Civil Rights and Civil Liberties Issues

Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses (R42701, April 2013) (24pp | 353kb | PDF) — “This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court’s determination of the reasonableness of a drone search would likely be informed by location of the search, the sophistication of the technology used, and society’s conception of privacy in an age of rapid technological advancement. While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places including areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people’s expectations of privacy evolve. In the 113th Congress, several measures have been introduced that would restrict the use of drones at home. Several of the bills would require law enforcement to obtain a warrant before using drones for domestic surveillance, subject to several exceptions. Others would establish a regime under which the drone user must file a data collection statement stating when, where, how the drone will be used and how the user will minimize the collection of information protected by the legislation.”

Terrorism, Miranda, and Related Matters (R41252, April 2013) (13pp | 247kb | PDF) — “The realities of contemporary terrorism are such that some have questioned whether these general rules can be, and should be, reexamined and adjusted.”

Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities (7-5700, May 2012) (23pp | 343kb | PDF)  — “The killing of Anwar Al-Awlaki and another U.S. citizen by airstrike in Yemen, although never officially attributed to U.S. military action, has fueled the ongoing debate about the legal propriety of targeted killings, in particular where a U.S. citizen is targeted or killed. While the Obama Administration has not released a detailed description of the legal rationale undergirding the targeting policy, some insight into the Administration’s thinking can be gleaned from speeches given by high-ranking Administration officials and government filings in a legal case brought by Awlaki’s father in an effort to enjoin military operations against his son. This memorandum is an effort to clarify the debate by providing legal background, setting forth what is known about the Administration’s position and identifying possible points of contention among legal experts and other observers, including the view from abroad.”

Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (98-326, October 2012) (162pp | 126kb | PDF) — “This is an outline of two federal statutes: the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA).1 Both evolved out of the shadow of the Supreme Court’s Fourth Amendment jurisprudence. The courts play an essential role in both. Congress crafted both to preserve the ability of government officials to secure information critical to the nation’s well-being and to ensure individual privacy. It modeled parts of FISA after features in ECPA. There are differences, however. ECPA protects individual privacy from the intrusions of other individuals. FISA has no such concern. FISA authorizes the collection of information about the activities of foreign powers and their agents, whether those activities are criminal or not. ECPA’s only concern is crime.”

Privacy and Civil Liberties Oversight Board: New Independent Agency Status (RL34385, November 2011) (12pp | 224kb | PDF) — "Recommended by the National Commission on Terrorist Attacks Upon the United States (9/11 Commission), the Privacy and Civil Liberties Oversight Board (PCLOB) was initially established as an agency within the Executive Office of the President (EOP) in 2004. Critics, however, maintained that the board appeared to be a presidential appendage, devoid of the capability to exercise independent judgment and assessment or to provide impartial findings and recommendations. This viewpoint gained acceptance in the 110th Congress when the PCLOB was reconstituted as an independent agency within the executive branch by the Implementing Recommendations of the 9/11 Commission Act (IR9/11CA), signed into law on August 6, 2007. On January 5, 2011, President Obama nominated two people to serve on the board, but the Senate has not confirmed either."

Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act (R41742, March 2011)  (11pp | 231kb | PDF)— "A criminal prosecution involving classified information may cause tension between the government’s interest in protecting classified information and the criminal defendant’s right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as ‘graymail,’ led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information."

Terrorism, Miranda, and Related Matters (R41252, May 2010) (13pp | 247kb | PDF) — "In Miranda v. Arizona, the Supreme Court held that no statement made by an individual during a custodial interrogation may be admitted into evidence against him at his criminal trial, unless he was first warned of his relevant constitutional rights and waived them. In New York v. Quarles, the Court later held that the Miranda rule was subject to a ‘public safety’ exception. Throughout this period, federal law stated that following arrest a suspect should be presented to a magistrate and advised of his rights without ‘unnecessary delay.’ Confessions made during the course of any unnecessary delay are generally inadmissible at the suspect’s subsequent criminal trial. The realities of contemporary terrorism are such that some have questioned whether these general rules can be, and should be, re-examined and adjusted."

Border Searches of Laptop Computers and Other Electronic Storage Devices (RL34404, November 2009) (24pp | 191kb | PDF) — "The federal courts that have addressed [the issue of the border search exception] have held that the border search exception applies to searches of laptops at the border. Although the Supreme Court has not directly addressed the degree of suspicion needed to search laptops at the border without a warrant, the federal appellate courts that have addressed the issue appear to have concluded that reasonable suspicion is not needed to justify such a search."

Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment (RL31826, June 2009) (24pp | 263 kb | PDF)— "Few exceptions to the presumptive warrant and probable cause requirements are more firmly rooted than the ‘border search’ exception.…This report…outlines the statutes authorizing certain federal officers to conduct warrantless searches[;]…the scope of the government’s constitutional authority to search and seize persons and property at the border[;]…[and] describes the varying levels of suspicion generally required for each type of border search as interpreted by the courts."

9/11 Commission Recommendations: A Civil Liberties Oversight Board (RS21906, August 2004) (5pp | |— "Among the recommendations made by the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) in its final report is the creation of a board within the executive branch to oversee adherence to guidelines on, and the commitment to defend, civil liberties by the federal government. This report examines this recommendation and its implications…." 

Source: Page created by the DHS/Office for Civil Rights and Civil Liberties and the DHS/Privacy Office in cooperation with the DOJ, Office of Justice Programs, Bureau of Justice Assistance.