In the case, DEA agents secretly planted a GPS locator on Juan Pineda-Moreno’s Jeep at night while it was parked outside his home, and then used it to pinpoint the illegal marijuana crop he was cultivating. Pineda-Moreno appealed the case on the grounds that the secret tracking violated his Fourth Amendment rights, but a three-judge panel denied his appeal in January and a larger panel ruled this month against reconsidering the case.

The ruling, which sets precedent for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, holds that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” doesn’t apply to driveways.

This decision upsets years of legal precedent establishing “curtilage” (legalese for the property surrounding a house) as protected under the Fourth Amendment, and represents an officiously narrow interpretation of the “open fields doctrine” test established in United States v. Dunn in 1987. In that case, DEA agents tracked a large shipment of chemicals used to manufacture drugs to Mr. Dunn, a meth lab operator. Agents crossed his fence, looked through the barn window, found the meth lab, executed a search warrant and convicted Dunn of conspiracy to manufacture and distribute methamphetamine.

The prosecution argued that, as per Hester v. United States, Fourth Amendment protection does not extend to the “open fields.” Dunn argued that the case didn’t concern an “open field”; it concerned a barn surrounded by barbed wire. Dunn’s conviction was thrown out by the Supreme Court, and established the four-point test of whether curtilage privacy protections apply.

From the ruling, “curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.”

In the majority opinion, the Ninth Circuit Court ruled that since Pineda-Moreno’s driveway wasn’t enclosed and was open to passersby like delivery men and neighborhood children, it didn’t pass the Dunn test for curtilage.  Never mind that in the Dunn opinion, the majority writes “we do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions.”

This strict application of precedent really means that only people who can afford to fence off their driveways have a reasonable expectation of privacy, as pointed out by Chief Judge Alex Kozinski in his dissenting opinion. Though he was appointed by Reagan and remains a vocal conservative in the predominantly liberal Ninth Circuit, his dissenting opinion makes him sound like a hardline leftist.

“There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” he wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter.”

But the Ninth Circuit doesn’t make precedent for the whole country, and the U.S. Court of Appeals for the District of Columbia recently ruled that extended tracking via GPS requires a warrant. But, since conflicting precedent has now been set on the West Coast, this issue is bound for the Supreme Court. Hopefully, they’ll side with the rights of the people.

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Photo: Army Recognition

Leaked Defense Department files from the controversial website WikiLeaks.org appear to confirm that Pakistan’s ISI spy agency attempted to poison at least one contractor using alcoholic beverages.  The incident happened in June 2007 but the bizarre story was recently lent credence by a leaked intelligence warning issued in February 2007 that ISI tried to poison American personnel.

Here’s how the plot unfolded.  In February 2007, American geologist and key figure in Afghanistan’s multi-billion dollar mining interests James Yeager returned to his Kabul residence to find it had been burglarized.  Intruders took money from a drawer and, bizarrely, left behind a single bottle of Corona on his counter.  Since Mr. Yeager isn’t a fan of Corona, it sat on the counter for two weeks, until he opened it during a going-away party as other drinks ran low.

He told the Christian Science Monitor, “I pulled it out and when I popped it there was no fizz and the cap was loose.  Because this one didn’t have fizz you wonder if it went rancid or not, and I just kind of sniffed it and I went ‘Oh, that doesn’t smell like beer.’ ”

As a geologist, he recognized the smell as sulfuric acid, a highly toxic and corrosive substance commonly used in car batteries, and poured it out in the toilet, where it “fizzed,” leaving “no question” in his mind as to whether it was sulfuric acid.

The attempt on Yeager’s life may have resulted from his role in bidding for the Anyak copper deposit, which was awarded to a Chinese mining concern. Before his departure in 2007, he urged the Afghan government to reconsider its award. In 2009, he authored a report critical of the bidding process, alleging that the Afghan Mining ministry did not operate transparently and that Chinese firms do not have to play by the same anti-bribery rules as American competitors.

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Jacob Lew

Jacob “Jack” Lew, Obama’s nominee to replace Peter Orszag as Director of OMB, has served at the State Department since the last time he served as Director of OMB for President Clinton.  Regardless of whether Orszag’s departure resulted from policy differences with President Obama, it’s clear that at least some fiscal policy changes are coming.

For one thing: Jack Lew helped orchestrate the 1997 compromise between Bill Clinton and Newt Gingrich that balanced the federal budget as deputy director at OMB.  He’s a figure from the Clinton administration, who served as Executive Director of Legislative Affairs at OMB, so he’s an experienced Congressional liaison who is used to reaching across the aisle.  The fact that Obama is replacing one the chief architect and advocate of the stimulus plan with a Clinton appointee who presided over the first federal surpluses since 1969 means that the White House has sensed a shift in the political winds and is positioning itself to make a dent in ballooning federal deficits.

