Tag Archives: Fourth Amendment

New Mexico legislature passes civil asset forfeiture reforms

Posted on by

nm-sealNEW MEXICO — The unconstitutional procedure of civil forfeiture is being given special attention these days thanks to the Land of Enchantment. The New Mexico legislature passed H.B. 560 to limit civil forfeitures in their State. Governor Susana Martinez, however, has yet to sign it into law. The organization Freedom Works is concerned about the delay.

Recently Eric Holder announced new rules actually restricting civil forfeiture.

According to the End Forfeiture web site, there is a distinct difference between civil and criminal forfeiture.

In a criminal forfeiture, as the name implies, forfeiture of assets occurs when one is convicted of a crime. The action is taken against a person which means the person is given all rights to a criminal trial and a lawyer if one can not be afforded. The burden of evidence is on the government.

In a civil asset forfeiture, “Civil forfeiture cases are in rem proceedings—meaning that they are technically brought against the property itself rather than its owner. This legal fiction means that police and prosecutors can take and sell your cash, cars, homes or other property without having to convict you or even charge you with any wrongdoing. Fighting back means having to pay for a lawyer yourself or go it alone. And instead of the government having to prove your guilt, under civil forfeiture you must prove your innocence. It is an upside-down world that where the government holds all the cards and has the financial incentive to play them to the hilt.”

The classic example used is the IRS. If you deposit $10,000 or more regularly, that is reported to the IRS. If one starts depositing just less than that amount, the IRS assumes that you are guilty of attempting to hide something and acts to seize all of your assets. There may be no criminal charges brought against the person, but the burden of evidence is on the person to to prove their innocence. That may require lawyers fees more than the assets are worth, thus allowing the government to keep the seized assets.

The new rules by Eric Holder would require government authorities to act only on probable cause that the funds were generated by illegal activity or planned to be used in future criminal activity. In addition, if the activity does not prove to rise to the level to bring either civil or criminal trial, the agency must return assets in full.

This is a policy change, however, and can be changed by subsequent nominations to the position of Attorney General. This is just one example of why it is important for the Senate to select wisely. Freedom Works is not impressed with the civil asset forfeiture record of Loretta Lynch.

Action at the national level is not restricted to the office of the Attorney General. Senator Rand Paul (R-KY) has submitted S. 255 Senator Rand Paul (R-KY), the Fifth Amendment Integrity Restoration Act of 2015 or the FAIR Act [H.R. 540 in the House submitted by Rep. Tim Walberg (R-MI-7)].

The Senate bill would ensure that a person contesting civil forfeiture has legal representation and increase the burden of proof by the federal government to clear and convincing evidence of a criminal activity.

The act of civil access forfeiture violates not only the due process of the Fifth Amendment, but the Fourth Amendment protection against unreasonable searches and seizures and to be secure in their effects.

Civil asset forfeiture is not restricted to federal abuse. State and local law enforcement agencies have been known to seize assets without due process. The Institute for Justice gave Arizona a grade of D in 2010 for the civil forfeiture procedures in the State.

The New Mexico legislation is being hailed as the most sweeping reform of civil asset forfeiture in the history of the practice.

See Also:
1. New Mexico Nixes Civil Asset Forfeiture: Leviathan Can Be Defeated — Forbes
2. Arizona Earns “D” In “Policing for Profit” Report — Institute for Justice

Government wonders: What’s in your old emails?

Posted on by

r99U5.AuSt.91By Lindsay Wise
McClatchy Washington Bureau – February 11, 2015

WASHINGTON — If you’ve been remiss in cleaning out your email in-box, here’s some incentive: The federal government can read any emails that are more than six months old without a warrant.

Little known to most Americans, ambiguous language in a communications law passed in 1986 extends Fourth Amendment protections against unreasonable search and seizure only to electronic communications sent or received fewer than 180 days ago.

The language, known as the “180-day rule,” allows government officials to treat any emails, text messages or documents stored on remote servers – popularly known as the cloud – as “abandoned” and therefore accessible using administrative subpoena power, a tactic that critics say circumvents due process.

As you rush to purge your Gmail and Dropbox accounts, however, be forewarned that even deleted files still could be fair game as long as copies exist on a third-party server somewhere.

Read more at MC Clatchy DC

Arizona Bill to reduce metadata collection moves forward

Posted on by

nsa-hubArizona Senator Kelli Ward introduced SB 1156 (HTML | PDF) which would prevent agencies and corporations of The Great State of Arizona from assisting in the metadata collection by the NSA and other agencies.

The Tenth Amendment web site calls it the first in the nation.

Arizona Senator Kelli Ward (Photo AZ Legislature web)

Arizona Senator Kelli Ward (Photo AZ Legislature web)

FOURTH AMENDMENT

The Fourth Amendment of the inalienable Bill of Rights provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court has so watered down most of the Bill of Rights through decisions based on ideology and not constitutionality that this provision is almost worthless. For example, TSA can violate your person without a warrant based on probable cause by Oath or affirmation by your simple act of buying a ticket for public transportation.

Apparently, however, the “fake” NSA spying scandal has finally pushed Senator Ward too far. The bill would not stop illegal data collection by the NSA and other agencies which has tapped into all forms of communications. It would only prevent the State agencies and corporations dealing with the State from providing any assistance to the federal government.
Continue reading →

Sedona International Film Festival and Sedona Smart Meter Awareness offer free smart meter documentary viewing

Posted on by

Sedona International Film Festival and Sedona Smart Meter Awareness groups have teamed up to present a documentary on so-called smart meters.

The documentary, Take Back Your Power, written by Josh del Sol and Daryl Bennett and directed by Josh explores the spying capability built in to the smart meters. The film was released on September 5th.

Smart meters are already in place in Flagstaff, Williams and other northern Arizona cities. Most city and town councils vote to approve them without any idea of the Fourth Amendment violation these meters represent.

The viewing of the film is scheduled for this Monday, September 9th at the Mary D. Fisher Theatre in Sedona. The theater is located at 2030 W. Highway 89A in West Sedona.

The 4 pm and 7 pm showings are booked, so the groups added a special 1 pm showing. To reserve free tickets, you can call 928-282-1177

Leahy scuttles his warrantless e-mail surveillance bill

Posted on by

Sen. Patrick Leahy has abandoned his controversial proposal that would grant government agencies more surveillance power — including warrantless access to Americans’ e-mail accounts — than they possess under current law.

The Vermont Democrat said today on Twitter that he would “not support such an exception” for warrantless access. The remarks came a few hours after a CNET article was published this morning that disclosed the existence of the measure.

A vote on the proposal in the Senate Judiciary committee, which Leahy chairs, is scheduled for next Thursday. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.

Leahy’s about-face comes in response to a deluge of criticism today, including the American Civil Liberties Union saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress — with more than 2,300 messages sent so far — titled: “Tell Congress: Stay Out of My Email!”

Read more at CNET

Senate bill rewrite lets feds read your e-mail without warrants

Posted on by

Proposed law scheduled for a vote next week originally increased Americans’ e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

Leahy’s rewritten bill would allow more than 22 agencies — including the Securities and Exchange Commission and the Federal Communications Commission — to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

It’s an abrupt departure from Leahy’s earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.”

Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations objected to the legislation and asked him to “reconsider acting” on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday.

Read more at CNET