Category Archives: Privacy

The Courts Get Another One Right

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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.

VA Union Mendacity

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This tale comes from Kimberly Strassel in her recent op-ed in The Wall Street Journal.

The Federal Labor Relations Authority, the agency that mediates federal labor disputes, earlier this month ruled in favor of this union president [Janice Perry of local lodge 1798 of the National Federation of Federal Employees], in a dispute over whether she need bother to show up at her workplace—the Veterans Affairs Medical Center in Martinsburg, W.Va. According to FLRA documents, this particular VA employee is 100% “official time”—D.C. parlance for federal employees who work every hour of every work day for their union, at the taxpayer’s expense.

In April 2012, this, ahem, VA “employee” broke her ankle and declared that she now wanted to do her nonwork for the VA entirely from the comfort of her home. Veterans Affairs attempted a compromise: Perhaps she could, pretty please, come in two days a week? She refused, and complained to the FLRA that the VA was interfering with her right to act as a union official.

The FLRA’s decision can be seen here.

There are two solutions to this. Disbanding the VA is one. That would eliminate the union’s ability to mishandle our veterans altogether. The other, now come to light, is to eliminate the FLRA altogether. It’s plainly become much too politicized—unionized—to be able to do its statutory job fairly, objectively, and honestly.

Another Thought on Privacy

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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.

What Personal Data? It’s Government’s Data

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And we don’t care about its security.

Security experts worried that 35 state health exchange websites were vulnerable to hackers and were rated as “high risk” for security problems before ObamaCare’s launch….

Fears that the health law’s websites could put consumers at risk have plagued the program’s rollout from the beginning, but the administration told The Associated Press that the documents offer only a partial and “outdated” snapshot of an improving situation.

Never mind that “improving” now doesn’t alter the fact that the security failures existed at the time of the rollout.  And HHS rolled out their ObamaMart, anyway.  For example:

In order to connect to Federal computers, state and other outside systems must undergo a security review and receive an “authority to connect.”

With [Obamacare], states needed approval to connect to a new Federal data hub, an electronic back room that pings Social Security, the Internal Revenue Service, Homeland Security to verify personal details….  The hub handles sensitive information, including income, immigration status and Social Security numbers.

[In an] email from Sept 29, a Sunday two days before the launch, Teresa Fryer, chief information security officer for the Federal Centers for Medicare and Medicaid Services, wrote of the state security approvals, “The front office is signing them whether or not they are a high risk.”

…CMS administrator Marilyn Tavenner approved nine states to connect although the approval document noted that “CMS views the October 1 connections to the nine states as a risk due to the fact that their documentation may not be submitted completely nor reviewed…by Oct. 1.”

The Obama view of citizens’ personal security: “Hey, we got away with it; nothing bad happened.  We think.  It’s all good.”

Health Plans vs Emergency Cash Savings

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In light of the rapidly rising cost of health “coverage,” courtesy of Obamacare, I thought I’d offer a few thoughts comparing health plans with emergency cash savings.  To concretize things, let’s say a medical emergency costs $50,000.  A three-person household consisting of 43- and 41-year old parents and a 16-year-old child, a family with an $85,000 annual income in Collin County, Texas might select a Silver Plan from the ObamaMart that has a $681 monthly premium and that pays 70% of covered medical expenses after deductible and copays (this Plan has a $12,700 annual deductible with copays of $500 for ER and $250 for a hospital stay of any length, but let’s ignore these for this comparison.  On the other hand, let’s say the $50k medical event is a comprised of items that are covered under the Plan.  Also, it should be clear that, even though I’m positing a three-member family, the principles illustrated would apply to a family of any size, from a single person on up).

Health Plan Pros:

  • provides all the coverage it ever will with the first premium

Health Plan Cons:

  • only useable for the covered items
  • premiums paid are lost forever from the perspective of the family—they can’t be recalled and redirected
  • covers low probability, high cost events (under Obamacare, routine, minor expenses, like annual checkups, contraceptives, and so on also are covered; I’ll come back to that below)
  • guaranteed to cover only a fraction of the covered item(s)’ actual expenses—70% of them under this family’s Plan; under Obamacare generally, the per centage can go as low as 60%

Emergency Cash Savings Pros:

  • accumulates money to cover those same low probability, high cost events
  • usable for any expense, and there are no arguments over whether the item is a covered item
  • have chance of paying for 100% of the emergency expense
  • entirely under control of family doing the saving, including how the money is held or invested.  Also, the person doing the saving gets the proceeds of any investing plan, not a Plan provider

Emergency Cash Savings Cons:

  • must be accumulated before there’s enough money to cover the emergency/medical event

Now consider how Health Plan providers (and the insurers in the remaining insurance industry—life, property, etc—generally) make their money.  First they estimate the likelihood of a payout for a covered event (and their actuarial statisticians are very good), then they aggregate that over the number of customers they have for that event coverage, and they arrive at a premium that exactly covers the expected payouts.  That is, if their numbers are right, the collected premiums will exactly pay for the most likely total payouts in, say, a year’s time.  Then the insurers plus up the premium actually charged so as to cover additional costs like R&D, marketing, and so on, and a profit.  The result of this is that the Health Plan buyer (for instance) pays a bit higher premium than he’s expected to collect on the actual occurrence of the medical event(s) for which he bought the Plan.

It seems to me that, at least for a family that’s fundamentally healthy and doesn’t take too many risks with that health (e.g., they eat moderately well and they exercise moderately regularly), they’re better off funding their own Emergency Cash Savings fund.  The pros and cons above favor the ECS, if the family is willing to run the risk of having such an event before their fund is fully loaded.

But look at what’s expected of the family, if it buys the Plan described at the outset: it’s expected to pay to the provider $681 per month, month in and month out, year in and year out, even if the covered medical event(s) never happen.

It occurs to me that if the family can afford to make those payments, it can afford instead to sock them away in its own ECS, ultimately fully funding it.  Doing that, at essentially 0% return (e.g., sticking the money into a bank savings account or a money market fund), means the family will accumulate the $50,000 of the posited medical event in six years.  Oh, and in those six years, the 30% not paid by their Plan also is covered.  Just getting to the $35,000 paid by the Plan will take a skosh over four years.

Now, invest that at a nominal rate, seed it with some startup money, and the family’s ECS is accumulated much more quickly.  And will continue to grow.

Notice, too, that that fund, under the sole control of the family, is not limited to a medical event, or to any particular purpose.  It’s available, also, to repair/replace the roof that got nailed in one of those Texas hail storms.  Or it can be drawn on to replace the car that failed catastrophically.  Or….  You don’t have that flexibility with a Health Plan.  And the Plan costs the same.