While spending cuts are generally bad news for government contractors, the areas most ripe for spending cuts are entitlements.  As ExecutiveBiz reported earlier this year, unless major changes are made to curb spending and borrowing to cover entitlement outlays, Congress will be forced to cut defense spending.  Douglas Elmendorf, Director of the Congressional Budget Office, wrote in January that “looking across the whole 40-year period, the basic story of U.S. fiscal policy is fairly simple: The country financed an increase in Social Security, Medicare, and Medicaid spending by reducing defense spending relative to the size of the economy.”

Since Jack Lew presided over three years of billion-dollar surpluses in Washington, he’s a good choice to pitch politically costly measures like Social Security reform and cuts to Medicare and Medicaid to Congress.  Since interest payments on the national debt is projected to grow from 5% of total federal outlays this year to 13% in 2015, there’s no time like the present to balance the federal budget.

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Schmidt, who made a rare public appearance as the day-long event winded down at the Hilton Washington, spoke about the issue of making it hard for cyber criminals to conduct illegal activities.

“One of the things we look at [is] the costs/benefits of doing cybersecurity specifically,” he said. “When you look at some of the instances, particularly some of the consumer-facing components of private sector … that are exposed, they try to look at how can we wind up costing those looking to do these things more than the value that they find?”

If a cyber criminal is able to sell a stolen identity for $5, “how do we create an environment where it’s going to cost them $10 to get back?” Schmidt asked and added how these are issues the private sector will be looking at on a regular basis. On the public-sector side, however, Schmidt said the government has to use a different approach, and to apply deterrence is a “real challenge.”

Some of the things the government needs to focus on is trying to deny any benefits to adversaries, and patching the holes in the networks to prevent hackers from intruding the systems, Schmidt said.

“To make sure that the good hygiene that we should be doing in our ecosystem from an ICT perspective with the global gate is to make sure that we, indeed, are reducing the vulnerabilities so [hackers] don’t have the capacity to do harm to us in any shape or form,” he said.

On the issue of strengthening partnerships between the public and private sectors, Schmidt said there needs to be a move beyond just using the term “private-public partnership.”

“[W]hen we start looking at some of the responsibilities we have, we have to move beyond just sort of using the terms, sort of just throwing it out there saying, you know, ‘we’re doing private-public partnerships,’” he said. “There’s got to be something substantial there. … It’s easy to throw information in a box and say it’s classified, but in reality, how classified is it sometimes? … There’s got to be a balance we have to give to the owners and operators of our critical infrastructures that are so key to our success on the government side.”

Outlining cybersecurity goals for the government, Schmidt stressed the need to educate the public on how to safely use the Internet. As part of the government’s initiative to raise awareness, the National Institute of Standards and Technology recently launched a new interagency program called NICE to educate Americans of all ages on cybersecurity and deepen their knowledge.

“We need to teach Internet users the best places to go, we need to make sure that we’re focusing on not putting people in a position to use skills that they don’t have,” Schmidt said. “That’s one of the biggest challenges we have constantly. We say, ‘we’re going to teach you how to be a cybersecurity expert.’ And they’re more concerned about going out and trying to beat the 97-degree, high-humidity day while going to the store somewhere. We need to move away from that.”

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Robert Carey

As we reported last week, Navy CIO Robert Carey is expected to leave his current position by the end of the summer, departing as the Navy’s Next Generation Enterprise Network kicks into high gear and legacy IT architectures like the Navy/Marine Corps Intranet continue to be phased out.

Whoever moves in to fill CIO Carey’s shoes has their work cut out for them.  CIO Carey laid out an ambitious set of priorities for 2010 this February, detailing the need for agile decision-making in the budgetary and acquisition processes that is capable of keeping up with the fast-paced development of information technology as well as the need for better cybersecurity architecture and training.  From his blog, “Everyone is a cyber warrior and as such will require better and different training. The Cyber Age is here, and we must accelerate our knowledge of the network as a tool to perform our work.”

Additionally, the GSA is looking for a deputy CIO to advise Casey Coleman, one of the brains behind GSA’s successful cloud computing storefront, apps.gov.  In an interview with ExecutiveBiz from last year, she explained the unique challenges of cloud computing for the federal government, “One of the challenges is going to be information security because one of the basic tenants of cloud computing is multi-tendency and that is the notion of sharing shared services delivered over the internet to a number of users in an environment where you are not in total control of that environment.  You are subscribing to a service from a service provider.  The security of that is a joint arrangement between the service provider and you as the consumer or customer.”

