Prosecutors Are Shaping Privacy Law(nytimes.com)
nytimes.com
Prosecutors Are Shaping Privacy Law
https://www.nytimes.com/2019/06/13/opinion/privacy-law-enforcment-congress.html
26 comments
It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and judges don't even realize.
Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use.
But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances.
For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.
Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use.
But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances.
For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.
Some may not appreciate the depth of the issue, others may simply recognize that there's little that can be done. Common law courts already have relatively strong procedural protections. In some countries like the U.S. these procedural protections are at least in principal inviolable by the legislature, even when they're not explicit in the written constitution.
But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods.
We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced.
IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering.
The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug.
The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse.
[1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.
But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods.
We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced.
IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering.
The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug.
The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse.
[1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.
> Judges have an independent duty to pursue the truth of the substantive legal matter
Do they? That sounds pretty inquisitorial, rather than adversarial, to me.
Do they? That sounds pretty inquisitorial, rather than adversarial, to me.
Yes, they do: http://25thandclement.com/~william/Evidence/614.pdf
My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric.
I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it.
[1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class.
[2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now....
[3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.
My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric.
I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it.
[1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class.
[2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now....
[3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.
Thank you for the citation. I was not familiar with the Burke quote, or any other support for the view that common law judges have an "independent duty to pursue the truth." I still think this proposition goes too far, as you seem to recognise in footnote 13 of your paper, but I accept that in exceptional cases common law judges can call witnesses.
McCormick § 8 (cited in the notes [1] to the FRE) observes that "it is sometimes said that the judge may have a duty to question witnesses, although the exercise of such a duty does not appear to have been enforced by any appellate court decisions." I am not sure there is any support for a duty to call witnesses, except as a device to permit cross-examination by both parties. Even in 1904, Wigmore [2] noted the "strong but subtle tendency to force" judicial questioning "into the background" and referred to Burke's 1794 speech as a "defensive utterance."
In the UK and Canada, the courts have explicitly rejected the view of a trial as "a scientific exploration with the presiding Judge assuming the role of a research director," urging a cautious approach to the calling and questioning of witnesses which Wigmore regarded as unduly restrictive [3]. I still think that the absence of a judicial duty to pursue the truth is a key feature of the adversary system, but the justice system as a whole does have a truth-seeking purpose, and exceptional cases may call for exceptional judicial powers.
[1] https://www.law.cornell.edu/rules/fre/rule_614
[2] https://archive.org/details/cihm_73411/page/n963
[3] https://www.albertalawreview.com/index.php/ALR/article/downl...
McCormick § 8 (cited in the notes [1] to the FRE) observes that "it is sometimes said that the judge may have a duty to question witnesses, although the exercise of such a duty does not appear to have been enforced by any appellate court decisions." I am not sure there is any support for a duty to call witnesses, except as a device to permit cross-examination by both parties. Even in 1904, Wigmore [2] noted the "strong but subtle tendency to force" judicial questioning "into the background" and referred to Burke's 1794 speech as a "defensive utterance."
In the UK and Canada, the courts have explicitly rejected the view of a trial as "a scientific exploration with the presiding Judge assuming the role of a research director," urging a cautious approach to the calling and questioning of witnesses which Wigmore regarded as unduly restrictive [3]. I still think that the absence of a judicial duty to pursue the truth is a key feature of the adversary system, but the justice system as a whole does have a truth-seeking purpose, and exceptional cases may call for exceptional judicial powers.
[1] https://www.law.cornell.edu/rules/fre/rule_614
[2] https://archive.org/details/cihm_73411/page/n963
[3] https://www.albertalawreview.com/index.php/ALR/article/downl...
> It feels odd to me that a judge - someone who is supposed to be neutral - would openly take a stance...
Contrary to what the most stereotypical look-those-nice-shiny-shoes-at-my-feet Swiss may think, neutral does not mean inactive.
Contrary to what the most stereotypical look-those-nice-shiny-shoes-at-my-feet Swiss may think, neutral does not mean inactive.
Actually, there is a ton of effort that goes into being neutral in a military sense. I don’t just mean the usual “Switzerland trains all their citizens and has bridges rigged to blow”. If another belligerent tries to use your territory, to maintain the benefits of neutrality you have to drive them off, lest you be seen as tacitly supporting that belligerent.
