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45 thoughts on “Police vs Privacy pg 111

  1. Jeff said:

    You have the YES and NO arrows reversed for the randomness requirement of traffic checkpoints. (Continuing to read, may be more.)

    • Jeff said:

      That’s the only thing that leaps out at me. Good work! (I shudder to think how this’ll be laid out in the book, though.)

  2. Tyler said:

    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.”

  3. Jason said:

    I have to go in with everyone else on the poster idea. It’s so high quality-above-high quality.

    • Andrew Farrell said:

      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.

    • Alectric said:

      I can see it in Firefox but not IE.

      • 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?

        • Kevin Ballard said:

          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.

          • I broke it into chunks. Hardly an ideal solution, but now it seems to work just fine on all browsers.

  4. Superglucose said:

    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.

      • Tyler said:

        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.

        • Peter McArthur said:

          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.

          • Andrew D. said:

            I agree with the objection to reasoning by analogy—but that’s how law is done. I don’t think for example that the reasoning that metadata is fair game because it’s like the outside of an envelope is right—the subject line is especially revealing, and there are other clues that go a lot deeper than old-fashioned email, as the NSA has ably shown. BTW encryption is a suspect protection now that it’s clear the gov’t (and others?) are subverting or exploiting public encryption code, or bugging the source/destination computers directly (both activating warrant concerns I hope!).

        • Jean said:

          Note that if you use encryption, it’s taken as a sign of guilt.
          Further, the encryption can be broken, or it’s illegal by law.
          We have a ruling that the NSA SOBs can take the metadata.
          they also take the data – and if email is considered “open,” why is regular mail (officially) considered to be private? I mean, in that case, you are GIVING IT TO the government, directly. (Yet tampering with the mail is a federal offense, mind.) Also bear in mind that there were PRIVATE alternatives to the USPS until Uncle Sugar decided he should be the only one allowed to do mail. (Making post roads is a power of fedgov; mandating use of Postal service isn’t, and they’ve done an end-run around the intent and spirit of the law – you can send a letter via FedEx, DHL, or UPS, for example, but USPS is able to “compete” on price – because IT is Subsidized by tax dollars, and UPS, DHL, FedEx, and all the smaller couriers need to actually make a profit.)

          But that is muddying the waters.

          The NSA is the rough equivalent of using a drag-net for fishing. It SHOULD be illegal as it affects EVERYONE, all the time – but hasn’t been used to recover Hitlary’s emails, for example. So, it’s being applied improperly, too – one set of laws for thee, another for ME…. Making it a violation of the 14th amendment (which should also apply to the LEO Bill of Rights, which allows them to come in for questioning of an incident at their convenience after a “cooling off” period, and only for certain lengths of time – no marathon sessions, potty, food, and water breaks… No need to be cuffed to a table, for example.)

          Further, the capture of every text, SMS, email, and even phone call should be a BLATANT Fourth amendment violation.
          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 seized.

          So, let’s see… you MIGHT do something illegal, or know someone who MIGHT do something illegal, so we’re going to take a copy of EVERYTHING you say and do online, via phone, via electronic communications, and mush it all into a database for data-mining, and hope it finds something we can nail you for when we get to it. [See “Three Felonies a Day” on amazon.]

          As for the metadata part, there’s still no REASON to collect it on “might” – but it’s been ruled LEGAL.
          Hence my consistent acerbic nature towards the pigs. They’ve EARNED it.
          And I only have some old speeding tickets – how much more real and palpable must be the hatred of someone wrongly imprisoned, or Nifonged…?

          It leads to the sort of corruption that allows this program to be “Constitutional” “Because we feel safer, and want to classify and categorize you sheep with metadata checks establishing your normal routines, habits, purchases, locations, and social associations.”

      • Superglucose said:

        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.

        • mahuja said:

          “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?

          • Jean said:

            How is that different from the postal service?
            I mean, you give it to someone behind the counter, who is a KNOWN Federal employee. Why are they officially not allowed to open and read your mail? And every subsequent federal employee as well, until it arrives (slightly used) at the destination?

      • Peter McArthur said:

        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.

        • Peter McArthur said:

          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.”

        • WJS said:

          You seem to be missing one of the first points of the 4th amd. section: The 4th amd. as interpreted today is exclusively an exclusionary rule. All it says is that any information the NSA come up with can’t be used as evidence in a criminal court. It doesn’t say that they aren’t allowed to do such surveillance to provide information for military forces outside the US. (Well, actually it does, say that, but as a matter of law that’s not what it really means…)

      • Andrew Farrell said:

        When has the NSA ever brought criminal charges though?
        Without criminal charges, there are no suppression hearings and thus no appeals that the Supreme Court decides to hear. There also isn’t any evidence thrown out or administrative reprimand because the warrant was executed improperly.

      • B.J. said:

        Late to the test, but here’s my answer.

        First, none of the NSA’s information-gathering is prohibited by the exclusionary rule. They can gather all the data that they want, and the only time that the Fourth Amendment becomes relevant is if they want to use it in court.

        Now, if they try to use this in court, the Fourth Amendment applies, and we have rights. In the case of the wiretaps, I think that any reasonable, impartial judge would laugh at the NSA before excluding them with extreme prejudice. First off, wiretaps are often started (or entirely executed) without warrants – those are out. Second, if I’m not mistaken, the FISA enabling act’s requirements before issuing a warrant do not include all of the necessary elements. A wiretap warrant can be issued upon probable cause that a person is an agent of a foreign power – which is not a specific crime. There are no crimes, in fact, enumerated in the FISA. Therefore, the FISC cannot issue wiretap warrants that will stand up in court.

