Spinoza once said:

After experience had taught me that all things which frequently take place in ordinary life are vain and futile, and when I saw that all the things I feared, and which feared me, had nothing good or bad in them save in so far as the mind was affected by them; I determined at last to inquire whether there was anything which might be truly good.

Many people no longer make inquires of ordinary life about what is vain or futile; good or bad.  They are in too much of a hurry to examine their life. Everything in our modern lives is done in an instant from our “fast foods” to our “instant messaging.”  The problem is that, as time marches on, life may become more routine, more mundane. Hence, you create fewer memory bumps of emotionally-charged events — your first kiss, going to college, getting married, having your children – so that what might be called “regular events,” just pass by in a blur (technically, this is called reminiscence bump).  Can 46 years have passed since The Beatles broke up?

So what happens if our speed of life is suddenly slowed down right in front our eyes?  Moreover, what happens in an emotionally charged situation like a criminal jury trial?

Just ask the lawyers for John Lewis.  Mr. Lewis was on trial for murder of a police officer.  The key issue was whether he acted intentionally or under a state of panic.  As jurors are often asked to do in today’s courtrooms, the jury was asked to decide the question based on a video.  The jury watched the video in real time and in slow motion.  The returned a verdict indicating Mr. Lewis acted intentionally.

The issue on appeal was showing the video in slow motion.  Slow motion increases perceived intent.  Research demonstrates that “compared with simulated juries who saw only the regular speed video, the odds of a unanimous first-degree murder verdict were 3.42-fold higher among juries who saw only the slow version, and 1.55-fold higher among juries who saw both versions. These results demonstrate that giving viewers the opportunity to view both speeds reduces the intentionality bias, but does not eliminate it.”

"Seeing replays of an action in slow motion leads viewers to believe that the actor had more time to think before acting than he actually did. The result is that slow motion makes actions seem more intentional, more premeditated." In fact, jurors who saw the slow motion video were more than four times more likely to return a unanimous first degree murder verdict. The team found similar results using National Football League footage of prohibited helmet-to-helmet contact in video replay.

Unfortunately, the Supreme Court of Pennsylvania said who cares?  Even if jurors, the court reasoned, were biased when they saw the slow motion, they had enough knowledge to correct for that bias: They were aware that Mr. Lewis shot the officer within two seconds of noticing him; and they saw the real-time version of the video in addition to the slow-motion version.  Unfortunately, research suggests that such knowledge can fail to offset slow-motion bias.

So assume if you wish that a video camera is an objective recorder of events (which it is not).  can But do not compound that error by assuming the playback of the video does not affect the viewer.  This is clearly an example of when the prejudicial value of slow-motion video outweighs the probative value in a case like this.  Contrary to what a court wants to believe, a jury cannot overcome their own bias.  “[I]t seems imperative that an empirical understanding of the factors that contribute to assessments of intent inform the life-or-death decisions that are currently based, in part, on the intuitions of lawmakers and their tacit assumptions about the objectivity of human perception.”

A screwdriver is a lousy tool for pounding in nails.  That is the trick when you have a tool: you must use it for the right purpose in the right way for it to be effective.  The same can be said of a another tool: the police body cam.
The swift first-degree murder charge filed against a former University of Cincinnati police officer after his body camera captured him shooting an unarmed black man to death reflects how crucial video is in proving police misconduct.
Perhaps the most commonly cited indicator of body cameras’ potential to reduce instances of officer-civilian conflict is the “Rialto study.” In this study, which ran from February 2012 through July 2013, half of Rialto, California’s fifty-four patrol officers were “randomly assigned to wear the TASER AXON body-camera system.” The results of the study appeared conclusive: “[s]hifts without cameras experienced twice as many incidents of use of force as shifts with cameras,” and “the rate of use of force incidents per 1,000 contacts was reduced by 2.5 times” overall as compared to the previous twelve-month period.  Body-worn cameras reduced the use of force by roughly 50 percent, says Dr. Barak Ariel, the lead author. Complaints against police also fell 90 percent during the study period compared with the previous year.
In the wake of other high-profile incidents in Ferguson, Staten Island, North Charleston, Baltimore, and elsewhere, law enforcement agencies across the country are rapidly adopting body-worn cameras for their officers. One of the main selling points for these cameras is their potential to provide transparency into some police interactions, and to help protect civil rights, especially in heavily policed communities of color.  Likewise, some California cities, like Oakland and San Diego, have reported a decline in complaints against officers after members of their departments began wearing body cameras.  A big problem is that cameras can be edited or tampered with; some cops have been fired since they refused to turn their cameras on.
But accountability is not automatic. Whether these cameras make police more accountable — or simply intensify police surveillance of communities — depends on how the cameras and footage are used. That’s why The Leadership Conference, together with a broad coalition of civil rights, privacy, and media rights groups, developed shared Civil Rights Principles on Body Worn Cameras. The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the civil and human rights of all persons in the United States. Through advocacy and outreach to targeted constituencies, The Leadership Conference works toward the goal of a more open and just society – an America as good as its ideals.
 