Also, CIO Coleman has been an active user of social media since she took office, frequently issuing updates via the microblogging site Twitter in line with the Obama administration’s mandate for increased transparency, even tweeting from a plane en route to a conference during an emergency situation.  ”During our flight to Las Vegas, some lunatic tried to open the front exit hatch in midair. About a dozen men rushed him & held him down,” she tweeted mid-flight to Las Vegas for Microstrategy World 2010.

Between cloud computing, social media and cybersecurity, whomever steps into these new federal IT jobs has their work cut out for them.  Here’s hoping they live up to the high standard set by consummate professionals like Robert Carey.

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This announcement comes ahead of a proposed DoD plan to insource 11,000 acquisition personnel, bringing them out of the private sector and in to government. The impending insourcing of these personnel leaves many questions open, including how to ensure that new DoD workers don’t share information with former co-workers.

The memo includes a promise to release “updated information soon” specific to insourcing, but has little new information apart from revealing the latest bridge DoD will have to cross to implement a key part of its strategy to strengthen acquisitions: how to guarantee the impartiality of a large number of employees who recently served in the private sector.

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In compliance with FISMA, agencies are required to assess smartphone vulnerabilities and develop policies for their use.  Many civilian agencies don’t restrict smartphone usage (so long as your device isn’t agency-issued, as the FBI bans app downloads on FBI-issued smartphones), but DoD and the intelligence community don’t allow classified material to be viewed on smartphones.

Despite the successes of the Secure Mobile Environment Portable Electronic Device (SME PED) program, launched in 2005, L-3’s Guardian and General Dynamics C4 Systems’ Sectéra Edge, the two devices produced by the program, are still being evaluated by DoD.  Both phones are NSA level 1 encrypted and are capable of placing secure phone calls.  Ironically, though, DISA regulations that govern secure phone calls require any secure call to be made from a Sensitive Compartmented Information Facility (SCIF), and wireless devices are not allowed in SCIFs.

So one obstacle to implementing smartphone technology in a classified environment is the rule structure governingclassified environments, which is mostly a combination of late cold war and early Internet-era legal phrasing.   But what about unclassified material?

If you don’t plan on connecting your wireless device to your DoD computer, you’re mostly in the clear so long as you’re handling unclassified material.  However, if you plan to connect your device to your work computer, for example, planning to synch your BlackBerry or iPhone’s e-mail to your desktop, there are two conditions you have to meet: first, the DoD computer has to use the DoD Host Based Security System (HBSS) with the Device Control Module (DCM); and second, the mass storage mode of your wireless has to be disabled.  Any combination of wireless devices and desktop computers that can’t meet these two criteria means you’re out of luck, as far as DoD is concerned.

In order for the government to take full advantage of these revolutionary wireless technologies, the legal architecture underpinning federal information technology security needs to be updated, because right now, the government is using dial-up rules for a wireless broadband world.

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Building our Foundation

Obama’s National Security Strategy starts by acknowledging that “our national security begins at home,” and saying that we must “renew the foundation of our strength,” our economy.  ”Our prosperity serves as a wellspring for our power. It pays for our military, underwrites our diplomacy and development efforts, and serves as a leading source of our influence in the world. Moreover, our trade and investment supports millions of American jobs, forges links among countries, spurs global development, and contributes to a stable and peaceful political and economic environment.”

The administration’s strategy notes underinvestment in areas “essential to U.S. competitiveness” like education, energy, science and technology and health care, and singles out rising fiscal and trade deficits as a long-term risk to U.S. security.

Also, maintaining America’s “moral leadership” is a priority of the administration.  ”Our moral leadership is grounded principally in the power of our example—not through an effort to impose our system on other peoples..for if we compromise our values in pursuit of security, we will undermine both.”

Pursuing Comprehensive Engagement

Obama’s National Security Strategy seeks to avoid “self-imposed isolation that denies us the ability to shape outcomes” by “reengaging the world on a comprehensive and sustained basis.”  According to the report, “engagement begins with our closest friends and allies—from Europe to Asia; from North America to the Middle East,” and the administration plans to focus on “cooperation with other 21st century centers of influence—including China, India, and Russia.”

To America’s self-identified enemies, the strategy offers a choice: “abide by international norms, and achieve the political and economic benefits that come with greater integration with the international community; or refuse to accept this pathway, and bear the consequences of that decision, including greater isolation.”

Also, the strategy prioritizes “engagement among peoples—not just governments—around the world,” a hallmark of the Obama Administration’s foreign and domestic policy.  ”Time and again, we have seen that the best ambassadors for American values and interests are the American people—our businesses, nongovernmental organizations, scientists, athletes, artists, military service members, and students.”

Promoting a Just and Sustainable International Order

Obama’s National Security Strategy supports a “just and sustainable” international order — “just, because it advances mutual interests, protects the rights of all, and holds accountable those who refuse to meet their responsibilities; sustainable because it is based on broadly shared norms and fosters collective action to address common challenges.”

