Friday, January 18, 2008


Updated Some years ago, the job that I had involved doing historical research. As part of that, I came across a description of a court case which took place in colonial times in which a woman was accused of being a prostitute. The main witness against her was a neighbor who claimed to have seen on various occasions men entering the woman's house in the evening. So one time, observing an unaccompanied man enter the house, the neighbor went to the woman's window, opened her shutters, and looked in - where, she testified, she saw the two of them getting it on.

What struck me at the time was how no one involved in the case, including the person doing the contemporary description, saw anything odd, questionable, or even unusual about one neighbor just going to another neighbor's house and opening their shutters to look inside to see what they were doing. The concept of privacy just didn't seem to enter the discussion.

Our concepts of privacy and its proper reach have shifted and bubbled dramatically over the years, not always moving in the same direction but overall, for a long time, the slow, grudging trend was to greater privacy, to more respect for personal space not subject to intrusion of uninvited outsiders, including the government. However, the modern, legal concept of privacy is in historical terms quite recent. An essay written in 1997 by a consulting attorney says that
the right of privacy has only recently received legal recognition and is still an evolving area of law. It is generally agreed that the first publication advocating privacy was the article by Warren and Brandeis, The Right to Privacy, 4 Harvard L.R. 193 (1890). However, the codification of principles of privacy law waited until Prosser, Privacy, 48 Cal.L.Rev. 383 (1960), which Prosser subsequently entered into the Second Restatement of Torts at §§ 652A-652I (1977).
Still, recent though it may have been, a point had been reached when the idea of "the right to be left alone" was common currency in our legal system. As former Supreme Court Justice William O. Douglas pointedly noted, "The right to be let alone is indeed the beginning of all freedoms."

However, the reason I emphasized the "legal concept of privacy" is that the legal understanding differs, in some ways dramatically, from our social or cultural understanding. Most people are astonished to realize just how little legal privacy they actually have and how thin are the protections against its invasion by government agents or corporate entities.

For example, while the idea of "the right to be left alone" was gaining ground, the concept of areas with "no expectation of privacy" was also becoming common currency. Certainly its easy to understand how, say, something done openly on the street would not be considered "private" in a legal sense. But the legal meaning of the term actually is far wider: As long ago as 1974, the Supreme Court ruled that you have no reasonable expectation of privacy in any information disclosed to a third party, i.e., anyone beyond you and the government agency that wants the info. That is, the Court has said that in the absence of a specific law declaring otherwise, you have no reasonable expectation of privacy in your bank records: Because the bank knows how much you deposited when and what checks you wrote, the government can, too. No privacy in your phone records: If the phone company knows who you called and who called you, so can the government. In your driving records. Potentially, even your health records, although the government's record of getting access to those is mixed because of the strong tradition of doctor-patient confidentiality even in the absence of a specific law. Theoretically, even a sealed private letter is unsafe: As soon as the recipient reads it, the information in it has been "disclosed" and is therefore subject to government examination.

Related to this is how the Fourth Amendment has been subjected to a death by a thousand cuts in the federal courts over the past couple of decades, usually, where not done by simply declaring there was no privacy to protect, by labeling the intrusion, as they did in the case of Larry Hiibel, "insignificant" and therefore not worthy of concern. The problem is, each "insignificant" intrusion became the new base, inviting another "insignificant" intrusion reaching beyond that one, and so on.

As for the former, that is, cases of "no privacy," two recent examples show just how far down the slippery slope we have gone. One is a Supreme Court decision from 2005. I posted on the case three times; this summary is from one of those posts:
In 1998, Roy Caballes was stopped by Illinois state police for going 71mph in a 65mph zone. After he refused to allow a search of his car, another trooper showed up with a drug-sniffing dog, which indicated contraband was in the trunk. A search revealed a quantity of marijuana, leading Caballes to be sentenced to 12 years in prison and a $256,000 fine.

He claimed the search based on the "sniff" was illegal and in violation of the Fourth Amendment. The trial court rejected the argument but the state Supreme Court reversed on the grounds that the involvement of the dog improperly changed the nature of the situation from a routine traffic stop to a drug investigation.
But the US Supreme Court re-reversed, finding that no, the use of the dog doesn't change anything, it's just fine, there was no privacy violated, nothing unreasonable done.

What was the basis for the conclusion? According to the majority opinion, written by the supposedly liberal John Paul Stevens, Caballes did not have a legitimate expectation of privacy for contraband in the trunk of his car. He said that was different from the expectation that information about perfectly lawful activity will remain private.