        If other evidence was found after the wiretap following leads that the wiretap brought up, I’d suggest that the NSA fold their case then and there.

        Now, metadata and email…In general, the NSA asks email providers for permission to take a look, or claims said data through a “give me” subpoena. If the email provider cooperates without coercion, it’s legal (your emails are controlled by Gmail, not you). If the email provider gives access by a court order, it’s legal (that’s a Fifth Amendment issue, not Fourth Amendment). However, without either that consent or a court order, a warrantless search is clearly a bad one. Furthermore, keeping someone’s communications under surveillance without their consent is a wiretap (I do not believe that there is any kind of warrant for physically breaking into someone’s home and staying there as part of a stakeout, so the only way to justify this is as a wiretap warrant), and therefore bad. A single search of a server, by contrast, would be a search for electronic documents. If there were a warrant, then it would be a bad warrant, but I would presume that NSA agents (who haven’t taken law classes) think that their actions are legal, so I would presume good faith on their part, hence making it a lawful search, and so the results could be used in court.

  5. Tualha said:

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

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

  6. Alex Lockwood said:

    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.

    • Courts have held that, if the police had reason to believe you were too drunk to know what you were doing, then it’s not valid consent.

      • ShireNomad said:

        Judge: What did you say you were pulling him over for again?
        Cop: Drunk driv– crap.

        • htg said:

          However, note that drunk drivers can (and should!) be arrested, upon which the cops can do ‘Search Incident to Lawful Arrest’ (see comic).

          I presume, anyway.

          • WJS said:

            Isn’t that only looking for stuff relevant to the arrest in question? They can still use things related to other crimes if they find them, but what possible evidence could they be searching for in a DUI case? The only piece of relevant evidence is the person themselves.

          • Jean said:

            Presuming no one has been injured, why should “Drunk” drivers be arrested?
            And what makes them “Drunk”? Too much alcohol in their breath? I mean, given that diner rolls ferment in your mouth and make you blow 0.03….
            And what else shall we decide is illegal? Driving While Black? Driving While Jewish?
            Having a CCW? (It’s been the reason for arrest, and allowed to stand in court even when video showed the incident for the stop to be a fabrication.)

            You are arguing preemptive law. It is not a “slippery slope,” it is quicksand to a police state.
            We’re up to our necks already…

            E.G., Grandpa, hard of hearing, mostly blind, on 15 prescription meds that induce memory loss and can cause erratic heartbeat, heart attack, stroke – he’s OK to drive.
            But the Formula 1 or NASCAR professional driver is unable to drive because he had a beer with dinner (the legal definition of drunk per BAC.)
            How about the trucker, who has spent the last 15 years driving?
            What about the housewife who is on codeine cough syrup? is SHE OK to drive…? Why or why not?
            Someone who smoked a joint 5 days ago, is that person sober to drive? (THC, which is what they test for, stays in the system for 7 days, IIRC.)

            This has been partially answered. San Francisco is using video cameras with predictive behavior software, checking EVERYONE for “suspicious behavior.” Sousveillance….

  7. bob@bob.com said:

    Love the Descent inclusion.

  8. dhugh said:

    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.

  9. Librarian said:

    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

    • jean said:

      It’s the concept of “implied consent.” It’s in the fine-print of your Driver’s License.
      You accept the contract under duress, but the courts won’t allow that argument. You accept it under duress because there’s no reasonable alternative. E.G., I live in the Boston area; there isn’t even a bus stop within a mile of my residence, so a car is a “necessity” – though they argue I could walk or ride a bicycle. (Bear in mind, they also claim jurisdiction over bicycles, and even pedestrians…. No joke, they want to f*ck with you, they’ll find a reason.)

      Anyway – in order to register the car, I MUST have insurance. I can’t drive without registering it, according to the Almighty State. I also need a Driver’s License, making me a Commercial Driver by statute – now I’m covered under the Commerce Clause of the Constitution. I’m engaged in “commercial” activities by dint of using the public roads, under the requirement I demonstrate proficiency to THEIR standards in MY vehicle (which, if I don’t pay extortion, I mean fees and taxes, on, they will steal. Insurance is one such “fee.”)

      So it’s a Faustian deal without the benefits Faust got. You are PRESUMED drunk, for example. PRESUMED to be engaged in a criminal enterprise (see civil asset forfeiture.) Subject to their Jurisdiction, because you’re on the PUBLIC (STATE) Road… Which includes the curtilage of your property, and your front yard, too (can’t park in the yard), and even the BACK yard (can’t park it there), and in some hellholes, I mean jurisdictions the GARAGE is included as well – and they will show up to search your property to ensure the car that isn’t registered is DESTROYED. Being covered by a tarp in your garage isn’t acceptable.

      EricPetersAutos.com has multiple discussions along these lines.

  10. KW said:

    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.

  11. Dhamon said:

    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.)?

  12. Harvey said:

    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?

  13. dude this graph got way too complicated to follow halfway through due to your width constraint, I’d appreciate a nice flowchart

  14. Thomas said:

    Joust! :D Nifty reference.

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