The report says that in order to fight “common challenges,” like “violent extremism, nuclear proliferation, climate change and a changing global economy,” nations must act “responsibly.”  A failure to act responsibly must be met with consequences, including developing “credible and effective alternatives to military action—from sanctions to isolation.”  These alternatives “must be strong enough to change behavior, just as we must reinforce our alliances and our military capabilities.

Obama’s strategy dictates that we be “clear-eyed” about factors that have impeded effective international engagement in the past, but predicts that “the polarization that persists across region, race, and religion will need to be replaced by a galvanizing sense of shared interest.”

Time will tell if Obama’s national security strategy will be effective, but the report is a frank examination of the challenges facing America in the 21st Century and a revealing look at how the current administration plans to address them.

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Below is our list of the top iPhone Apps for Government.

• My Government This app contains all the contact information for all members of Congress and what bills are currently being considered by which committees.  You can also break down spending information by district, state or contractor to stay informed of where your tax dollars are heading.
• MyLanguage Pro This app comes with access to 55 languages as well as frills like a searchable translation history, the ability to rate translations and suggest more accurate wording, transliteration (phonetic sounding-out of languages that use different alphabets), and the ability to enlarge text so you can just show the screen to the cab driver or shopkeeper to get your point across.  Is it perfect? No.  Is it 55 languages in your pocket? Yes.
• Most Wanted Let’s say you’re standing in line at the post office and you spot Osama Bin Laden.  How do you report him to the FBI?  This free app means you’ll never have to ask that question again.  The FBI’s official app includes both the top 10 Most Wanted lists for terrorists and run-of-the-mill fugitives, as well as a list of missing children with photographs.  It even lets you report sightings using your phone’s GPS.
• U.S. Citizenship Test This reference app lets anyone in the ICE community see if they too have what it takes to become a citizen.  It contains all the questions on the citizenship test and even lets you skip questions by shaking your iPhone, as well as the option to have your test results e-mailed to you when you’re done.
• iFAR It’s the Federal Acquisition Regulation in its entirety, with a PDF version in case you need to e-mail someone an excerpt.  This is a really useful resource for anyone in government or government contracting.
• GAO News Reader This app makes GAO’s frequent reports digestible for the iPhone user.  It keeps you updated with both the full and summary versions of all GAO reports, testimony, legal decisions and opinions so you can be the first to know the decision on a particular bid protest.
• FedTravel Having trouble memorizing Federal Travel Regulation 301?  There’s an app for that.  This one contains the whole FTR in a searchable format, and it’s available offline for when you can’t get a signal but still need to know if you’ll get reimbursed for calling a cab.
• The Law Pod Okay, this isn’t just one app, but the Law Pod’s collection of federal criminal and civil procedures are a great resource to anyone at DOJ, or anyone who’s curious whether they’re criminally or civilly liable for a project that goes belly-up.  And at $0.99 per app, they’re a lot cheaper than legal advice

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The VA Acquisition Academy Logo

Currently, the United States suffers from an impending shortfall in acquisitions personnel, a major focus area for “inherently governmental” work.  “In fiscal year 2000, there were 56,000 federal employees to manage $208 billion worth of contracts. Seven years later, there were 61,000 acquisition personnel managing $517 billion. So, while the value of contracts in that period increased by 149%, the workforce devoted to managing them only increased by 9%,” Congressman Gerry Connolly said last year.

Also, “33% of the entire federal workforce has more than 25 years of service, which means they’re coming up on retirement. Another 27% have 15-24 years of service,” noted Congressman Connolly.  “So, when you look at the federal workforce, one of the challenges we’re going to face is, “How do we recruit and maintain a skilled workforce in the future?”

Maybe the answer lies in creating a service academy for acquisitions.  After all, there are service academies for the U.S. Merchant Marine and Health Sciences, so why not acquisitions?  This solution would solve two problems: the lack of trained and qualified acquisitions personnel and the undervaluing of acquisitions in the federal government workforce.

“The undervaluing of the importance of the acquisition workforce is apparent when the budget started skyrocketing, they brought in warfighters, but they didn’t bring in inherently governmental acquisition jobs,” said Jacques Gansler, professor at the University of Maryland and industry expert. “In 1990, we had five general officers with a contracting background.  In 2007, we had none.  If you’re a young major trying to decide what job to go into, if there are no general officers in acquisitions, you’re probably not going to pursue that career path.”

At the very least, creating a Defense Acquisitions University would show up-and-coming military officers that the government is committed to making acquisitions a viable career path.  The VA thought so, establishing an acquisitions academy in Maryland in 2008.  The VA has had a long track record of success, even creating what is arguably the world’s most successful large-scale health information network, so maybe the Department of Defense should follow its lead and create a service academy devoted to acquisitions.

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