Tag Archives: privacy

In Which I both Agree and Disagree

Posted on by
Reply

…with a Supreme Court decision. In Mccullen v Coakley, the Supreme Court unanimously struck down a Massachusetts law that placed a mandatory 35 foot buffer zone around abortion clinics within which anti-abortion protests were prohibited. The purpose of the law, to allow women wishing an abortion unfettered access to the clinic, was met, but overbroadly, according to the court.

That’s the part with which I agree. If we’re going to argue as I have in the past that “free speech zones,” like those on too many college campuses, unconstitutionally restrict free speech, then so does the other side of that coin: non-free speech zones. Either we have free speech in this country, or we do not.

But Chief Justice John Roberts, writing for the Court, displayed a sad misunderstanding of that right of free speech. In his rationale for striking Massachusetts’ law, Roberts wrote

McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone.

And [emphasis added]

As explained, because petitioners in Boston cannot readily identify patients before they enter the zone, they often cannot approach them in time to place literature near their hands….

But this ignores the other person’s (here, the woman seeking the abortion) free speech right to choose what conversation she will hear, especially when that unwanted conversation is directed at her and not, from the public square, to no one in particular (and so equally to everyone). Roberts’ thesis also ignores the intended recipient’s free speech right not to have materials pressed on her without her prior consent.

I disagree with Roberts’ rationale.

In the end, an opinion founded on bad law is itself a bad opinion, even if it reaches the right conclusion.

Cell Phone Searches

Posted on by
5

The Supreme Court ruled Wednesday police must almost always obtain a warrant before searching mobile devices seized when arresting someone….

Chief Justice John Roberts, writing the Court’s unanimously held opinion, said

Modern cellphones aren’t a technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”

Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant[.]

With this ruling the Court, among other things, placed the contents of cell phones outside the permissible warrantless searches allowed pursuant to an arrest that’s for the safety of the police (to ensure, for instance, the arrestee has no weapons or other devices that he could use to harm the arresting officer(s) and/or to attempt escape) and to safeguard related evidence until a warrant otherwise could be obtained.

Someone wrote earlier that this is the ruling that was warranted.

The opinion can be read here.

IRS’ Computers

Posted on by
Reply

During Monday night’s House Oversight Committee hearing, IRS Commissioner John Koskinen tried to deflect blame for the missing Lerner Emails by claiming that the IRS’ computer systems were outdated, obsolete, prone to PC hard drive crashes, and it’s all due to lack of funding:

It is not unusual for computers anywhere to fail, especially at the IRS in light of the aged equipment IRS employees often have to use in light of the continual cuts in its budget these past four years. Since January 1 of this year, for example, over 2,000 employees have suffered hard drive crashes.

The IRS has, despite all those enormous budget cuts, a $1.8 billion IT budget. Regarding those obsolete systems, The New York Times had some thoughts:

After five years, a project to replace the Internal Revenue Service’s aging file-keeping computer system with modern technology is so far behind schedule that the IRS has told the prime contractor that unless it improves its performance by the end of the month [31 December 2003], the government may have no choice but to fire it.

The project, which was expected to cost $8 billion when completed, has spent less than $1 billion so far, but it is already 40% over budget for what it has done, according to the IRS Oversight Board, an independent watchdog body that Congress created in 1998.

And this:

”This is not about a one-time delay,” said Larry Levitan, chairman of the Oversight Board. ”Every single major project under way experienced a significant delay in time and overrun in budget—not two or three out of five, but five out of five. What we have here is a five-year track record of absolute consistency of cost overruns and delayed deliveries.”

In fact, some parts of the computer system upgrade project had fallen 27 months behind schedule in those five years.

There’s this update from Bloomberg:

The upgrade, which will allow the IRS to process the returns on a daily instead of a weekly cycle during the 2012 filing season, is part of a business systems modernization program, begun 12 years ago, that also includes overhauls of the agency’s electronic tax filing and data retrieval systems.

