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I'm surprised, but glad, that a federal magistrate judge would take the time to write out an article like this. It feels odd to me that a judge - someone who is

I'm surprised, but glad, that a federal magistrate judge would take the time to write out an article like this. It feels odd to me that a judge - someone who is supposed to be neutral - would openly take a stance that prosecutors are overstepping their boundaries within matters of policy. (Of course, one of the functions of a judge is to say when a prosecutor has crossed the line as a matter of law.) I saw a video (https://www.youtube.com/watch?v=eXAkXyysfFU https://www.youtube.com/watch?v=eXAkXyysfFU) discussing one of this judge's recent opinions regarding a series of copyright infringement lawsuits. Orenstein dismissed 13 suits from one single copyright holder against numerous "John Doe" defendants, in which the rights holder conflated people who subscribed to internet service as being the same people who actually committed copyright infringement. Since the plaintiff had no evidence to show that the subscriber and infringer were the same person, Orenstein dismissed the suit without the defendant even knowing he or she was being sued - but Orenstein's basic knowledge, allowing him to make such a ruling unprompted, is the exception, not the rule. We can't depend on having judges like Orenstein or William Alsup or even the Supreme Court to enact good privacy policy. Policymaking is the job of Congress, and while I am happy to see recent Congressional oversight hearings regarding facial recognition, TSA, and the like, I wish that Congress would take bolder stances against police and prosecutorial overreach.

mtgx 7y ago
It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and judges don't even realize. Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use. But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances. For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.
- wahern 7y ago
  Some may not appreciate the depth of the issue, others may simply recognize that there's little that can be done. Common law courts already have relatively strong procedural protections. In some countries like the U.S. these procedural protections are at least in principal inviolable by the legislature, even when they're not explicit in the written constitution. But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods. We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced. IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering. The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug. The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse. [1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.
corebit 7y ago
Congress is such a heavy-handed and blunt tool. There are plenty of better legislatures with more interest in these matters and with less ability to overreach. Federalism is important! There is nothing more democratic than the court system where you are on equal footing against the government.
- nraynaud 7y ago
  ...as long as you have as much money and freedom of movement as the government...
  - bilbo0s 7y ago
    Which is to say, I suppose... that you are not on equal footing with the government.
    - shameshame 7y ago
      Oddly enough if you're corporate entity large enough you're doing better than the government. A friend of mine works as an assistant state's attorney and he says some of the cases are ridiculous when the well funded persons and organizations are involved; sometimes it's one man for the government vs an one or more entire law firms and on cases of important to public interest no less.
User23 7y ago
>Policymaking is the job of Congress This hasn’t been true for 50 years. Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s. If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.
pif 7y ago
> It feels odd to me that a judge - someone who is supposed to be neutral - would openly take a stance... Contrary to what the most stereotypical look-those-nice-shiny-shoes-at-my-feet Swiss may think, neutral does not mean inactive.
- cormacrelf 7y ago
  Actually, there is a ton of effort that goes into being neutral in a military sense. I don’t just mean the usual “Switzerland trains all their citizens and has bridges rigged to blow”. If another belligerent tries to use your territory, to maintain the benefits of neutrality you have to drive them off, lest you be seen as tacitly supporting that belligerent.

mtgx 7y ago

It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and judges don't even realize. Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use. But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances. For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.

wahern 7y ago
Some may not appreciate the depth of the issue, others may simply recognize that there's little that can be done. Common law courts already have relatively strong procedural protections. In some countries like the U.S. these procedural protections are at least in principal inviolable by the legislature, even when they're not explicit in the written constitution. But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods. We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced. IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering. The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug. The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse. [1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.

corebit 7y ago

Congress is such a heavy-handed and blunt tool. There are plenty of better legislatures with more interest in these matters and with less ability to overreach. Federalism is important! There is nothing more democratic than the court system where you are on equal footing against the government.

nraynaud 7y ago
...as long as you have as much money and freedom of movement as the government...
- bilbo0s 7y ago
  Which is to say, I suppose... that you are not on equal footing with the government.
  - shameshame 7y ago
    Oddly enough if you're corporate entity large enough you're doing better than the government. A friend of mine works as an assistant state's attorney and he says some of the cases are ridiculous when the well funded persons and organizations are involved; sometimes it's one man for the government vs an one or more entire law firms and on cases of important to public interest no less.

User23 7y ago

>Policymaking is the job of Congress This hasn’t been true for 50 years. Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s. If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.

pif 7y ago

> It feels odd to me that a judge - someone who is supposed to be neutral - would openly take a stance... Contrary to what the most stereotypical look-those-nice-shiny-shoes-at-my-feet Swiss may think, neutral does not mean inactive.

cormacrelf 7y ago
Actually, there is a ton of effort that goes into being neutral in a military sense. I don’t just mean the usual “Switzerland trains all their citizens and has bridges rigged to blow”. If another belligerent tries to use your territory, to maintain the benefits of neutrality you have to drive them off, lest you be seen as tacitly supporting that belligerent.