff.org/wp/know-your-rights#footnote10_nnx3oth> and must
> serve the warrant during the day in most
> circumstances.11<https://www.eff.org/wp/know-your-rights#footnote11_59lcttg>
> ****
>
> ** **
>
> *Q:*
>
> *Can the police take my computer with them and search it somewhere else?****
> *
>
> *A:*
>
> *Yes.* As long as the police have a warrant, they can seize the computer and
> take it somewhere else to search it more thoroughly. As part of that
> inspection, the police may make a copy of media or other files stored on
> your computer.12<https://www.eff.org/wp/know-your-rights#footnote12_ppsukui>
> ****
>
> ** **
>
> *Q:*
>
> *Do I have to cooperate with them when they are searching?*****
>
> *A:*
>
> *No,* you do not have to help the police conduct the search. But *you should
> not physically interfere with them, obstruct the search, or try to destroy
> evidence*, since that can lead to your arrest. This is true even if the
> police don't have a warrant and you do not consent to the search, but the
> police insist on searching anyway. In that instance, do not interfere but
> write down the names and badge numbers of the officers and immediately call
> a lawyer.****
>
> ** **
>
> *Q:*
>
> *Do I have to answer their questions while they are searching my home
> without a warrant?*****
>
> *A:*
>
> *No,* you do not have to answer any questions. In fact, because anything you
> say can be used against you and other individuals, it is best to say nothing
> at all until you have a chance to talk to a lawyer. However, if you do
> decide to answer questions, be sure to tell the truth. It is a crime to lie
> to a police officer and you may find yourself in more trouble for lying to
> law enforcement than for whatever it was they wanted on your
> computer.13<https://www.eff.org/wp/know-your-rights#footnote13_wt70woy>
> ****
>
> ** **
>
> *Q:*
>
> *If the police ask for my encryption keys or passwords, do I have to turn
> them over?*****
>
> *A:*
>
> *No.* The police can't force you to divulge anything. However, a judge or a
> grand jury may be able to. The Fifth Amendment protects you from being
> forced to give the government self-incriminating testimony. If turning over
> an encryption key or password triggers this right, not even a court can
> force you to divulge the information. But whether that right is triggered is
> a difficult question to answer. If turning over an encryption key or
> password will reveal to the government information it does not have (such as
> demonstrating that you have control over files on a computer), there is a
> strong argument that the Fifth Amendment protects
> you.14<https://www.eff.org/wp/know-your-rights#footnote14_cnawh8n>If,
> however, turning over passwords and encryption keys will not
> incriminate
> you, then the Fifth Amendment does not protect you. Moreover, even if you
> have a Fifth Amendment right that protects your encryption keys or
> passwords, a grand jury or judge may still order you to disclose your data
> in an unencrypted format under certain
> circumstances.15<https://www.eff.org/wp/know-your-rights#footnote15_j6zcnpb>If
> you find yourself in a situation where the police are demanding that
> you
> turn over encryption keys or passwords, let EFF know.****
>
> ** **
>
> *Q:*
>
> *If my computer is taken and searched, can I get it back?*****
>
> *A:*
>
> *Perhaps.* If your computer was illegally seized, then you can file a motion
> with the court to have the property
> returned.16<https://www.eff.org/wp/know-your-rights#footnote16_s17p0zg>If
> the police believe that evidence of a crime has been found on your
> computer (such as "digital contraband" like pirated music and movies, or
> digital images of child pornography), the police can keep the computer as
> evidence. They may also attempt to make you forfeit the computer, but you
> can challenge that in
> court.17<https://www.eff.org/wp/know-your-rights#footnote17_b3aqgg6>
> ****
>
> ** **
>
> *Q:*
>
> *What about my work computer?*****
>
> *A:*
>
> *It depends.* Generally, you have some Fourth Amendment protection in your
> office or workspace.18<https://www.eff.org/wp/know-your-rights#footnote18_wa1r13h>This
> means the police need a warrant to search your office and work
> computer
> unless one of the exceptions described above applies. But the extent of
> Fourth Amendment protection depends on the physical details of your work
> environment, as well as any employer policies. For example, the police will
> have difficulty justifying a warrantless search of a private office with
> doors and a lock and a private computer that you have exclusive access to.
