Posts tagged ‘Julian Sanchez’

Hope and Change

Libertarians vote for Republicans when they get tired of Democrat's authoritarian meddling in economics.  Libertarians vote for Democrats when they get tired of Republican's tough-on-crime/terrorism/sex/drugs civil rights violations.  But what to do when Republicans like Bush expand government like Democrats, and Democrats like Obama show little respect for individual liberties:

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.

In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages--a position that puts those companies directly at odds with the Obama administration.

Yahoo has been quietly fighting prosecutors' requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday's brief from Google and the other groups aims to buttress Yahoo's position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.

The government theory in the case seems pretty bizarre to me.  I guess the folks who have been trying to convince me to use PGP aren't so paranoid after all.

But all that aside, it strikes me there is a need for legislative action here to cement electronic privacy.  A couple of weeks ago, Julian Sanchez had a good article describing the crazy state of electronic privacy law -- its worth a read because it is hard to excerpt, the rules being so Byzantine.  But here is one snippet:

Suppose the police want to read your e-mail. To come into your home and look through your computer, of course, they'd need a full Fourth Amendment search warrant based on probable cause. If they want to intercept the e-mail in transit, they have to go still further and meet the "super-warrant" standards of the Wiretap Act. Once it lands on your Internet Service Provider's server, a regular search warrant is once again the standard"”assuming your ISP is providing access "to the public." If it's a more closed network like your work account, your employer is permitted to voluntarily hand it over. But if you read the e-mail, or leave it on the server for more than 180 days, then suddenly your ISP has become a "remote computing service" provider rather than an "electronic communications service provider" vis a vis that e-mail. So instead of a probable cause warrant, police can get a 2703(d) order based on "specific and articulable facts" showing the information is "relevant and material" to an investigation"”a much lower standard"”provided they notify you. Except they can ask a judge to delay notification if they think that would impede the investigation. Oh, unless your ISP is in the Ninth Circuit, where opened e-mails still get the higher level of protection until they've "expired in the normal course," whatever that means.

Unfortunately, this aggressive approach to the Fourth Amendment seems to be well embedded in the Obama administration:

Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.

Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority....Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."

This story was interesting, in a creepy Orwellian sort of way, in that it has turned out to be really, really hard to bring suit against this administration for this crime because people have a hard time demonstrating in court that they have standing to sue.  In effect, one has to show that he has been wiretapped to then sue that the surveillance was illegal, but the information to prove that one has been wiretapped is classified and therefore unavailable.  Only an accidental leak allowed this case to proceed.

Time to Revisit Smith vs. Maryland

Julian Sanchez revisits Smith vs. Maryland, the Supreme Court case currently used to justify letting the government take about any data they want on your life without a warrant.  Sanchez questions the logic of the case, particularly in light of sweeping technology changes since the early 70's:

Part of the problem here is that since the late '70s, we've gone a long way
toward a world in which a huge amount of our most private information is held by
third parties. A huge chunk of my e-mails from the last couple years are stored
on some server owned by Google, where ad-generating software sifts through my
private communications looking for keywords that will allow the company to
display personally-tailored advertisements for me. Now, maybe I'm naive to have
any expectation of privacy in the e-mails sitting on that server, but I do
pretty much expect that nobody at Google is actually looking through my
correspondence and passing it around to their friends. And I at least
didn't expect until recently that some government program would be
sifting through those e-mails to see whether I used the word "jihad" some
suspicious number of times in letters to people in Saudi Arabia.

I had similar concerns about Smith v. Marlyand here.  One of my arguments was:

This exact same logic [used in this case] seemingly applies to any piece of data submitted
to any private third party unless the data is specifically protected
(e.g. medical records).  Sorry, but this is wrong.  I should be able to
have commercial transactions with third parties without the expectation
that the government can take the records for its own use without any
kind of a warrant....

The implication is that by giving a company data for use in a
transaction, we are giving them an unwritten license to do whatever
they want with the data.  Do you believe you are granting this?  Is it
true that you "entertain no expectation of privacy" in such
transactions?  If you agree with this ability, then I assume you also
agree that the government should be able to see all your:

  • Credit card bills
  • Records of who you have emailed
  • Records of which Internet sites you have visited
  • Records of what searches you made in search engines

I also pointed out that since many people spend a lot of money to keep information private (e.g. anonymous surfing software), the market has demonstrated clearly that people, unlike the SCOTUS asserted,  do have an expectation of privacy with such data.