[ale] [OT] Liberties

[Ron Frazier (ALE)]

Hi all,

I might as well throw in my 2 cents.  I'm not a lawyer, so anything I say about law is sheer speculation.  The 4th amendment doesn't say anything about any modern technology, such as postal mail, telephone, telegraph, much less computers, email, etc.

However, it's up to our laws and court cases to interpret the meaning of the constitution.  I think the intent of the sender has to come into play.  I think past case law understands this.

Let's say I stand on the street corner and shout my phone number, or put it on a website, or say it on tv or radio.  I am intentionally BROADCASTING the information.  I've made it public, and anyone, including the government and advertisers, can listen.

Now, let's say I tell you my phone number in a private room, or on the phone, or via postal mail, OR by private chat, OR by email.  This is now a private communication, directed only to you.  Technologically, there are ways for intermediate parties like the mail carrier, or the phone company, or the email provider to read that message.  But, they don't have the legal right to.  If they do so, they're breaking the law and are subject to punishment.

Also, in the pre internet pre abuse of power days, neither did the government have a right to monitor those communications, as Sean K said.  The 4th amendment protection should extend to your private communications no matter what the medium.  Note that, if it's on the phone, or by mail, the communications traverses "public" facilities, but snooping on it is still illegal.

You do NOT give up your right to privacy by sending a communication from one place to another, even over "public" facilities.

So, when does the government HAVE the right to listen in our private room, to tap the telephone call, to read the mail, and by extension, to tap the chat or intercept the email; when they have probable cause that a PAST crime has been committed, not necessarily a future crime; and when they get a specific warrant for it.  In the past, we've accepted this violation of our rights under the assumption that we give up those rights by committing a crime and assume that the society has the right to violate our rights once we're criminals, in order to bring us to justice.

(Just as a side note, if I was a criminal, and I discuss criminal acts on the phone, and the government is tapping my communications, am I not incriminating myself?  But, I digress.)

Most people agree that this is an equitable compromise.

Now, the technology available today introduces a new wrinkle.  I think we can agree that society and law enforcement have a legitimate need to prevent and curtail money laundering, drug trafficking, illegal porn, terrorism, etc.  When used properly, the warrants which allow snooping on communications are helpful to society.  We've concluded that that is REASONABLE search and seizure.

But, it is now possible to create an untappable communication, with cryptography, etc.  So, let's say the govt has probable cause against a criminal, and they get a warrant to monitor his communications, but they cannot, because it's encrypted.  This is exactly the problem the law enforcement agencies are complaining loudly about.  What do we do then?  The criminal investigation cannot be pursued through that channel, a very useful channel that would have been available in the past.

I don't know what the answer is.  But, I agree with Sean K that the 4th amendment should extend fully to the modern era and modern gadgets.

In what may be going too far in the other direction, Europe held google liable for intercepting and recording wifi signals that EVERYONE with a wifi radio broadcasts.

It is clear to me, though, that the nsa and other agencies and sometimes even commercial enterprises ARE violating our constitutional rights and possibly existing law in monitoring us without probable cause and without specific warrants.

Sincerely,

Ron



Sean Kilpatrick <kilpatms at gmail.com> wrote:

>Mea Culpa, Mea Culpa, Mea Maxima Culpa!!!!!!
>
>
>For further commentary please reread "1984" by George Orwell.
>In a fit of unbelievable memory loss, I remembered Winston Smith in the
>
>wrong dystopian universe.
>
>Sean
>
>---------------------------------------------------------------------------------------
>
>
>On Wednesday, August 21, 2013 12:48:09 pm Sean Kilpatrick wrote:
>> I must disagree.
>> 
>> Facebook: Yes.  That clearly is a public venue.
>> 
>> Email:  NO!  The government has no more right to read my email
>without
>> a specific warrant than it does to read my snail mail.
>> 
>> Let me quote the Fourth Amendment:
>> 
>> "The right of the people to be secure in their persons, houses,
>papers,
>> and effects, against unreasonable searches and seizures, shall not be
>> violated, and no warrants shall issue, but upon probable cause,
>> supported by oath or affirmation, and particularly describing the
>> place to be searched, and the persons or things to be siezed."
>> 
>> Your smart phone is the same as my briefcase. In the 21st century,
>> electronic records are most assuredly "papers and effects."  This
>> paragraph of the U.S. Constitution requires that the government at
>any
>> level must get a warrant before searching my electronic
>> communications.
>> 
>> How does the government get evidence on suspected criminals:  Easy!
>Its
>> agents get a warrant, which must be specific as to the kinds of
>things
>> being searched for.  The constitution could not be clearer:  no
>warrant
>> = no search nor seizure.
>> 
>> For further commentary on this issue (continuous surveilence by the
>> government on the entire population), please reread Huxley's "Brave
>New
>> World."
>> 
>> Sean




--

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Ron Frazier
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