Friday, July 13, 2007

Recent privacy issue #1

In a ruling that undoubtedly will not get the rightwing bloviators in a foaming tizzy about the "wacko" Ninth U.S. Circuit Court of Appeals, a panel of that court ruled last week that
[f]ederal agents do not need a search warrant to monitor a suspect's computer use and determine the e-mail addresses and Web pages the suspect is contacting....

[The court] likened computer surveillance to the "pen register" devices that officers use to pinpoint the phone numbers a suspect dials, without listening to the phone calls themselves. ...

Federal law requires court approval for a pen register. But because it is not considered a search, authorities do not need a search warrant, which would require them to show that the surveillance is likely to produce evidence of a crime.

They also do not need a wiretap order, which would require them to show that less intrusive methods of surveillance have failed or would be futile.
In other words, the "court approval" is a technical formality and they essentially are undertaken with no oversight worthy of the term.

And what's the legal basis for pen registers? A 1979 Supreme Court ruling that
callers have no right to conceal from the government the numbers they communicate electronically to the phone companies that carry their calls.
The "logic," if I can disgrace the word enough to call it that, was that because you willingly let the phone company know what numbers you called (without which it would be impossible to place the calls in the first place), you have surrendered all privacy rights to that information. That is, if anybody does know, everybody can know and you have no basis to object. You have "no expectation of privacy."

From the first moment I heard about that decision, I have regarded it as one of the most blindingly stupid (and dangerous) rulings I have ever come across. It has been argued in numerous ways over the years, albeit not always successfully: Passengers in cars, it has been argued, can be searched without probable cause because the car is not their "possession" and so they have "no expectation of privacy" in it. In fact, in 1999, the Supreme Court found that police can search the personal possessions of a passenger in a car as part of a search of the car even if the passenger was not suspected of any crime because "passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars," in the words of Injustice Antonin Scalia's majority opinion.

Police have been specifically allowed to perform warrantless searches of people's trash based on "no expectation of privacy." They have examined people's bank records on the same "logic" as the pen registers: Give anyone the information (in that case by putting your checking account number on the back of a check) and you are saying everybody can know it.

In one case in which the argument ultimately proved unsuccessful, police used thermal detectors to observe a house where they suspected marijuana plants were being grown. They claimed this was not a search because what they were measuring was "waste heat" in which the occupant of the house had "no expectation of privacy."

(In fairness, I must note that in a decision rendered in June, the Supreme Court ruled that when a car is stopped by police, passengers are "seized" along with the driver, which actually can give passengers some minimal protection: The case involved a passenger charged with making speed. He argued the evidence should be suppressed because it arose out of an illegal stop of the car in which he was riding. Lower courts ruled that he wasn't seized at the time of the stop but rather at the time of his arrest and was free to leave before that, so the legality of the original stop was not relevant. The Supreme Court rejected that argument and said the defendant could argue his motion for suppression. The case was sent back for arguments on the motion.

In fairness to the fairness, I have to note as well that this may not have been from a burst of civil liberties concern: Some analysts are saying this "loss" was actually a practical victory for police - for if the Court had ruled otherwise, police would have no legal control over passengers at any traffic stop.)

In Friday's ruling, the Appeals court echoed Scalia's earlier bullshit and said computer users should know that they lose privacy protections over e-mail and Web site addresses because they are sent to the ISP which carries and transmits the information. Again, anybody does know equals everybody can know.

In another one of those cases that prove our political (including judicial) representatives don't have a flipping clue about computers and the internet, the Appeals Court also declared that while the government learns what websites the targeted person visited, "it does not find out the contents of the messages or the particular pages on the Web sites the person viewed." But if you know the URL, you know the flipping content of the site! Just go and look at it. Despite the contention of the ignoramuses on the Appeals Court, knowing a URL is far more revealing than "a list of phone numbers or the outside of a mailed package."

When the Traitor Act allowed the federal goons to obtain the names of the library books a person had checked out, it caused justifiable screams of outrage at the unwarranted intrusion into what people read and think. If someone had tried to claim that it was "only a list of titles, just like only a list of phone numbers," they would have been laughed off the public stage even in these desperate times - because with the title, you just go look at the book to see the content. I'm unable to find any difference between that and recording the URLs someone visits.

This was a terrible, terrible decision better suited to 1984 than to - well, than to any time.

Thanks to Cosmici at Cosmic Iguana for altering me to the decision.

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