In other words, the Court ruled that the search did not violate the Fourth Amendment because something was found - it was, essentially, justified after the fact. If so, what is to stop police from just randomly stopping people to search them or their cars? Even from entering their houses to search? If anything illegal is found, its presence stripped away their "expectation of privacy," so the search was not improper. And if nothing is found, what is the recourse? Sue the cops? In what higher dimension? It really needs to be asked if in light of that decision, the Fourth Amendment still exists in any practical sense.

The other example involves a case reported on earlier this month by the International Herald Tribune, in which it appears that the Ninth Circuit Court of Appeals is about to rule that a computer's hard drive is "just a container" and its contents can be examined and inspected at will by customs officers when you are entering the country.
Rummaging through a computer's hard drive, the government says, is no different than looking through a suitcase. ...

The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer ... deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.
Yeah, and, as the saying goes, if your grandmother had wheels, she's be a wagon. The information on a computer is not in hard copy form and it is a thoroughly bogus argument to say in essence that if it was something other than it is, things would be different than they are so therefore things are different than they are. Consider that hard copy for a moment, copy that required an extra, conscious step to produce: Suppose it was in code. Could the feds demand it be decoded on the grounds that if it wasn't in code, it could easily be read? Why not? What if the information on the computer is encrypted?

What if there's a sealed personal letter in your luggage? Can it be opened and read by one and all at customs because an envelope is "just a container?" Why not?

The IHT article states that
the law requires a little more - a "reasonable suspicion" - when the search is especially invasive, as when the human body is involved.
But, based on the logic employed here, again I have to ask why? Why should there be a distinction? Why can't the body be considered "just a container?" The case arose because a customs agent allegedly found child pornography on the computer of one Michael Arnold when he arrived a LA International a couple of years ago.
Judge Dean Pregerson of U.S. District Court in Los Angeles suppressed the evidence against Arnold.

"Electronic storage devices function as an extension of our own memory," Judge Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."

Computer hard drives can include, Judge Pregerson continued, diaries, letters, medical information, financial records, trade secrets, attorney-client materials and ... information about reporters' "confidential sources and story leads."
It is Judge Pregerson's decision that the Ninth Circuit seems poised to overturn. Why is it that our memories, our private thoughts, plans, records, all sorts of parts of our lives, are fair game, why is it that the privacy of our minds can be pierced and probed at will for no reason beyond random chance or idle curiosity but suddenly officialdom gets all gooey at the privacy of our bodies? Which, frankly, is another way of asking how much longer do you think this separation will be maintained?

Reactions to the case lead me to another concern:
An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there have to be some limits on the government's ability to acquire information.

"Under the government's reasoning," the brief said, "border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign." That is, the brief said, "simply electronic surveillance after the fact."
My concern here is not only with the "electronic surveillance after the fact" but the essentially permanent storage of that information in massive databases of personal data being established and pushed outward by government at all levels from local to federal.

This drive is not new: In the fall of 1995 - during the administration of St. Bill - there was a move (which gathered support from some liberals) to create a massive database of all persons eligible for employment in the United States, created by combining records of the Social Security Administration and the INS. Employers would be required to call a number and provide the name and Social Security number of any potential employee to confirm they are “legal” before they could be hired. The excuse at the time was illegal immigration, and in pursuit of an "answer" to that "problem," members of both parties in both houses of Congress were advocating creation of a national identity card based on Social Security number, a number that would be issued at birth and you would have to have in order not only to work, but to get a driver’s license, go to school, take part in any federal program, get married, and perform a host of other normal social actions; a single number, that is, that could trace you through your entire life from birth to death.

After 9/11, the ground shifted and it became all about "terrorism." The attitude didn't change, the Big Brother response didn't change, the smarmy "It's for your own good" reassurances didn't change, only the excuse did. More simply, the claims changed, the drive for power and control did not.

Now, however, what's being pushed is not, if you will, a de jure national ID card but a de facto one. The program is called Real ID and again, it's something I've posted on a few times. Passed in 2005 with no review, no hearings, and no debate, Real ID would require every state to adopt a federally-approved driver's license and link all their databases containing all of their information on drivers in their state with each other and with the feds. Failure to comply would mean that state's driver's licenses could not be used as identification for any federal purpose, including obtaining federal benefits, getting on an airplane, and even entering a federal courthouse.