To get even this far, the IRS had to dumb down the project and not include, as originally planned and scheduled, retirement plan and business tax records in the database upgrade part of their project.

Of course, Turn-around Artist and part-time IRS Commissioner John Koskinen knows this history, but that’s a small point here. The larger point is that the IRS has had lots of time and lots of money with which to upgrade its systems—including the PCs its personnel have on their desk, PCs (and OEM hard drives) that cost jingle money compared to their systems upgrade project. In fact, were I to buy an adequate PC from Dell (adequate: no knock on Dell, meaning satisfactory for the job) for each of the 89,500 IRS employees, it would cost me just $125 million out of that $1.8 billion budget, or about 7% of the budget—and this would be expense that wouldn’t need to be repeated for four or five years.

Koskinen’s attempt to blame his “lost” emails on poor Congressional budget decisions is just another example of his, and the IRS’, general mendacity.

Aside: how well were the data on those 2,000 hard drives backed up?

The Courts Get Another One Right

Posted on by
Reply

Quartavius Davis was convicted of robbing, in 2010, seven stores in and around Miami and sentenced to roughly 162 years in prison. His prosecutors based their case, in large part, on cellphone records that placed Davis near the scene.

The evidence included records of the cell towers to which their phones were connected when they placed and received calls, according to court documents.

These data were obtained solely on the basis of a claim “that the records were relevant and material to an ongoing investigation.”

The 11th Circuit demurred. Writing for a unanimous court, Judge David Sentelle wrote in part

[I]t cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.

And [emphasis added]

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.
…
There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. [W]e do not see…Davis’s location outside his expectation of privacy.

And ultimately,

Cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

Yewbetcha.

A 4th Amendment warrant requires a showing of probable cause, a rather stricter standard than just the government claiming an interest. However, the matter isn’t closed with this ruling; the 5th and 6th Circuits have ruled that warrants are not needed in such cases. This points to an eventual Supreme Court case.

The 11th Circuit’s opinion can be read here.

Another Thought on Privacy

Posted on by
Reply

David Kravets, writing in ars technica had one concerning a couple of cases coming before the Supreme Court dealing with the legitimacy of warrantless searches of cell phones and other digital devices pursuant to an otherwise legitimate arrest.

President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?

Indeed. It’s also necessary to keep such ancillary searches in context. The courts long have held that when a man is arrested, the police can pat him down, even do cursory inspections of his car if that’s where he was arrested—look in the trunk, for instance—to be sure he has no weapons that would enable him to harm the arresting officer(s) or devices that would facilitate him attempting to escape from them.

It’s clear, though, or it should be clear, that the electronic contents of a cell phone or of a laptop or…can present no danger of either of those possibilities.

It’s also apparent that the two characters in the cases before the Supreme Court are unsavory at best. It’s also clear that the cursory search of the car David Riley was driving at the time of his arrest was both legitimate and fruitful—the police found weapons secreted in it. However, the persons’ unsavoriness is not an excuse for proceeding with the illegitimate, in my view, searches of their cell phones—there were no dangers to be found in those electrons; a search warrant should have been obtained before the searches conducted.

If such warrantless searches are allowed, what’s to stop government from expanding the scope to the less unsavory among us? To the entirely savory, other than those of whom government disapproves (IRS, anyone)?

There wasn’t even any danger of evidence contained in the phones being destroyed before the warrants could be issued; the cells were safely in police custody.

In one of the two cases, Solicitor General Donald Verrilli Jr made explicit a part of the Federal government’s rationale for such warrantless searches:

[J]ustices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’…’appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.'” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)

Yet in making this argument, Verrilli has shown his utter lack of understanding of our social compact. Our Declaration of Independence and our Constitution are designed to carry out exactly that prior restraint, because ultimately government cannot be trusted to restrain itself. This is what John Adams was talking about when he wrote to his wife

Liberty, once lost, is lost forever.