Congress is such a heavy-handed and blunt tool. There are plenty of better legislatures with more interest in these matters and with less ability to overreach. Federalism is important!
There is nothing more democratic than the court system where you are on equal footing against the government.
There is nothing more democratic than the court system where you are on equal footing against the government.
...as long as you have as much money and freedom of movement as the government...
Which is to say, I suppose...
that you are not on equal footing with the government.
that you are not on equal footing with the government.
Oddly enough if you're corporate entity large enough you're doing better than the government. A friend of mine works as an assistant state's attorney and he says some of the cases are ridiculous when the well funded persons and organizations are involved; sometimes it's one man for the government vs an one or more entire law firms and on cases of important to public interest no less.
>Policymaking is the job of Congress
This hasn’t been true for 50 years.
Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s.
If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.
This hasn’t been true for 50 years.
Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s.
If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.
>And ultimately, that’s the problem: A Congress that has failed to keep pace with the times, not prosecutors aggressively using new technological tools.
The title is a bit confusing as the article really hits the problem area, congress.
At least in my curious amateur tech legal guy reading the news role I do feel like we're seeing judges recognizing that "If we allow X, Y constitutional right really doesn't matter anymore....".
Things like the third party doctrine in the US is not aging well and has been passed by with technology raising questions about if there is any expectation of privacy, anywhere.
You can be entirely off the gird and be a mountain man, but the moment someone decides to note something about you on you're phone, it's out there.
The title is a bit confusing as the article really hits the problem area, congress.
At least in my curious amateur tech legal guy reading the news role I do feel like we're seeing judges recognizing that "If we allow X, Y constitutional right really doesn't matter anymore....".
Things like the third party doctrine in the US is not aging well and has been passed by with technology raising questions about if there is any expectation of privacy, anywhere.
You can be entirely off the gird and be a mountain man, but the moment someone decides to note something about you on you're phone, it's out there.
Orenstein was also the judge that ruled against the DoJ/FBI during the iPhone backdoor case.
https://www.nytimes.com/2016/03/01/technology/apple-wins-rul...
https://www.nytimes.com/2016/03/01/technology/apple-wins-rul...
It's all going to come down to what is considered a "reasonable" search which isn't clearly defined in the Constitution. What's unreasonable before a massive terrorist attack is unquestionably reasonable after. Benjamin Franklin has various attributed quotes about the inverse relationship between safety and freedom; it will be interesting to see what the courts decide as reasonable and what sense of permanence will be present in their opinions.
It's worth pointing out that, as with many writings from the eighteenth century, the meanings of words has shifted over time and the original meaning of the phrase is different what it would appear to modern eyes.
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.
Funny how reasonable is meant to be interpreted very narrowly, while trespass is meant to be interpreted incredibly expansively.
Do we just need to replace signs that say "Public Parking" with signs that go on about the parking being conditioned on granting public officials access to chalk tires?
Do we just need to replace signs that say "Public Parking" with signs that go on about the parking being conditioned on granting public officials access to chalk tires?
Thanks for providing a citation! When you say that profiling isn't "reasonable," are you still using the word in the sense of "rational"? That seems inconsistent with your concession that (potentially racist or otherwise unjust) profiling can still be "statistically valid."
I'm still using it to mean "consistent with a principle of law." The idea of "rational" is closer than "proportional," but it still loses a lot of nuance.
The issue with profiling is that the justification is "this person resembles a criminal," rather than "I have reason to believe a crime has been committed." Even if your methods have good precision and recall, this approach is not consistent with an existing principle of law.
The issue with profiling is that the justification is "this person resembles a criminal," rather than "I have reason to believe a crime has been committed." Even if your methods have good precision and recall, this approach is not consistent with an existing principle of law.
Thanks for writing this up. I think this clarifies a lot of the issue
> Benjamin Franklin has various attributed quotes about the inverse relationship between safety and freedom
https://www.npr.org/2015/03/02/390245038/ben-franklins-famou...
https://www.npr.org/2015/03/02/390245038/ben-franklins-famou...
