Time to change the model

Our current Fourth Amendment jurisprudence is based upon what now must seem like a quaint concept - the reasonable expectation of privacy. In order to determine if police action constituted a search the court would ask whether or not the target of the action had a reasonable expectation of privacy in what they were doing.

For instance, if the target of police action was talking on a pay phone (if you've never heard nor seen such a thing, just look it up on Google), it was not considered good cricket if the police tapped that phone to listen in on the conversation. In theory a person had a reasonable expectation of privacy when standing inside a phone booth - even though the phone wasn't in their home.

The test also worked against individuals when they had no legitimate expectation of privacy. Airport security is the best example of this. If the government tells you they are going to x-ray every bag and force everyone boarding a plane to walk through a metal detector or body scanner - you can't make a claim that you had a reasonable expectation of privacy regarding the gun in your bag.

But this paradigm has run aground. Justice  Sotomayor wrote about it in her concurring opinion in U.S. v Jones (see "Hey kids, get out of my yard!")

With all of our new shiny gadgets how much of a reasonable expectation of privacy do we have? Our e-mails sit on a server owned by a third party. Our cell phones have GPS devices that track us whenever the phone is on. Our conversations are carried in waves from tower to tower instead of in a cable buried under the ground. When registering products or buying stuff online we voluntarily give a third party our personal information. We post our every thoughts on Facebook and Twitter.

In short, the ways in which we communicate today have rendered the reasonable expectation of privacy test moot. And, as a result, the government has upped the ante by requesting reams and reams of personal data from internet providers and web service companies as a way of getting around that pesky requirement that they get a judge to sign a warrant.

Google publishes a transparency report that lets people know just how many requests for data they have received from government entities.

It turns out that Google received over 21,000 requests from government offices and courts during the second half of 2012 - an increase of 17% over the prior year and 71% over the number of requests in the second half of 2009. The United States government made some 8,438 of those requests. These requests range from the name associated with a given user account to e-mails.

The report also lets us know how often Google has complied either fully or partially when presented with a request. In 2012 Google complied with 66% of the requests, down from 70% the previous year and from 76% back in 2010. Google provided at least some data to the US government 88% of the time - down from previous years.

I guess this is the point we have to decide whether we're glass-half-full or glass-half-empty folks. On the half-empty side, Google is turning over information about 2/3 of the time a government entity requests it - and in almost nine of every ten requests from our government. That's a lot of data being handed over to the government about what we do online.

On the half-full side, the numbers do indicate that Google isn't just handing over the keys to the server upon request. Although los federales get at least some of the info they request 88% of the time, the rest of the requests go straight into the circular file. And there is no doubt that it frustrates government officials when they can't get what they want just by flashing a card that says they work for the government.

Ultimately we are going to have to redefine what "persons, houses, papers and effects" means as well as just what it means to "search or seize" something. Back in the day we used to write letters and drop them in a blue box with a stamp on them. Someone would then deliver those letters to people in other cities and states. Now we just type our messages on a computer and push the send button. Is there really a difference? Does it really matter whether the message is written on paper and placed in a sealed envelope or sent through the aether of cyberspace? We used to talk on corded telephones that required someone to attach a mechanical device if they wanted to listen in on our conversation. Now we talk on cell phones that record our location and send our voices through space. Is there really a difference between the two?

Justice Sotomayor is correct that we need to rethink our paradigm when it comes to search and seizure law. But maybe, just maybe, the answer is to look back to the actual words on the page and decide just what "persons, houses, papers and effects" means. Instead of creating balancing tests and checklists and looking for any excuse to create an exception to the written words, maybe we need to look to the words themselves.

Instead of looking at it from the perspective that everything must be reasonable unless..., maybe we should look at from the perspective that everything must be unreasonable unless...

Twitter just says no

Which online organization actually has the balls to stand up and defend its users' privacy?

It's not Google. It's not Facebook. It's not Wordpress.

It's Twitter.

In the face of government subpoenas asking for users' information, Twitter has stood up and fought. When the US government served Twitter with a subpoena asking for information about four individuals allegedly involved with WikiLeaks, Twitter sought to have the subpoena unsealed so that the users could be notified of the attempts by los federales to access information.