Unfortunately the Milwaukee Police Department body cam policy has failed in 5 out of 8 categories specified by The Leadership Conference.
Makes the Department Policy Publicly and Readily Available
Milwaukee PD publishes its most recent publicly available BWC policy on its website as part of its Standard Operating Procedures. The policy is SOP 747, effective July 15, 2016.
Limits Officer Discretion on When to Record
Milwaukee PD requires officers to record “all investigative or enforcement contacts” through the completion of the event. (§§747.25.C.2.d, g)
 
    d. Members with a BWC shall make every effort to activate their BWC for all investigative or enforcement contacts including, but not limited to:
        1. Vehicle stops
        2. Impaired driver investigations
        3. Field interviews and pedestrian stops
        4. Transporting citizens or prisoners
        5. Searches of persons or property
        6. Dispatched calls for service
        7. Crime scenes
        8. Crash scenes (may be turned off if member is waiting on a tow truck and no additional enforcement activity is likely)
        9. Advising a subject of Miranda warnings (in the field or without MediaSolv)
        10. Suspect/witness statements and interviews
        11. Vehicle and foot pursuits
        12. Emergency response to critical incidents
    . . .
    g. Once a BWC is recording, members must continue to record until either the completion of the event or until they leave the scene and their involvement in the event ceases.
Before prematurely stopping a recording, officers must record a justification on camera before turning it off. (§§747.25.D.3)
 
    3. Members shall make a verbal notation on the recording any time he or she plans to intentionally stop a recording prior to the completion of an event or incident. The verbal notation must include the reason why the member is stopping the recording.
However, when officers fail to record a required incident, there is no requirement to provide a concrete justification.
Addresses Personal Privacy Concerns
Milwaukee PD prohibits officers from recording “in a places where a reasonable expectation of privacy exists.” But in other sensitive situations, including those that involve nude individuals or victims of sexual assault, Milwaukee PD gives officers full discretion over whether to record. (§747.25.D.1; §§747.25.E1-2)
 
    D. EXCEPTIONS TO RECORDING
        1. Police members have discretion in whether or not to record potentially sensitive events or circumstances (e.g., victims of a sexual assault, child victim statements / interviews, nude persons who are not the target of enforcement action, or a citizen victim/witness who requests they not be recorded while giving a statement, or where otherwise authorized in this policy).
    . . .
    E. PROHIBITED RECORDINGS
    In keeping with the department’s core values of respect and integrity, members assigned a BWC will adhere to the following guidelines:
        1. BWC’s will not be activated in a place where a reasonable expectation of privacy exists, such as dressing rooms, locker rooms and restrooms . . .
        2. BWC’s shall not be used to record a body cavity search, which are only allowed to occur in a hospital or medical setting. BWC's will be used to record searches done by officers in the field (e.g., pat-downs, vehicle searches).
 
Milwaukee PD suggests — but stops short of requiring — that officers inform subjects that they are being recorded. The policy does not expressly allow subjects to opt out of recording. (§747.25.C.2.h)
    h. While not required by policy or state law, members assigned a BWC may find it valuable to inform other parties that they are being recorded. This has proven to be influential in garnering cooperation of subjects and has been shown to reduce incidents of use of force.
 
