5 ms·

Low-level federal judges balk at law enforcement asking for electronic evidence

56 points by wfjackson 12y ago

marincounty 12y ago
Some of us really do take notice. Thank you Judge Facciola.
themartorana 12y ago
After watching a tractor trailer carrying an armored personnel carrier painted with the name of a small-town police department rolling down the road just the other day, I welcome just about every check against the unprecedented police state in this country that has arisen over the past 15 years or so. It's of constant frustration that the Founding Fathers didn't include the actual word "privacy" anywhere in the Constitution or Bill of Rights, but I'm one of the people that believe the Fourth Amendment basically covers and makes illegal almost all mass collection and seizure of electronic data that the Federal and local governments seem to believe is their right. I may not be allowed reasonable assumptions of privacy when in a public space, but I do believe my email (stored personally or by Google) and my phone calls and text messages DO have a reasonable expectation of privacy around them, and their collection by government agencies must be extremely tightly scoped, if at all. But that's just me, I suppose. (Edit: missing word.)
- harshreality 12y ago
  The founders could envision quite a lot, but the sorts of privacy violations we're concerned about today (video and audio surveillance, license plate scanning, drones, archives of search histories and personal correspondence and knowledge of personal interests) are beyond what they could have anticipated, because technology. The kind of privacy they were concerned with was government agents personally and physically intruding on private citizens' personal lives. The federal government at that time was not in a position to intrude very much on individuals' privacy, but even so we got the 3rd and 4th amendments. The feds had minimal domestic scope, and there was relatively little federal law enforcement. The founders anticipated some federal government scope creep, but not this.
  - themartorana 12y ago
    They were so short-sighted! How could you not foresee robot drones video recording or remotely raining down death from the sky?! I've know about it since Terminator II for crying out loud.
  - alexqgb 12y ago
    Most people think of "reasonable expectation of privacy" as meaning "what can I reasonably expect the police to respect given all they're technically capable of?" Obviously, the boundaries of this interpretation are tightening like a noose. But the standard can also be interpreted to mean "what is a reasonable level of privacy to expect in order for government of, by, and for the people to operate?" Or as Abraham Lincoln would put it, to "not perish from this Earth." By this standard, an awful lot of what's done by the police and military is wildly unreasonable. Indeed, the extraordinary threat to democracy posed by their near-total lack of restraint is why their orgy of abuse has attracted such shock and dismay. No reasonable person can expect this hyper-secretive, massively financed, and totally contemptuous set of organizations to happily coexist with legitimate democratic rule and the security of individual liberty. By that standard, the Founders clearly anticipated and specifically disallowed what's now unfolding.
  - pessimizer 12y ago
    An electronic intrusion is also a physical intrusion. Electricity is physical; and at some point there is a person carrying a physical machine and physically moving cables around, attempting to overhear two people talking. Someone somewhere is switching on their laptop, plugging a wire into it (or searching for a wireless signal from a physical antenna nearby) and touching a keyboard to send impulses down that wire to interface with the first machine, etc. We act like we think it's magic, so we can rationalize having to come up with a new set of laws that are more permissive to abuses of power. It starts when a court says that a searching a pen register is so small an intrusion as to be insignificant, and that no one could possibly have a "reasonable expectation" of privacy when interacting with someone who has to record their usage in order to bill them. After that, it was an explicitly slippery slope.
  - Zigurd 12y ago
    The Framers were actually very concerned about militarized police and illegal searches. "Redcoats" were a militarized national police. That's how we got radically liberal gun rights, in order to be armed-up like regulars. The US Constitution is, in general, addressed to the government, giving the government a limited set of powers, and not to the people, and, therefore it explicitly says it does not enumerate rights. It assumes your rights are everything outside the scope of government. That was the approach to future-proofing it. So there really is no problem with the Constitution. The problem is the people allow these things to happen.
- d0ugie 12y ago
  As you correctly noted, the Constitution explicitly does not afford a right to privacy and other intangibles. Rather, it protects you and your stuff from physical search and seizure. As the late, great Justice Hugo Black argued[1] in his dissent in Katz, eavesdropping did indeed exist, and existed well before, the time the Constitution was drafted. In ancient times - and to say that the Framers overlooked this is utter poppycock! Yet, for whatever reason, spying on your privacy was dodged when those Framers and the legislative branch wrote the land's laws and amendments to it. I know it's tempting, especially with Roe, but please don't rely on the Supreme Court, an appointed and politically insulated judicial body, to write law just because once in a while they are on the same page as you. Not their job, nor should it be. You know better than that. Want a right to privacy? Write your congressman (or apply for uproxy private beta testing). [1] http://www.law.cornell.edu/supremecourt/text/389/347#writing-USSC_CR_0389_0347_ZD http://www.law.cornell.edu/supremecourt/text/389/347#writing...
  - deleted 12y ago
    [deleted]
    - d0ugie 12y ago
      Privacy encompasses more than physical search. So, no, it is still not in the Constitution. What is in the Constitution is which branches of government do what, and no such convenient overlap is afforded to the judicial branch to allow them any latitude, certainly not a lot, to grease the wheels of societal evolution. What's vague about this amendment to you? That it lacks a footnote saying "Yes we deliberately did not include a right to privacy here, but want to give the Court some wiggle room to do the right thing"?
      - termain 12y ago
        That all depends on what rights are. If they're something that the government exists to protect, than the 9th Amendment can be construed to give the courts that latitude.
  - lugg 12y ago
HistoryInAction 12y ago
Interesting that ECPA isn't explicitly mentioned in this article.