Facebook and Google don't notify their users when they are requested to turn over information in response to a subpoena. So you may never know if you're one of the 4,000 folks the government is seeking information on every year.

And what has Twitter received for daring to stand for principle? Certainly not a lot of praise. The government wants you to believe that Twitter isn't being a good corporate citizen because it refuses to bend to the government's demands.

Twitter should be lauded for its efforts to protect our right to privacy. Twitter shouldn't be condemned, Twitter should be commended for fighting the government's exercise of power.

H/T to Kevin O'Keefe.

My phone the scanner

I discovered a nifty app for my droid last week - Document Scanner by PWN with your Phone. The app allows you to take a picture of a document and convert it to a PDF file that you can store on your phone, e-mail to someone or upload to Google Docs.

There is no limit to the number of pages you can incorporate into a document - and you can add more pages at a later date. The program is easy to use, just a couple of clicks and you've got your PDF file.

I used the app to scan an entire case file the other day and the quality was outstanding. By uploading the PDF file to Google Docs I was able to download it to the hard drive on my desktop and print out the documents later that day.

Document Scanner sells for $3.98 and there is a trial version you can test drive for 15 days at no cost.

Can't stop the flow

Authoritarian leaders have tried for years to block the flow of information to their citizens -- Dubai is but the latest example with the announcement that web service, e-mail and messaging on Blackberry devices will be cut off starting in October. To make matters worse for those doing business in the emirates, the ban will affect tourists as well as those who receive their service through the government's cell provider.

In the old days it was fairly easy to cut off the flow of information -- erect a wall around the town and restrict access to the inner city. Since news traveled by word of mouth, the residents of the walled city had no access to the outside world.

The East German government tried to emulate the ancients by constructing a wall around East Berlin. That kept news from the outside inaccessible for a while, but walls can't block radio waves. Eventually the people behind the wall found out what was going on on the western side and decided they had had enough. When the wall came crashing down it was a reminder that barriers to information were doomed to fail.

The North Korean and Chinese governments have also put forth their best efforts to prevent their citizens from finding out what's happening outside their walls. The Chinese government realized the error of their ways when citizens were accessing the internet through Google's portal in Hong Kong (which was not censored) and threatened to cut off Google's access to the country if it didn't kowtow. Google, putting profit before right, then bowed and kissed the emperor's feet.

And now the government of Dubai has decided that not having access to the encrypted messages sent and received on Blackberry devices makes it harder for them to limit the flow of information in and out of the country. The solution? Cut it off.

When will the dictators learn that the flow of information is something that can't be stopped. Radio waves, television signals and satellite reception don't stop at artificial borders drawn on maps? Not only has technology made it easier to communicate (remember mailing letters), the barriers that limited the number of information-providers have crumbled, increasing the supply of information. Cable news networks, the internet, blogs, cell phones with internet access have made it easier both to receive and to supply information.

The same problem presents itself in the courtroom when a judge admonishes a jury not to do any research on their own -- the panelists have cell phones, internet access and television.Telling them not to use those resources to find out more about any given case is the modern-day equivalent of the Maginot Line.

Google launches legal search engine

There's a new tool out there for anyone needing to conduct legal research on a shoestring. Google Scholar is a new tool for conducting research in scholarly literature. The search engine allows you to conduct searches through both federal and state cases as well as through legal journals.

Type in your search terms and Google will pull cases containing your terms. The cites included in the opinions have hyperlinks to the cases cited. You can also see how and where your case has been cited.

As an example: type in "retrograde extrapolation texas dwi" and the first case on the list is Bagheri v. State. You can read the court's opinion and check out the cited cases in that opinion. Click on "How Cited" and you can review how the case has been cited and where it has been cited. To find out whether the case is still good law you can find the most recent cites and work your way back to the original opinion.

While the system is still in beta, it is a vast improvement over conducting online legal research piecemeal. By bringing these texts and cases together, Google has made it easier to conduct low cost (i.e. free) legal research.