Category Archives: Privacy

In Which the IRS Gets Away with It

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Judge Reggie Walton, of the DC District Court, dismissed all counts brought by the conservative non-profit, True the Vote, against the IRS for the IRS’ harassment of the organization when it tried to register as a 501(c)(3). The IRS had, on receiving that application

IRS was subjecting [True the Vote founder Catherine Engelbrecht] to multiple rounds of abusive inquiries, with requests to provide every Facebook and Twitter entry I’d every posted, questions about my political aspirations, and demands to know the names of every group I’d ever made presentations to, the content of what I’d said, and where I intended to speak for the coming year.

Under the law defining a c3 organization, none of this information is relevant to the IRS’ application investigation. Indeed, Walton’s ruling explicitly makes no reference to the legitimacy of Engelbrecht’s charges.

Walton dismissed the counts because the IRS—eventually, but before this lawsuit was resolved—registered True the Vote as the c3 for which it had applied.

Unless an actual, ongoing controversy exists in this case, this Court is without power to decide it….

Because

The defendants’ grant of tax-exempt status to the plaintiff, and the defendants’ suspension of the alleged IRS targeting scheme during the tax-exempt application process, including remedial steps to address the alleged conduct, coupled with the reduced “concern about the recurrence of objectionable behavior” government actors….

Never mind that this is a purely voluntary “suspension,” subject to removal at IRS whim, conservative speech remains chilled, other attacks against other conservative entities remain (think Wisconsin), and so on. The present assault has stopped, so there’s nothing for a good judge to decide.

Let me see if my understanding of this is correct. If I stop beating my wife, wholly voluntarily and on my own initiative, I’m home free? My wife has no recourse? Never mind that I’ve only voluntarily suspended the beatings, never mind that my wife remains intimidated and vulnerable, I’ve got nothing to worry about from any court?

Walton’s ruling can be seen here.

A Number of Misunderstandings

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Los Angeles passed an ordinance requiring hotel operators to give up data in their guest registers to the police, even when they don’t have a warrant.

The ordinance, approved by the city in 2006, requires hotels to collect and maintain guest information such as name and address, the number of people in the guest’s party, vehicle information, arrival and checkout dates, room number, and method of payment. Hotel operators who fail to comply with it face as many as six months behind bars and a $1,000 fine.

A motel operator demurred, and at this point, the 9th Circuit agrees: they struck the ordinance as unconstitutional under the 4th Amendment.

There are a couple of fundamental misunderstandings, though. One is in the 9th‘s ruling, paraphrased by Joe Palazzolo at the above link:

[H]otels have an interest in keeping guest records private, even if the guests themselves have no such privacy rights because they willingly give their information to a third party.

Guests do have a legitimate expectation of privacy regarding “their information,” though. They’re not giving their information to “a” third party; they’re giving it to a particular third party as a necessary thing so that the particular third party can provide the contracted service. Moreover, much of the information that is given over is not necessary for the transaction to occur; it’s mandated by a different third party—a government entity, for the government’s convenience.

A second misunderstanding is in the argument offered by LA’s lawyers.

These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack[.]

Say that’s all true. Get a warrant. Time hardly seems of the essence in these hypotheticals, even with the apocalyptically offered “homeland terrorist attack:” the cops are unlikely to be near the hotel or motel when an attack goes in. If time really is of the essence, come armed with a warrant in the first place; they’re disappointingly easy to get.

A third misunderstanding is in Judge Richard Tallman’s dissent, again summarized by Palazzolo.

[T]he hoteliers challenging the ordinance failed to show that police were applying the statute in an unconstitutional way.

The hoteliers had no requirement to do so. The law must be constitutional in the first place; its application by the police is wholly irrelevant after its unconstitutionality is shown.

The matter now is before the Supreme Court, and we’ll learn later who’s right. Legally, anyway.

Even the Brits

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This is an amazing development for the authors of the Magna Carta. That charter, recall, codified for the first time in Anglo-American history, limits to government’s (king’s at the time) right to intrude into a man’s private affairs and possessions except under some severely constrained conditions: due process of law.

This is that amazement:

Registered gun owners in the United Kingdom are now subject to unannounced visits to their homes under new guidance that allows police to inspect firearms storage without a warrant.