> On the other hand, if you share a computer with other co-workers, you will
> have a weaker expectation of privacy in that computer, and thus less Fourth
> Amendment protection.19<https://www.eff.org/wp/know-your-rights#footnote19_5x0bllk>However,
> be aware that your employer can consent to a police request to
> search an office or
> workspace.20<https://www.eff.org/wp/know-your-rights#footnote20_ztpjpme>Moreover,
> if you work for a public entity or government agency, no warrant
> is required to search your computer or office as long as the search is for a
> non-investigative, work-related
> matter.21<https://www.eff.org/wp/know-your-rights#footnote21_dx11c1e>
> ****
>
> ** **
>
> *Q:*
>
> *I've been arrested. Can the police search my cell phone without a warrant?*
> ****
>
> *A:*
>
> *Maybe.* After a person has been arrested, the police generally may search
> the items on her person and in her pockets, as well as anything within her
> immediate control.22<https://www.eff.org/wp/know-your-rights#footnote22_79aa8ko>This
> means that the police can physically take your cell phone and anything
> else in your pockets. Some courts go one step further and allow the police
> to search the *contents* of your cell phone, like text messages, call logs,
> emails, and other data stored on your phone, without a
> warrant.23<https://www.eff.org/wp/know-your-rights#footnote23_4ysx44k>Other
> courts disagree, and require the police to seek a warrant.
> 24 <https://www.eff.org/wp/know-your-rights#footnote24_n2u3eoi> It depends
> on the circumstances and where you live.****
>
> ** **
>
> *Q:*
>
> *The police pulled me over while I was driving. Can they search my cell
> phone?*****
>
> *A:*
>
> *Maybe.* If the police believe there is probably evidence of a crime in your
> car, they may search areas within a driver or passenger's reach where they
> believe they might find it - like the glove box, center console, and other
> "containers."25
> <https://www.eff.org/wp/know-your-rights#footnote25_r71cozc>Some
> courts have found cell phones to be "containers" that police may
> search
> without a warrant.26<https://www.eff.org/wp/know-your-rights#footnote26_my4ok8r>
> ****
>
> ** **
>
> *Q:*
>
> *Can the police search my computer or portable devices at the border without
> a warrant?*****
>
> *A:*
>
> *Yes.* So far, courts have ruled that almost any search at the border is
> "reasonable" - so government agents don't need to get a warrant. This means
> that officials can inspect your computer or electronic equipment, even if
> they have no reason to suspect there is anything illegal on
> it.27<https://www.eff.org/wp/know-your-rights#footnote27_g1k5iu4>An
> international airport may be considered the functional equivalent of a
> border, even if it is many miles from the actual
> border.28<https://www.eff.org/wp/know-your-rights#footnote28_d98ym08>
> ****
>
> ** **
>
> *Q:*
>
> *Can the police take my electronic device away from the border or airport
> for further examination without a warrant?*****
>
> *A:*
>
> At least one federal court has said *yes,* they can send it elsewhere for
> further inspection if
> necessary.29<https://www.eff.org/wp/know-your-rights#footnote29_a8ligkg>Even
> though you may be permitted to enter the country, your computer or
> portable device may not be.****
>
> *Want to test your new knowledge?*
> Take EFF's Know Your Digital Rights
> Quiz!<https://www.eff.org/pages/know-your-digital-rights-quiz>
> ****
>
> *Need an easy way to remember your rights?*
> We have a handy one-page
> guide<https://www.eff.org/files/EFF_Police_Tips_2011.pdf>to help you
> talk to police if they come knocking. Print for your server room
> or workstation, or save it to your desktop for easy reference! ****
>
> *Want to learn more about how to protect yourself from unreasonable
> government snooping on your computer or portable electronic devices?*****
>
> Then be sure to check out EFF's Surveillance Self-Defense
> Guide!<https://ssd.eff.org/>
> ****
>
> **1.     **1. <https://www.eff.org/wp/know-your-rights#footnoteref1_emzw9bk>
> *Schneckloth v. Bustamonte*, 412 U.S. 218, 219 (1973); *United States v.
> Vanvilet*, 542 F.3d 259 (1st Cir. 2008).****
>
> **2.     **2. <https://www.eff.org/wp/know-your-rights#footnoteref2_pcczjch>
> *Ker v. California*, 374 U.S. 23 (1963); *see also United States v.
