34 thoughts on “Police vs Privacy pg 111

  1. I second the poster idea. It’d be great for a high school social studies/civics class. The big upshot, as a layman, seems to be “hire a pro to see if there’s an error in the top half, and the only words you should say to a cop who hasn’t arrested you are ‘officer, am I free to go?’ (to determine if it’s a consensual encounter or a stop) and ‘I don’t consent to any searches of my car/bag/person/etc.’ (to clear up the consent issue).”

    Gonna take a stab at the upshot of the next cartoon, too: If they have arrested you, the only words should be your ID information (name, etc — if it’s on your DL, that’d be fair game), and some variant of “I’m invoking my 5th amendment rights,” or “I don’t want to speak to you without a lawyer.”

    • You’ll probably want to chop off the very top bits talking about this being a conclusion and replace that with some context for someone who hasn’t been reading the comic, but I too would buy a poster.

      • Probably because of the size of the image. If printed out at the same resolution I drew it at, it would be about 10 inches wide and 18 feet long.

        Chrome and Firefox don’t care, but apparently Safari wants you to click on the image to see it in its own window, and IE doesn’t even bother.

        I could break it into chunks, but first I’ll have to figure out what size those browsers require. Anyone have an idea what their max image sizes are?

        • I can see it just fine in Safari. On the desktop, that is. On iOS, the comic displays, but is oddly very blurry. My guess is it’s being loaded with a max size set (so it’s basically being thumbnailed), before being blown back up to the “normal” size during rendering. It’s worth noting that the RGBA bitmap data of this image, when decompressed into memory, would take 40.5MB. I expect iOS is trying to keep any image from taking that much bitmap data.

  2. This is the first time in this entire series that I’ve looked at a comic and thought, “an exam on this would be killer.”

    • The best law school exams are the ones where the professor just presumes you all know everything that was covered in class, so you’re given a situation that’s completely new. Then, given what you know about the law and why it is that way, you come up with what the answer ought to be.

      So here is a one-question exam:

      Given what’s been covered so far, write a concise analysis of whether and to what extent the Fourth Amendment protects U.S. citizens against recently-alleged conduct of the NSA involving wiretaps, seizures of communications, and seizures of communication metadata — feel free to use any facts with which you are familiar, and which you believe to be relevant. We have not covered the applicable statutes or the FISA court, but do your best. You have one hour. Begin.

      • My concise answer would be:

        For metadata and unencrypted email, there is already no presumption of privacy, as the information is already entrusted to another party who may then consent to the search; in searching email contents, the situation is analogous to a person consenting to a search of a bag that a friend gave them to deliver to a third party (moral of the story: if you don’t want the NSA easily reading your email, use encryption). For reading metadata, the analogy would be the reading the addresses on a person’s outgoing and incoming mail (a process that the Post Office routinely does for law enforcement without a warrant through the mail covers process, and the Mail Isolation Control and Tracking program). However, for tapping phone conversations, there is established law and precedent that would make the process illegal without proper warrants, something that has been covered extensively in class so far. The legality of FISA-issued warrants may be in question (due to the one-sided nature of a FISA court’s proceedings casting doubt on the legality of the court as a whole), without further clarification I would say that warranted wiretaps, properly executed as we have learned in class so far, would be legal. Wholesale recording without any attempts at oversight or 4th Amendment protections, of course, would be outright illegal.

        Overall, the NSA’s programs seem legal on their face, although there are some areas where they are questionable — specifically the audio recording program, due to the use of FISA warrants — and therefore deserving of further scrutiny by specialists in 4th Amendment law.

        • I don’t claim any expertise in the matter, but you seem to doing most of your reasoning by analogy. I don’t think that’s how it works. You have to reach back to basic legal principles. If you don’t … well … it’s amazing how far lawyers can stretch analogies if you let them.

          From what I’ve seen in these comics, the privacy test you should be using is, “What would an ordinary person expect to keep private from other ordinary people?” That’s why, for instance, the police can use binoculars (ordinary people have those) but they need a warrant to use heat vision.

      • More specifically: the internet is not actually a place where you have any reasonable expectation of privacy. Every packet you send has your name on it and where it came from (MAC and IP address, respectively) and while they can be spoofed, the vast majority of the time neither are. From a technical aspect each packet of data, from the point it leaves your computer, runs into anywhere from ten to thirty different devices and each time it reaches one of those devices it basically says this: “Hi, I’m X from location Y and I’m looking to give packet Z to person T at location R, which way do I go?”

        Realistically any data collected by the NSA leaves your possession the minute it passes your router… and while reading individual emails might be considered a little bit shaky (so long as your email service provider is giving consent though… you *are* storing that information on *their* property leaving it in *their* posession) there’s certainly nothing wrong with pulling search records. That’s like complaining a cop saw what you bought at a store: it’s plain sight.