"If Congress won't write laws for this century's technology, courts must craft rules that ensure a fair and orderly review of new investigative methods. For example, the Foreign Intelligence Surveillance Court (which also confronts the tension between effective investigations and privacy) has a system for bringing in independent lawyers called "amici curiae" to argue novel or significant legal issues that occasionally arise when the government asks for technology-based surveillance orders. Those amici can argue in favor of the target's presumed privacy interests but don't represent him and can't give him information about the investigation. Magistrate judges occasionally do the same on an ad hoc basis, but in those cases the amici don't have the same access to information as is allowed in the FISA court, and, like the FISA amici, they can't appeal a lower-court ruling. Giving these independent lawyers the information they need to argue about the legality of novel law enforcement requests, as well as the right to appeal, would at least provide for a more balanced assessment of new surveillance technologies and a quicker way for questions about them to be decided on a national basis."
Not making an analogy, totally different situation, but this reminded me of OUII staff attorneys in ITC patent cases. ITC decisions can have a broad effect on the public, on consumers, and the government can try to address this by naming a third party to the proceedings who is supposed to represent the public interest.
"ITC's Office of Unfair Import investigation (OUII) may take part in an investigation. The OUII acts as a neutral party representing the public interest in the investigations. The OUII participates in the investigations through its staff attorneys, who file briefs, participate in discovery, offer opening statements, and examine witnesses, much like the private parties. The presence of the OUII in ITC investigations creates a unique dynamic when compared to federal district court litigation."
https://www.venable.com/services/practices/section-337-inves...
I guess the reason I thought of this is because according to this judge, privacy law is being made and AFAICT the public interest is not being represented in the process.
Not making an analogy, totally different situation, but this reminded me of OUII staff attorneys in ITC patent cases. ITC decisions can have a broad effect on the public, on consumers, and the government can try to address this by naming a third party to the proceedings who is supposed to represent the public interest.
"ITC's Office of Unfair Import investigation (OUII) may take part in an investigation. The OUII acts as a neutral party representing the public interest in the investigations. The OUII participates in the investigations through its staff attorneys, who file briefs, participate in discovery, offer opening statements, and examine witnesses, much like the private parties. The presence of the OUII in ITC investigations creates a unique dynamic when compared to federal district court litigation."
https://www.venable.com/services/practices/section-337-inves...
I guess the reason I thought of this is because according to this judge, privacy law is being made and AFAICT the public interest is not being represented in the process.
If needed: http://archive.is/eiekb
Oh my... Normally, I'd have an uninformed opinion on this; full of opinion and hyperbole.
However, since this happened to me, my opinions are vastly different. There were paragraphs written below that I deleted, mainly because they would likely land me in prison, or at least (further) complicate my life.
The TLDR is: surveillance and search warrants are granted without true probable cause or appropriate knowledge. By "appropriate knowledge", I mean the judge is in no position to comprehend what he or she is authorizing, or the repercussions of granting it.
However, since this happened to me, my opinions are vastly different. There were paragraphs written below that I deleted, mainly because they would likely land me in prison, or at least (further) complicate my life.
The TLDR is: surveillance and search warrants are granted without true probable cause or appropriate knowledge. By "appropriate knowledge", I mean the judge is in no position to comprehend what he or she is authorizing, or the repercussions of granting it.
The headline is kind of obvious, really.
I saw a video (https://www.youtube.com/watch?v=eXAkXyysfFU) discussing one of this judge's recent opinions regarding a series of copyright infringement lawsuits. Orenstein dismissed 13 suits from one single copyright holder against numerous "John Doe" defendants, in which the rights holder conflated people who subscribed to internet service as being the same people who actually committed copyright infringement. Since the plaintiff had no evidence to show that the subscriber and infringer were the same person, Orenstein dismissed the suit without the defendant even knowing he or she was being sued - but Orenstein's basic knowledge, allowing him to make such a ruling unprompted, is the exception, not the rule.
We can't depend on having judges like Orenstein or William Alsup or even the Supreme Court to enact good privacy policy. Policymaking is the job of Congress, and while I am happy to see recent Congressional oversight hearings regarding facial recognition, TSA, and the like, I wish that Congress would take bolder stances against police and prosecutorial overreach.