Prohibits Officer Pre-Report Viewing
 
Milwaukee PD allows officers to review footage when writing their reports. (§747.25.I.1.b)
 
    1. . . . Recordings may be reviewed:
        . . .
        b. By a police member viewing their individually assigned recordings to assist with writing a report, supplement, citation, memorandum or court case preparation.
In “critical incidents” (action resulting in great bodily harm or death) officers are not allowed to view recordings until investigators arrive, but are not prohibited from viewing footage prior to making a statement or writing a report. (§747.25.F.2)
    2. In the event of a critical incident, members assigned a body worn camera will refrain from viewing the recorded data until the investigative entity responsible for the investigation arrives on the scene.
 
 
 
 
Limits Retention of Footage
Milwaukee PD specifies various “recording management categories” and the minimum retention durations for each category. Unflagged footage is to be preserved for 130 days, but it is not clear whether this is a minimum or maximum period. (§747.25.G.2)
 
    2. Recording Management Categories
        a. The following recording categories are to be used.
            . . .
            2. Incident - No Official Police Action Taken / Call Advised
                a. All video files that have contact with the public having no immediate evidentiary value at the time of recording will be saved in this category.
                b. Any file not tagged into another category by a member will be placed into this category.
                c. Files retained in this category will be preserved for 130 days from the date of recording.
 
Protects Footage Against Tampering and Misuse
 
Milwaukee PD prohibits unauthorized access to footage, but does not expressly prohibit officers from modifying, deleting, or otherwise tampering with footage. The policy also does not indicate that access to recorded footage will be logged or audited. (§747.25.J.2)
    2. Unauthorized accessing, copying, or releasing captured video without the approval of the Chief of Police or his/her designee is strictly prohibited. Members are prohibited from making copies of a BWC audio/video recording by using another recording device such as a cell phone.
 
Makes Footage Available to Individuals Filing Complaints
 
Milwaukee PD relies on existing public records law to make footage available, and does not expressly allow individuals who are filing police misconduct complaints to view footage. (§§747.25.J.4-6)
 
    4. Members will not allow citizens to review video captured by a BWC unless there is an investigative reason to do so and such viewing has been approved by a supervisor. Members shall advise citizens that they may request a copy of the recording through the public records process.
    5. The release of video requested through a public records request will be handled in accordance with existing policy and public records laws. Reproduction fees for duplication of recordings will be established by the City of Milwaukee. . . .
    6. Prior to the release of any BWC recording to the public, Open Records will ensure that proper redactions have been made in accordance with state law.
 
Limits Biometric Searching of Footage
 
Milwaukee PD does not place any limits on the use of biometric technologies (e.g., facial recognition) to search footage.

Before we begin this discussion, let me make one thing absolutely clear:  regardless of the law that I write about, the police can back up their orders with force, sometimes even lethal force, which will usually be upheld by courts.  So while you may have an absolute legal right to do something, you may not wish to exercise that right out on the street because of danger to your health or life.  As hard as it may be, be courteous to the police officer while you try to remember their name and badge number. As soon as you can, you should then contact attorney Paul A. Ksicinski.
 
Assume for a moment you are a judge.  You are confronted with an interesting case.  The evidence at trial shows that 7 African American defendants undertook a "prayer pilgrimage". The purpose of the pilgrimage was to visit church institutions and other places in Milwaukee and the Midwest to promote racial equality.  You were to move from place to place by city bus.
 
Unfortunately because of the violence at Mayfair shopping center and protests across Milwaukee freeways by Black Lives Matter, the police issued a new emergency rule that said groups of 5 or more African Americans could not wait together at a bus stop to avoid eruptions of violence.  The evidence at trial shows the defendants knew about the emergency police order and the 7 of them waited at the bus stop together anyway.  Based on the fact that 7 African American defendants were waiting at the bus stop, police officers approach the group and ask them to break up the group based on the emergency order and to avoid violence.  The evidence at trial shows that the 7 African American defendants said they were peaceful and engaged in no boisterous or objectionable conduct.  The police testified, in contradiction to the defendants, that a crowd gathered and that imminent violence was likely. The police arrest the defendants NOT for the purpose of preserving the custom of segregation in Milwaukee, but solely for the purpose of preventing violence.  The group of 7 refuse to break up when ordered by police.  Based on that law, you find the 7 defendants guilty of resisting or obstructing an officer.
 