> Vallimont*, 378 Fed.Appx. 972 (11th Cir. 2010) (unpublished); *United States
> v. Smith*, 2010 WL 1949364 (9th Cir. 2010) (unpublished).****
>
> **3.     **3. <https://www.eff.org/wp/know-your-rights#footnoteref3_qfsxppw>
> *See Maryland v. Garrison*, 480 U.S. 79, 84-85 (1987) (citing cases).****
>
> **4.     **4. <https://www.eff.org/wp/know-your-rights#footnoteref4_ki7r7dp>
> *See e.g., United States v. Mann*, 592 F.3d 779 (7th Cir. 2010); *see also
> Brown v. City of Fort Wayne*, 752 F.Supp.2d 925 (N.D. Ind. 2010).****
>
> **5.     **5. <https://www.eff.org/wp/know-your-rights#footnoteref5_8wunwrg>
> *Horton v. California*, 496 U.S. 128 (1990); *see also United States v.
> Walser*, 275 F.3d 981 (10th Cir. 2001); *United States v. Carey*, 172 F.3d
> 1268 (10th Cir. 1999).****
>
> **6.     **6. <https://www.eff.org/wp/know-your-rights#footnoteref6_ny3xgzh>
> *Illinois v. Rodriguez*, 497 U.S. 177 (1990); *United States v. Stabile*,
> 633 F.3d 219 (3d Cir. 2011); *United States v. Andrus*, 483 F.3d 711 (10th
> Cir. 2007).****
>
> **7.     **7. <https://www.eff.org/wp/know-your-rights#footnoteref7_wdnik6q>
> *Georgia v. Randolph*, 547 U.S. 103 (2006).****
>
> **8.     **8. <https://www.eff.org/wp/know-your-rights#footnoteref8_b305n7f>
> *United States v. King*, 604 F.3d 125 (3d Cir. 2010) (court approved search
> and seizure where two housemates shared a desktop computer, and one
> housemate granted the police access to the entire computer over the other
> housemate's objections, even though the objecting housemate was the sole
> owner of a hard drive in the computer).****
>
> **9.     **9. <https://www.eff.org/wp/know-your-rights#footnoteref9_eud14wi>
> Federal
> Rule of Criminal Procedure
> 41(f)(1)(C)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm>
> .****
>
> **10.  **10. <https://www.eff.org/wp/know-your-rights#footnoteref10_nnx3oth>
> *Wilson v. Arkansas*, 514 U.S. 927 (1995).****
>
> **11.  **11. <https://www.eff.org/wp/know-your-rights#footnoteref11_59lcttg>
> Federal
> Rule of Criminal Procedure
> 41(e)(2)(A)(ii)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm>
> .****
>
> **12.  **12. <https://www.eff.org/wp/know-your-rights#footnoteref12_ppsukui>
> *See e.g., United States v. Hill*, 459 F.3d 966 (9th Cir. 2006); *In re
> Search of 3817 W. West End, First Floor Chicago, Illinois 60621*, 321
> F.Supp.2d 953 (N.D. Ill. 2004); *see also* Federal Rule of Criminal
> Procedure 41(e)(2)(B) <http://www.law.cornell.edu/rules/frcrmp/Rule41.htm>.*
> ***
>
> **13.  **13. <https://www.eff.org/wp/know-your-rights#footnoteref13_wt70woy>Compare
> 18
> U.S.C. § 1001(a) <http://www.law.cornell.edu/uscode/18/1001.html> (maximum
> punishment for first offense of lying to federal officer is 5 or 8 years)
> with 18 U.S.C. §§ 1030(a)(2) and
> (c)(2)(A)<http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001030--...>(maximum
> punishment for first offense of simply exceeding authorized
> computer access is generally 1 year).****
>
> **14.  **14. <https://www.eff.org/wp/know-your-rights#footnoteref14_cnawh8n>
> *See United States v. Kirschner*, 2010 WL 1257355 (E.D. Mich. Mar. 30, 2010)
> (unpublished) (relying on *United States v. Hubbell*, 530 U.S. 27 (2000)).**
> **
>
> **15.  **15. <https://www.eff.org/wp/know-your-rights#footnoteref15_j6zcnpb>
