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...

In the spotlight

"There is no doubt (the email) is racist. It wasn't forwarded for that purpose. If anything, it was political." -- US District Judge Richard Cebull

That damn internet thing (again)! Surely that's what Judge Cebull is saying to himself over and over again after being caught red-handed forwarding a racist e-mail implying that President Obama was the offspring of his mother and a dog.

The racist part I get. But I'm not so clear about how it's political.

Cebull says he's written other federal judges in Montana apologizing for his conduct and vows he won't ever again send an email from his office that's not business-related.

Of course what's left unsaid is whether or not he'll send such e-mails from his home computer or his phone or his tablet or whatever other devices he may or may not own.

Now judges are human. They have their own personal prejudices and biases. They have their own political and religious beliefs. But most have the good sense to keep those things under wraps while sitting on the bench. Judge Cebull not only showed incredibly poor judgment in forwarding the email, he also bared his prejudice for all the world to see.

"It was not intended by me in any way to become public," Cebull said.  "I apologize to anybody who is offended by it, and I can obviously understand why people would be offended."

Well, no shit. It doesn't look good for a federal judge to be passing along racist e-mails. And then, or course, we have the non-apology apology. Judge Cebull can't even man up and just apologize for his actions, he has to couch it in terms of whether anyone was offended or not. He should be apologizing to everyone - including his buddies whom he thought would get a kick out of it.

Back in the days before the internet we could all have our own little secrets. A letter to a friend was unlikely to fall into anyone else's hands. What was said in public wasn't broadcast immediately. Hell, what was said out loud probably wasn't even recorded for posterity's sake. There was always time to fix and ill-timed retort.

But with texting and tweeting and e-mail  and blogs and Facebook, what we say is instantly transmitted throughout cyberspace. And once it's out there - it's out there. Too late to take it back. Your name is attached to it and it will go far.

Judge Cebull forwarded an e-mail he received (because for some reason he found it worthy of forwarding) to some friends who, in turn, forwarded it to some more friends. Somewhere along the way someone forwarded it to a friend who was a reporter. And there, in black and white, was Judge Cebull's name.

Had he not been so careless we may never have known what an ignorant bigot Judge Cebull is. But the internet casts a bright light on us all.

Ever hear the one about the cockroach wearing a black robe?

See also:

"Should Congress investigate federal judge who forwarded racially charged e-mail about President Obama?" Sentencing Law and Policy (March 1, 2012)

Using the children as a shield

What could possibly go wrong when our legislators set out to do "something for the children?"

I mean, there's no way that Congress would use the kiddos as a smokescreen to enact a piece of legislation that would make it easier for law enforcement to collect data on the citizenry. Right?

Take just a second to think about that. HR 1981, otherwise known as the Protecting Children from Internet Pornographers Act of 2011, is yet another power grab by the state promoted under the guise of protecting someone from something terrible.

Under HR 1981, internet service providers would be required to keep a log of the temporary network addresses (IP addresses) assigned to its subscribers so that los federales can access the information should they get a bee up their butt that someone has been looking at something naughty on the internet.

Under H.R. 1981, which has the misleading title of Protecting Children From Internet Pornographers Act of 2011, Congress would force commercial Internet access providers to keep for one year a “log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section.”  Let’s break that down into simple terms.

An IP address is a string of numbers that indicates the general location where someone accessed the internet. The IP address isn't unique to the user. It isn't even unique to the computer. If you use an unsecured wireless system someone can sit in the street in front of your house and access the internet using your connection. The IP address would be the same as if you accessed it from your study.

But the bigger problem is having Big Brother looking over your shoulder while you cruise the internet. Sure, there are people looking at naughty pictures on their computer screens. There are also people following the Syrian government as it kills off its own people. There may even be some folks writing subversive blog posts about the overreaching of the state.

We all have a right to be left alone. It is, as I have said before, the most fundamental right we have. We shouldn't have to worry about what records our internet service providers keep regarding our browsing. Hell, even the folks over on the right are upset about it.

H.R. 1981, one of the newest pieces of internet legislation to be debated, is a huge threat to our privacy. Under the auspices of protecting our children from pornography, it is simply a cleverly-disguised way to force online service providers to spy on your online activities and provide that information to the government.

There's a reason those in power couch their intentions to intrude into our private lives the way they do. Who on earth would be against a bill designed to protect our youth from the scourge of drugs? Who would opposed a bill designed to protect our nation from terrorists? Would would dare challenge a bill meant to protect our children from the pornographers?

But it's all just a ruse. All the state needs is for that tent to be lifted just high enough to get its nose underneath it. And once that nose is under the tent it's just a matter of time until the whole damn camel is snuggling up next to you in your sleeping bag.

By then it's too late.