Move forward in time in federal court where you as the judge are being sued for violating the civil rights of the defendants.  The issue of immunity has been decided against you and you are being deposed.  A deposition by the way is the out-of-court oral testimony of a witness that is reduced to writing for later use at trial.  You are, of course, sworn to tell the truth.
 
You are asked during his deposition whether a citizen has the right to disobey an unreasonable police order. More than likely your answer would be that a citizen should obey the officer and later seek redress after the fact.  Many trial courts would agree with you and is shared by many District Attorneys, police officers, and even high level judges.  By the way, this fact scenario is drawn from Pierson v. Ray, 386 U.S. 547 (1967)
 
You would get this answer despite all the Supreme Court cases which say otherwise.  In Edwards v. South Carolina, 372 U.S. 229 (1963) the defendants, 187 African Americans, while peacefully demonstrating against racial discrimination, marched through the State House grounds, normally open to the public, in a manner previously approved by the police officials. No disorder or blocking of traffic occurred, although a group gathered to watch the protest. When ordered by the police to disperse, the demonstrators, not moving, were arrested for breach of the peace; they refused to "break it up."  Despite the dissent's view that the dispersal "request" was "reasonable" under the circumstances, Edwards v. South Carolina, at 241 (dissenting opinion) and despite a failure by the majority to find that the order was arbitrary (although they doubted its reasonableness), the Supreme Court's opinion concluded:
 
... [I]t is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.  Id. at 235
 
The Court reversed the convictions, deciding that the interpretation of "breach of the peace" by the courts of South Carolina was unconstitutionally broad.  Edwards v. South Carolina, 372 U.S. at 234 (a breach of the peace is a violation of public order, a disturbance of the public tranquility, by an act or conduct inciting to violence).  Likewise, convictions cannot be sustained on the ground that failure to obey the command of a police officer constitutes a traditional form of breach of the peace.  One cannot be punished for failing to obey a command which violates the Constitution, and the police officers' command violated the Equal Protection Clause of the Fourteenth Amendment, since it was intended to enforce racial discrimination in the park.  Wright v. Georgia, 373 U.S. 284, 291-92 (1963) (six African Americans were convicted of breach of the peace for peacefully playing basketball in a public park in Savannah, Ga., customarily used only by white people and not dispersing when ordered to do so by the police People v. Galpern, 181 N.E. 572, 574 (N.Y. 1932) (A refusal to obey [a police officer’s] order can be justified only where the circumstances show conclusively that the police officer's direction was purely arbitrary and was not calculated in any way to promote the public order.)
 
Similarly, In Cox v. Louisiana, 379 U.S. 536 (1965) a CORE protest on the sidewalk across the street from the courthouse in Baton Rouge, where it had been directed to demonstrate by the chief of police, was led by the Reverend B. Elton Cox. As in many such buildings throughout the United States, the courthouse is the home for not only for homeless people but also houses other public offices in addition to the court. Shortly prior to this demonstration, several African American students had been picketing to increase Negro employment for the Christmas holidays. When Cox told his students, who were demonstrating against the arrests of the day before, that it was time to eat,' the sheriff, with rare intuition (Garner v. Louisiana, 368 U.S. 157 (1961) (where African Americans did nothing else to attract attention to themselves except to sit at the lunch counters, the convictions were so totally devoid of evidentiary support as to violate the Due Process Claus) had been decided a few days before), deemed such a direction inflammatory, and ordered the demonstrators to disperse. When they did not, he directed the police to use tear gas to disperse the students and Mr. Cox. The defendant's conviction for breach of the peace (affirmed by the lower courts) was unanimously reversed. Again, none of the opinions referred to the sheriff's order as purely arbitrary.  The practice in Baton Rouge of allowing local officials unfettered discretion in regulating the use of streets for peaceful parades and meetings notwithstanding the prohibitions contained in the statute against obstructing public passages abridged appellant's freedom of speech and assembly in violation of the First and Fourteenth Amendments. Cox v. Louisiana, 379 U. S. 553-558.
 