Fortunately, the proposal aroused opposition across the political spectrum and generated anger in a number of state legislatures. So far, 17 states have passed legislation or resolutions opposing Real ID - often, though not always, because of the high cost involved. So the feds are turning up the heat, suggesting chaos at airports if states don't meet the initial deadline of this coming May. AP reports:
Homeland Security Secretary Michael Chertoff, who was unveiling final details of the REAL ID Act's rules on Friday, said that if states want their licenses to remain valid for air travel after May 2008, those states must seek a waiver indicating they want more time to comply with the legislation.

Chertoff said that for any state which doesn't seek such a waiver by May, residents of that state will have to use a passport or certain types of federal border-crossing cards if they want to avoid a vigorous secondary screening at airport security.
But opponents scoffed at the idea.
"Are they really prepared to shut those airports down? Which is what effectively would happen if the residents of those states are going to have to go through secondary scrutiny," said Barry Steinhardt, director of the ACLU's technology and liberty program. "This is a scare tactic."
In the face of the resistance, the Department for the Protection of the Fatherland has repeatedly pushed back deadlines and stretched out entry requirements, with the deadline for states to be in compliance now in 2011 and full requirements for all Americans not coming into effect until 2017, all in an effort to get the thing moving. Still and happily, opposition seems to be growing, not shrinking.

All of these programs, of course, are being pitched as necessary to "protect" us. But it's easy to wonder just who and what it is that's being protected, since the net effect of the programs, the intrusions, the limitations on privacy, the slices taken out of the Fourth Amendment, is to reduce the populace to a childlike state, passively accepting direction from, and blindly trusting in, daddy and mommy but especially daddy.

That's why the programs are being sold through a combination of fear and "for your own convenience" - because despite any claims, that drive for a native version of a Ministry of Information containing as much information as possible about as many of us as possible can't possibly be based on its efficacy at protection of the public. Its own record condemns it. For example, last August Raw Story cited a story from the Washington Post saying that
[t]he government's terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list's effectiveness. ...

Slightly more than half of the 20,000 encounters last year were logged by Customs and Border Protection officers, who turned back or handed over to authorities 550 people, most of them foreigners, Customs officials said. FBI and other officials said that they could not provide data on the number of people arrested or denied entry for the other half of the database hits. FBI officials indicated that the number of arrests was small.
Ten thousand encounters leading to 550 referrals is a false hit rate of at least 94.5%. And it would even be that good only if every one of those referrals lead to an arrest or a denial of entry, an very unlikely situation in light of the "small" number of arrests and the unwillingness of the FBI to make any grander claims. That is only slightly better than the brandy-newy airline-passenger-screening SPOT program, which by the use of advanced scientific techniques of behavior observation, has managed to chalk up a false hit rate of at least 99% without making a single terrorism-related arrest.

But that doesn't matter, no siree. The databases and such are still "powerful tools for identifying and tracking suspected terrorists," you betcha. The real problem, we're told, is that the ability to spy doesn't yet go far enough. How much further do they want to go? The sky's the limit - or, more appropriately here, the ether.

It seems that spychief Mike McConnell wants to protect us from terrorist threats in and through cyberspace and has proposed a Cyber-Security Policy, one that he expects, in what's sure to be an understatement, to be "unpopular." Paul Kiel at TPMMuckraker quotes an article in the current New Yorker based on interviews with McConnell:
In order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer, or Web search. "Google has records that could help in a cyber-investigation," he said. Giorgio warned me, "We have a saying in this business: 'Privacy and security are a zero-sum game.'"
Kiel says when the story first broke, it looked like the plan was almost finished - but then House Homeland Security Chairman Bennie Thompson (D-MS) demanded to review it and it apparently has stalled. Wall Street Journal reporter Siobhan Gorman, who broke the story while at the Baltimore Sun, wrote in his WSJ blog that
[p]art of the lawmakers’ ire, [congressional aides] have said, is the paltry information the administration has provided. ... [S]ome congressional aides say that lawmakers have still learned more from the media than they did from the few Top Secret briefings they have received hours before the administration requested money in November to jump start the program.
One time, it seems, when the penchant from secrecy among the WHS* works for the good. But don't expect them to give up on this, as McConnell is still throwing fear-bombs: "My prediction is that we're going to screw around with this until something horrendous happens."

So even though some of the drive for an all-seeing eye has gotten caught in the mire, it is by no means the end. Because as Henry Drummond said, "fanaticism and ignorance is forever busy, and needs feeding."

*WHS = White House Sociopaths

Updated to add the links to the Larry Hiibel case and the "all-seeing eye."

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