        • “From a technical aspect each packet of data, from the point it leaves your computer, runs into anywhere from ten to thirty different devices and”

          This is equally true of phone conversations. There should be no doubt about this when considering digital backbones, but even analog backbones do traffic routing and multiplexing.

          Essentially, each and every connection your computer makes has a strong analogy to how phone calls work. At worst it’s like asking a secretary (your computer) to make a call on your behalf. So why would the law be different?

      • Here’s my attempt. I’ve really enjoyed reading this series. Now let’s see how much I’ve taken in!
        —–
        The wiretaps, communications seizures and metadata collection are all Fourth Amendment violations. Lax internal rules and poor oversight allow NSA agents to go far beyond what seems reasonable and necessary to maintain national security. The sheer scale of its operation also creates unique privacy concerns.

        All NSA surveillance activities are acts of the state. They are carried out by, or at the behest of, government employees. So the Fourth Amendment is a consideration.

        The NSA claims that the wiretaps and other communications seizures are constitutionally acceptable because they do not target Americans. But the Fourth Amendment is concerned with effect, not stated intention, and it seems likely that many Americans ARE being caught up in the surveillance net.

        The NSA has “streamlined” the surveillance approval process to what amounts to clicking on a button that states, “There is a greater than 50% chance that the people being surveilled are not US citizens.” Probable cause that a person is nowhere near sufficient to authorize a wiretap.

        By metadata, we mean things such as who placed a phone call, who answered it, the time and duration of the call, and perhaps the location of the cellphone towers that were used to make the call. The NSA pretty collects and warehouses pretty much ALL the metadata. They claim the collection program is acceptable because:

        * the expectation of privacy for metadata is lower
        * just collecting the data is not an invasion of privacy; they are merely warehousing it so that it can be examined should the need arise
        * they have always had the ability to demand call records from phone companies — their new system simply makes it more efficient

        However, there is still some expectation of privacy. (If you disagree, try getting hold of your ex’s phone records, and see how far that gets you.) It therefore befalls the NSA to demonstrate that all searches they carry out are “reasonable”, which they have not done.

        Furthermore, for as long as the NSA hangs on to it, the data warehouse is a threat to privacy in itself. With modern data-mining tools — the kinds that Amazon uses to suggest you buy books about BDSM after you get into Anne Rice novels — and, say, 5 years of American phone records, the NSA could infer a great deal about people’s social relations; perhaps millions of relationships that people would rather keep private would become visible to the NSA.

        But what about terrorism?

        It may be that these violations of privacy are unavoidable side-effects of the effort to protect the United States from its enemies. Under such circumstances, this program may well be reasonable. But it would be constitutionally unacceptable if America just had to take the NSA’s word for it. While the NSA has to operate from the shadows, the NSA could clearly be doing more to make its case.

        Finally, even if the NSA were to demonstrate that its programs were reasonable, there remains the problem of poor oversight. The very existence of the term LOVEINT (illicit surveillance of an ex-lover) suggests that NSA agents are not prevented from misusing the tools placed in their hands.

        • Edit to above answer: I missed the words “is not American” near the end of the fourth paragraph.

          “Probable cause that a person is not American is nowhere near sufficient to authorize a wiretap.”

  3. Frightfully complex — which is, I daresay, the point.

    Love the Toejam and Big Earl cameo, haven’t seen those guys in a long time :)

  4. Question: If one gives consent to a search while drunk, is it considered Valid Consent? I’d think not since it isn’t considered valid at other points of the legal system, but I just want to make sure that applies when it is the state that is asking for your consent on something.

  5. I have never seen a graph so concise and complex at the same time (if that is possible). This is an incredible go to for every law student and knowledgable citizen. Printing it out and showing my professor. Bravo.

  6. I like that rabbit hole. Very deep and illustrative.

    With regards to a detainment in cars on a public road for traffic violations: If I’m not engaged in “traffic,” or more accurately, “trafficking,” is there even any jurisdiction for detainment?

    I’m “traveling” the public roads, not engaging in “traffic,” which is commerce. I’m also not a “Driver,” who is one “employed” in the commercial transportation of persons or goods, but a simple traveler “riding” in a car/automobile

  7. Alice’s rabbit hole is right! I was originally thinking a pinball game would be better… until I saw how REALLY long it is. Horizontal might be better for printing, but I can’t think of a good analogy to use. I zoomed out to see if you’d snuck in an anatomical drawing (start down throat, exit via penis and anus), but it looks like you didn’t.

  8. I asked earlier, but what is the word on random fish and game checkpoints? wouldn’t they not be allowed since the stated purpose is not a vehicle/road safety issue but to check for compliance with hunting and fishing regulations (bag limits, legal size of animal, etc.)?

  9. How long do you have to stay at someone else’s residence in order to get 4th amendment protection? overnight? a week? or is it another test such as if questioned, people who know you would give that address as your place of residence or perhaps the test is where your postal mail is delivered?

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