Finally in Shuttlesworth v. Birmingham, 394 US 147 (1969), the Supreme Court struck down a Birmingham, Alabama ordinance that prohibited citizens from holding parades and processions on city streets without first obtaining a permit.  Even though Justice Stewart's opinion for the Court mentioned that "the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance", the Court reversed Shuttlesworth's conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas. The ordinance was administered so as, in the words of Chief Justice Hughes, "to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places." 
 

The Fourth Amendment, broadly provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and that “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 Framers were responding, in large part, to the British use of “general warrants” and “writs of assistance.”

The historical origins of the Fourth Amendment are clear.  They are traceable to the political events in England and the Colonies which ignited the American Revolution.  Landynski, J., Search and Seizure and the Supreme Court:  A Study in Constitutional Interpretation, (1966) p. 19.  These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance.  Landynski, at 20. 
In Olmstead v. United States, 277 U.S. 448 (1928) a 5-4 decision, with the majority opinion written by Chief Justice William Howard Taft, the Court ruled there was no violation of the Fourth Amendment. Chief Justice Taft explained that while letters posted in the U.S. mail were protected by the Fourth Amendment, phone conversations were not, for two main reasons. First, letters were specifically implied in the language of the amendment, as papers, and were carried by the U.S. government, which was bound by the amendment. Phone conversations, on the other hand, were not covered by the language of the amendment. Chief Justice Taft also pointed out that telephone and telegraph lines are not controlled by the government. Furthermore, since there was no trespass onto the property of Olmstead and evidence was gathered through the sense of hearing, which was not forbidden by the Constitution, there was no search or seizure, so the Fourth Amendment did not limit the government’s actions.

In a famous dissent, (which every Court should know by heart) Justice Louis Brandeis wrote that the purpose of the amendment was to secure those conditions favorable to the pursuit of happiness. For that reason he argued that the amendment created zones of privacy, which the government could not intrude upon without probable cause. He believed in a flexible Constitution that could be adapted to a changing society. Justice Brandeis was concerned that, if unchecked by the Fourth Amendment, the government might, in the future, develop the psychic and related sciences to the extent that it could discover the unexpressed thoughts of people. He pointed out that the Court had not been shy in expanding the powers of Congress to meet the needs of contemporary society and thought that the same should be done to protect civil liberties. For Brandeis, a search or seizure took place anytime the government initiates a process by which it attempts to gather evidence to be used against an individual.  Brandeis warned that:

Subtler and more far reaching means of invading privacy have become available to the Government . . . the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government. without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

It took the Supreme Court forty years in Katz v. United States (1967) to admit that the majority had been wrong to say wiretapping did not implicate the Fourth Amendment, and that Brandeis had been right. The Court closely examined and then upheld New York legislation that carefully regulated the issuance of a special kind of warrant to allow wiretapping, if the government could show a judge the reasonableness of the intrusion in a way that took account of the particular ways that wiretapping invades privacy. Congress responded by enacting what is still known as Title III, the federal wiretap statute which nearly 50 years later stands as a testament to the open, deliberative approach to complex privacy issues.

Some courts, possibly hearing Brandies, have also sounded an alarm.  Justice Douglas once noted: "Electronic surveillance is the greatest leveler of human privacy ever known .... [Elvery person is the victim, for the technology we exalt today is everyman's master."  United States v. White, 401 U.S. 745,756-57 (1971) (Douglas, J., dissenting).  Chief Justice Warren shared this fear:"[T]he fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; [the] indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments."  Lopez v. United States, 373 U.S. 427, 441 (1963) (Warren, C.J., concurring).