The new policy from the British Home Office went into effect Oct 15, permitting police and constabularies to conduct surprise home visits to legitimate gun owners.

Why else, it turns out, have a gun registry, except to identify those honest citizens in the best position to resist excessive government—like the barons and others who resisted King John’s excesses? Like those later colonial Americans who resisted King George III’s excesses?

And this is where our own gun control lobby and the Progressives in our own government are headed.

In Which the Florida Supreme Court Gets One Right

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Police in Florida aren’t allowed to use a cellphone to track someone’s movements according to a sweeping new ruling from the Florida Supreme Court.

The court by a 5-2 vote ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

The police had a warrant to tap his cell phone calls, but that warrant didn’t include authorization to use his cell phone to track him.

This is entirely appropriate. If the police want to invade a citizen’s privacy, they need either to convince a court that they have probable cause for that, or they need to actually and overtly invade: in the present context, to assign a cop to follow him around.

One of the two dissenting justices, Charles Canady, though, misunderstands the concept of privacy. He cited the US 5th Circuit as follows:

Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information,…he voluntarily conveys his cell site data each time he makes a call.

Canady added under his own thinking,

Given the known realities of how cell phones operate—realities understood and accepted by all but the most unaware—…cell phone users have neither a subjective expectation of privacy nor an objectively reasonable expectation of privacy regarding the cell site information generated by their cell phones.

Of course the cell phone user does, on both counts. Notice, as Canady apparently does not, that the voluntary conveyance of the information is to a private enterprise, not to a government entity. We citizens can, and we do, have a very strong expectation of privacy regarding any information we surrender to a private entity as a necessary requirement for that entity to provide the service for which we’re paying it.

Notice further, that the caller expects that private enterprise to safeguard our private information, whether it’s surrendered so that the enterprise becomes able to provide the contracted service or whether it’s surrendered more voluntarily as a non-necessary adjunct to that service. This is made clear by the public’s—us people’s—hue and cry over such trackings, by any entity, commercial or otherwise.

If a government entity wants to invade a man’s privacy, it must convince a court of sufficient probable cause as to get a warrant authorizing the invasion. As the police understood in the present case, when they got the warrant to tap Tracey’s cell phone calls—and chose not to get a warrant to collect his location data.

The Court’s ruling, including Canady’s dissent, can be seen here.

In Which a Political Party Gets It

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…and the IOC doesn’t.

Norway, led by its Conservative Party, has declined to support a bid for the 2022 Winter Olympics originally offered by its capital, Oslo. The nation was put off by cost concerns—the 2014 Sochi Winter Games ran to $50 billion—and they were put off by IOC…let’s call it arrogance.

Among other IOC demands were requirements for a cocktail reception with the King of Norway (they’re a constitutional monarchy) and special traffic lanes set aside in the middle of Oslo’s busy thoroughfares so that fans of the Games could have priority and their own paths to the games.

Of course the IOC denies all this. IOC spokesman Mark Adams blamed the Norwegian media of misreporting the situation.

The documents have been widely and often deliberately misreported. Even a cursory glance would show they contain suggestions and guidance, not demands. These were gathered from previous games organizers and are advice on how to improve the games experience for all.

Of course. It couldn’t possibly that the only purpose of including such “suggestions” in their request for proposal is that the IOC intended them to be met; never say that these were words to the wise and that not satisfying them would count against Oslo in its competition for the hosting.

And [emphasis added]

The IOC’s 7,000-page manual on running the games does say that a pre-Olympic gathering for IOC members should include a meeting with the head of state, and insists upon a strict protocol for the order in which he should greet his guests and seating in the stadium.

The manual on protocols also says the opening ceremony “is usually preceded by an aperitif and followed by a reception.”

Because it really is all about the IOC members and not the athletes or the games.

Norway also remembered this little tidbit from the ’14 Winter Games:

…the IOC…reprimanded four Norwegian female cross-country skiers in Sochi for wearing black armbands in memory of an athlete’s brother who died on the eve of the games.

No, IOC, you don’t get a special party or to hobnob with government leadership just because you think you’re special.

No, IOC, Games attendees and fans don’t get a special lane through traffic on your host country’s busy roads and streets.

You guys aren’t as special as you think you are. You are, though, just as precious as you think.