56 points by wfjackson 12y ago

Some of us really do take notice. Thank you Judge Facciola.

After watching a tractor trailer carrying an armored personnel carrier painted with the name of a small-town police department rolling down the road just the other day, I welcome just about every check against the unprecedented police state in this country that has arisen over the past 15 years or so. It's of constant frustration that the Founding Fathers didn't include the actual word "privacy" anywhere in the Constitution or Bill of Rights, but I'm one of the people that believe the Fourth Amendment basically covers and makes illegal almost all mass collection and seizure of electronic data that the Federal and local governments seem to believe is their right. I may not be allowed reasonable assumptions of privacy when in a public space, but I do believe my email (stored personally or by Google) and my phone calls and text messages DO have a reasonable expectation of privacy around them, and their collection by government agencies must be extremely tightly scoped, if at all. But that's just me, I suppose. (Edit: missing word.)

harshreality 12y ago
The founders could envision quite a lot, but the sorts of privacy violations we're concerned about today (video and audio surveillance, license plate scanning, drones, archives of search histories and personal correspondence and knowledge of personal interests) are beyond what they could have anticipated, because technology. The kind of privacy they were concerned with was government agents personally and physically intruding on private citizens' personal lives. The federal government at that time was not in a position to intrude very much on individuals' privacy, but even so we got the 3rd and 4th amendments. The feds had minimal domestic scope, and there was relatively little federal law enforcement. The founders anticipated some federal government scope creep, but not this.
- themartorana 12y ago
  They were so short-sighted! How could you not foresee robot drones video recording or remotely raining down death from the sky?! I've know about it since Terminator II for crying out loud.
- alexqgb 12y ago
  Most people think of "reasonable expectation of privacy" as meaning "what can I reasonably expect the police to respect given all they're technically capable of?" Obviously, the boundaries of this interpretation are tightening like a noose. But the standard can also be interpreted to mean "what is a reasonable level of privacy to expect in order for government of, by, and for the people to operate?" Or as Abraham Lincoln would put it, to "not perish from this Earth." By this standard, an awful lot of what's done by the police and military is wildly unreasonable. Indeed, the extraordinary threat to democracy posed by their near-total lack of restraint is why their orgy of abuse has attracted such shock and dismay. No reasonable person can expect this hyper-secretive, massively financed, and totally contemptuous set of organizations to happily coexist with legitimate democratic rule and the security of individual liberty. By that standard, the Founders clearly anticipated and specifically disallowed what's now unfolding.
- pessimizer 12y ago
  An electronic intrusion is also a physical intrusion. Electricity is physical; and at some point there is a person carrying a physical machine and physically moving cables around, attempting to overhear two people talking. Someone somewhere is switching on their laptop, plugging a wire into it (or searching for a wireless signal from a physical antenna nearby) and touching a keyboard to send impulses down that wire to interface with the first machine, etc. We act like we think it's magic, so we can rationalize having to come up with a new set of laws that are more permissive to abuses of power. It starts when a court says that a searching a pen register is so small an intrusion as to be insignificant, and that no one could possibly have a "reasonable expectation" of privacy when interacting with someone who has to record their usage in order to bill them. After that, it was an explicitly slippery slope.
- Zigurd 12y ago
  The Framers were actually very concerned about militarized police and illegal searches. "Redcoats" were a militarized national police. That's how we got radically liberal gun rights, in order to be armed-up like regulars. The US Constitution is, in general, addressed to the government, giving the government a limited set of powers, and not to the people, and, therefore it explicitly says it does not enumerate rights. It assumes your rights are everything outside the scope of government. That was the approach to future-proofing it. So there really is no problem with the Constitution. The problem is the people allow these things to happen.
d0ugie 12y ago
As you correctly noted, the Constitution explicitly does not afford a right to privacy and other intangibles. Rather, it protects you and your stuff from physical search and seizure. As the late, great Justice Hugo Black argued[1] in his dissent in Katz, eavesdropping did indeed exist, and existed well before, the time the Constitution was drafted. In ancient times - and to say that the Framers overlooked this is utter poppycock! Yet, for whatever reason, spying on your privacy was dodged when those Framers and the legislative branch wrote the land's laws and amendments to it. I know it's tempting, especially with Roe, but please don't rely on the Supreme Court, an appointed and politically insulated judicial body, to write law just because once in a while they are on the same page as you. Not their job, nor should it be. You know better than that. Want a right to privacy? Write your congressman (or apply for uproxy private beta testing). [1] http://www.law.cornell.edu/supremecourt/text/389/347#writing-USSC_CR_0389_0347_ZD http://www.law.cornell.edu/supremecourt/text/389/347#writing...
- deleted 12y ago
  [deleted]
  - d0ugie 12y ago
    Privacy encompasses more than physical search. So, no, it is still not in the Constitution. What is in the Constitution is which branches of government do what, and no such convenient overlap is afforded to the judicial branch to allow them any latitude, certainly not a lot, to grease the wheels of societal evolution. What's vague about this amendment to you? That it lacks a footnote saying "Yes we deliberately did not include a right to privacy here, but want to give the Court some wiggle room to do the right thing"?
    - termain 12y ago
      That all depends on what rights are. If they're something that the government exists to protect, than the 9th Amendment can be construed to give the courts that latitude.
- lugg 12y ago

HistoryInAction 12y ago

Interesting that ECPA isn't explicitly mentioned in this article.