Many courts, unfortunately, have not learned from the words of Brandeis that “subtler and more far reaching means of invading privacy” were coming from the government.  Instead too many courts continue to allow technology to write the Fourth Amendment out of the Constitution.  For instance, in Dow Chemical Co. v. United States, 358 U.S. 307 (1986), the Court held that surveillance techniques that do not reveal intimate details about a person’s life, in this case use of highly detailed cameras, do not interfere with a person’s subjective expectation of privacy.  In an era of flying drones with cameras, is it good policy to say that taking aerial photographs with a zoom lens is analogous to standing outside the complex and looking in, and is therefore not a search in the context of the Fourth Amendment?

Likewise, thermal scans were determined to be particularly effective in detecting drug growing operations, because marijuana can be grown indoors with the aide of high intensity lamps.  A new technology enabled law enforcement agencies to infringe on the fourth amendment rights of American citizens.  It was not until 2001, ten years after the new technology was first employed by law enforcement agencies, that the Supreme Court decided that thermal scans are a search under the Fourth Amendment and therefore require a warrant.  Kyllo v. United States 533 U.S. 27 (2001).

Now courts refuse to recognize that there is virtually no aspect of life that cannot be captured, analyzed, and stored in 0s and 1s. Credit card and smartphone use reveals a wealth of information about someone that in the past had been known only by a small number of family members or close friends. The government’s ability to access information about someone possessed by third parties (e.g., telecommunications companies, Facebook, Amazon) and store that information permanently (via computer databases) enables the government to create detailed files about someone without that person’s knowledge.

Searches and seizures of computers and computer data present complex legal questions that, if resolved incorrectly, present a very real threat of massive intrusions into civil liberties. Several instances of abuse have already been documented.  See Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1993), aff'd, 36 F.3d 457 (5th Cir. 1994); Editorial, Search and Seizure, Computer Style, ST. Louis POST-DISFATCH, Jan. 26, 1993, at 2C (FBI seized computer bulletin board system in search for pornographic files, leading to losses of $40,000 for the owner of C1,: system, who had consistently tried to keep pornographic material off the system and had kept the local police notified of pornographic materials transmitted on his system); BRUCE STERLING, THE HACKER CRACKDOWN (1992) (a full-length book discussing government raids on suspected computer hackers). Harvard law professor Laurence Tribe has even called for the proposal and passage of a constitutional amendment specifically protecting the privacy of electronic communications.  Paul Freiberger, Computer-Age Call for New Amendment, CHI. TRIB., Mar. 31, 199 l, at 2; see Matthew Goldsmith. Privacy Laws Urged for Data Superhighway, N.Y.L.J., Jan. 24, 1994. at 1 (discussion of legislative proposals and calls for increased protection).

But now the government itself has become that which it prosecutes:  a hacker.  “In 2015, the FBI used a piece of malware to identify suspected visitors of a dark web child pornography site. Now, nearly 30 legal teams across the country have pushed to get all evidence thrown out of court, and many attorneys have decided to pool their efforts in a ‘national working group.’ The cases revolve around Operation Pacifier, in which the FBI briefly assumed control of the “Playpen” website. The agency hacked computers all across the world—including over one thousand in the US—based on one warrant that has become legally contentious.”  Joseph Cox, “Dozens of Lawyers Across the US Fight the FBI's Mass Hacking Campaign,” Motherboard July 27, 2016.  The FBI took control of Playpen, and for just under two weeks ran it from a government server. During this time, the FBI broke into targets’ computers, before grabbing their IP address and other technical information.  The judicial response?  Sounds good and is not outrageous that the government ran a child porn site.  “Defense Lawyers Claim FBI Peddled Child Porn in Dark Web Sting” Motherboard (Jan. 8, 2016); “Judge Rules FBI Running Child Porn Site for 13 Days Was Not ‘Outrageous Conduct'” Motherboard Jan. 26, 2016 (“I am not shocked by this,” Judge Robert J. Bryan said in a hearing transcript. “I did not find it outrageous.”)

Fortunately, some courts are remembering history so we are not doomed to repeat it.  They are beginning to reject government hacking.  “In a First, Judge Throws Out Evidence Obtained from FBI Malware”  Motherboard (April 20, 2016)