> *See e.g., United States v. Hatfield*, 2010 WL 1423103 (E.D.N.Y. April 7,
> 2010) (unpublished); *In re Boucher*, 2009 WL 424718 (D. Vt. Feb. 19, 2009)
> (unpublished).****
>
> **16.  **16. <https://www.eff.org/wp/know-your-rights#footnoteref16_s17p0zg>
> Federal
> Rule of Criminal Procedure
> 41(g)<http://www.law.cornell.edu/rules/frcrmp/Rule41.htm>
> .****
>
> **17.  **17. <https://www.eff.org/wp/know-your-rights#footnoteref17_b3aqgg6>
> *See* 18 U.S.C. § 983 <http://www.law.cornell.edu/uscode/18/983.html>, Federal
> Rule of Criminal Procedure
> 32.2<http://www.law.cornell.edu/rules/frcrmp/search/display.html?terms=32....>
> .****
>
> **18.  **18. <https://www.eff.org/wp/know-your-rights#footnoteref18_wa1r13h>
> *Mancusi v. DeForte*, 392 U.S. 364 (1968); *United States v. Ziegler*, 474
> F.3d 1184 (9th Cir. 2007).****
>
> **19.  **19. <https://www.eff.org/wp/know-your-rights#footnoteref19_5x0bllk>
> *See e.g., Schowengerdt v. United States*, 944 F.2d 483 (9th Cir. 1991).****
>
> **20.  **20. <https://www.eff.org/wp/know-your-rights#footnoteref20_ztpjpme>
> *See Ziegler*, 474 F.3d at 1191 (citing *Mancusi*).****
>
> **21.  **21. <https://www.eff.org/wp/know-your-rights#footnoteref21_dx11c1e>
> *City of Ontario v. Quon*, 130 S.Ct. 2619 (2010); *O'Connor v. Ortega*, 480
> U.S. 709 (1987).****
>
> **22.  **22. <https://www.eff.org/wp/know-your-rights#footnoteref22_79aa8ko>
> *Chimel v. California*, 395 U.S. 752 (1969). ****
>
> **23.  **23. <https://www.eff.org/wp/know-your-rights#footnoteref23_4ysx44k>
> *See e.g., United States v. Murphy*, 552 F.3d 405 (4th Cir. 2009); *United
> States v. Wurie*, 612 F.Supp.2d 104 (D. Mass. 2009); *People v. Diaz*, 51
> Cal.4th 84, 244 P.3d 501 (2011).****
>
> **24.  **24. <https://www.eff.org/wp/know-your-rights#footnoteref24_n2u3eoi>
> *See e.g., United States v. Wall*, 2008 WL 5381412 (S.D.Fla. Dec. 22, 2008)
> (unpublished); *United States v. Park*, 2007 WL 1521573 (N.D. Cal. May 23,
> 2007) (unpublished); *State v. Smith*, 124 Ohio St.3d 163, 920 N.E.2d 949
> (2009).****
>
> **25.  **25. <https://www.eff.org/wp/know-your-rights#footnoteref25_r71cozc>
> *Arizona v. Gant*, 129 S.Ct. 1710 (2009).****
>
> **26.  **26. <https://www.eff.org/wp/know-your-rights#footnoteref26_my4ok8r>
> *See e.g., United States v. Finley*, 477 F.3d 250 (5th Cir. 2007); *Wurie*,
> 612 F.Supp.2d at 109-110; *United States v. Cole*, 2010 WL 3210963
> (N.D.Ga<http://n.d.ga/>.
> Aug. 11, 2010) (unpublished); *United States v. McCray*, 2009 WL 29607 (
> S.D.Ga <http://s.d.ga/>. Jan. 5, 2009) (unpublished).****
>
> **27.  **27. <https://www.eff.org/wp/know-your-rights#footnoteref27_g1k5iu4>
> *United States v. Flores-Montano*, 541 U.S. 149 (2004); *United States v.
> Ickes*, 393 F.3d 501 (4th Cir. 2005).****
>
> **28.  **28. <https://www.eff.org/wp/know-your-rights#footnoteref28_d98ym08>
> *Almeida-Sanchez v. United States*, 413 U.S. 266, 273 (1973); *United States
> v. Arnold*, 533 F.3d 1003 (9th Cir. 2008); *United States v. Romm*, 455 F.3d
> 990 (9th Cir. 2006); *United States v. Roberts*, 274 F.3d 1007 (5th Cir.
> 2001).****
>
> **29.  **29. <https://www.eff.org/wp/know-your-rights#footnoteref29_a8ligkg>
> *United States v. Cotterman*, 637 F.3d 1068 (9th Cir. 2011).****
>
> ** **
>
>  image001.png
> 27KViewDownload

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