Aug 26, 2022

Hey everybody, I’m Joe Miller and here’s how tech law & policy is affecting you this week.

En banc Fifth Circuit ruling solidifies police officers’ authority to expand cell phone searches

The Fifth Circuit, which is in Texas, decided that pictures of child pornography found on three cellphones in the van the defendant was driving when he was arrested couldn’t be suppressed even though the original warrants for the phones weren’t  related to the federal crime of receiving child pornography. 

They arrested the defendant because they smelled marijuana and found an Advil bottle with ecstasy in it.

But when the officers searched the defendant’s van on the night of the arrest, they also found creepy stuff in the defendant’s car, like a child’s backpack filled with school supplies, sex toys, 100 pairs of women’s underwear, and a lollipop in the cup holder.

So the officers suspected that the defendant was a child predator. However, these items, in and of themselves, didn’t rise to the level of probable cause that would have allowed them to search the phones for evidence of child pornography.

So they limited the warrant affidavit they submitted to the judge only to drug trafficking and possession – because of the weed and ecstasy. But the warrant affidavit from the officers was super detailed, and the judge granted it.

The officers searched the three phones ostensibly only looking for evidence of drug trafficking and possession.But in the process, when they were looking at pictures on the phone, they found child pornography. So the cops stopped searching and went back to the judge for separate warrants to search for additional evidence of receiving child pornography. The judge granted the additional warrants, conducted a forensic search of the phone, and found 19,270 images of child pornography on the 3 phones.

The grand jury charged the defendant with receiving child pornography.

So the defendant tried to suppress all of this evidence. First, he argued that they didn’t have probable cause to search for drug trafficking evidence in the first place, I guess because he felt like he didn’t have that many drugs in his car. But he also tried to argue that the police didn’t have probable cause for the charge of receiving child pornography either, because the officers didn’t say anything about child pornography in the warrant affidavit. So he argued that the police just wanted to get him for child porn, and that they used what he considered a trumped-up drug trafficking warrant to get the evidence they really wanted so they could charge him with receiving child porn.

A three-judge panel of the 5th Circuit suppressed the evidence. But the full court held this week that the warrants had plenty of details in them and that the officers acted in good faith. They weren’t willful or negligent when they found the images – actually they obtained a separate warrant for the forensic search. 

So, what do you think? Should the officer have said in the warrants that he suspected the defendant of receiving child porn? Go to techpolicypodcast.org, click the mic in the lower-right hand corner and let us know what you think.

One-thousand schools in the U.S. now remotely monitor how much time kids spend in the bathroom

Motherboard reports that some 1,000 schools in the U.S. use a technology called “e-Hallpass” to monitor student locations. It’s like the app Amazon uses to track how long their employees take breaks, i.e. “time off task.” It tells whoever has access to the data how long the child has been in the bathroom. The schools implementing the technology are located in California, New York, Virginia and North Carolina. The app developer, EduSpire, promises “hall omniscience” in its marketing materials and purports to be designed to prevent things like students from meeting up in the hallways and TikTok challenges. 

Remote test proctoring “room scans” are unconstitutional: federal judge

So a lot of us haven’t been in school for a while, so we haven’t had the ability, really, to take exams from home, something that’s now a thing, since COVID basically changed what seems like every aspect of our lives. 

Well part of taking exams from home is remote proctoring, with schools figuring out ways to monitor and make sure students aren’t cheating. One of the ways they do this, which Cleveland State University did to the student in this case, is to require test-takers to participate in “room scans,” where the student sends back a 360-degree view of the room they’re taking the test in. 

Well, a federal judge in the Northern District of Ohio has now found that such remote scans are unconstitutional, at least with respect to state schools. The Electronic Frontier Foundation noted in a post that, although the district court’s ruling doesn’t bind other federal courts, it’s still persuasive. The judge who issued the ruling is a Republican appointee.

Twitter whistleblower to testify before Congress

The Twitter whistleblower who filed an 84-page complaint with the Securities and Exchange and Federal Trade Commissions, claiming Twitter lied about its security policies and put its 238 million daily users at risk,will testify before the Senate at a September 13th hearing. Peiter Zatko, a respected security analyst whom Twitter fired after just 15-months with the company, alleges egregious errors by Twitter. According to Zatko’s accusations, Twitter has apparently taken a day-by-day, hope-for-the-best approach to protecting its users, putting forth a smiley image to the public, while executives implement lax internal security measures, measures that haven’t prevented hackers from taking over high-profile accounts such as those belonging to Barack Obama and Elon Musk. 

Zatko finds a potential ally in Musk who has been trying to rescind his $44 billion takeover bid of the company. 

Facebook/Twitter dismantle U.S. influence campaign about the war in Ukraine

Finally, Naomi Nix reports for the Washington Post that while most efforts by social media platforms to curtail disinformation about the war in Ukraine focus on propaganda spread by Russia and her allies on social media, Facebook and Twitter have removed accounts pushing a pro-U.S. perspective about the war.

And Issie Lapowsky reports for Protocol that Google will launch an initiative through its anti-extremism unit, Jigsaw, and YouTube, which, along with other social media platforms, will broadcast to 55 million users, a series of videos designed to educate – inoculate – the European public against disinformation about Ukrainian refugees.

That’s it for this week. You can find links to all of these stories in the show notes.

Stay safe, stay informed, have a great weekend. Ciao.