Tag Archives: Riley v. California

Government – Just Leave Us Alone!

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There was a time when a diary that you wrote in long hand, in India ink, kept confidential in a false drawer in your worn mahogany desk, was private, and safe from the prying eyes of anyone including our government – as a matter of law.

Not so anymore.

I advise my clients these days to destroy their mental notes.

From the vantage of a criminal defense lawyer (and “recovering” federal and state prosecutor), I’ve seen the most craven governmental intrusions into individual privacy – shocking to any Accused person who never before had to endure the unwanted embrace of a criminal prosecution.

Little has improved since the author’s privacy article published in 1972

Little has improved since the author’s privacy article published in 1972

Here in Loudoun County, if you’re arrested and denied bail, when you are jailed in Loudoun’s Adult Detention Center (ADC), don’t make the mistake of talking about your case on the jail house phone with your wife (or anyone else), because everything you say is taped – and they’ll use it against you.

We have an “expectation” of what is private, predicated upon our 4th Amendment right to be secure in our person and property, and the penumbra of other constitutional rights.  This is what must be protected.

Who would expect it was right and just to intercept a family conversation when the Accused has no other way to talk to his family?

We believe we get to control what information is circulated about ourselves – in or out of jail.

But practice and the law is more complicated than what we might fairly expect and what common sense dictates.

When I was a puppy law student, I was concerned with privacy, so much so that I wrote about it for our journal, the Columbia Human Rights Law Review.

Our technology was relatively primitive in the 70’s.   Indeed, I wrote how intrusions into a person’s privacy might not have been possible “if the information was manually handled and manually disseminated.”  Continue reading →

Unprotected text

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iosEncryptionIf you have a cell phone with robust encryption, it may deny entry to unwanted intruders who wish to rifle through your most personal information.

Our government prefers to be opaque when it comes to telling us what it’s doing, and yet is astonished when we cherish personal privacy, and defend it with various tools including encryption.

According to former CIA analyst, Edward Snowden, a fugitive somewhere in Russia these days, our government didn’t ask permission or authority when it invaded our Google and Yahoo accounts, nor when the NSA helped conduct global surveillance programs in conjunction with pliable Telcom companies and foreign governments.

When we were a collection of colonies, English authorities sought to enforce the tax laws using “writs of assistance” to enter any house they chose, to look for “contraband,” and to demand that you help them to invade your privacy.

When we won our revolution, we wrote a bill of rights to guard against these unwarranted invasions.

But now our privacy can be compromised without physically entering a home, given modern technological “progress.”

Aldous Huxley wrote, “Technological progress has merely provided us with more efficient means for going backwards.”

In a fairly recent Supreme Court opinion, Riley v. California, Chief Justice John G. Roberts Jr. wrote that ninety percent of Americans have cell phones and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.” Continue reading →

For law enforcement – privacy is inconvenient

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ciaDirectorWhatever anyone thinks of former CIA network administrator, Edward Snowden, whether as a whistleblowing champ hero or a hacking chump coward, he raised the consciousness of citizens to the fact that they had very little privacy, that we all remain under constant warrantless NSA surveillance for no good reason while their secret big data haul makes the fictional Orwellian Big Brother a harsh reality.

Many are willing to surrender freedom and privacy for seeming security.

Many say they don’t care if the government is hoovering up every bit of information about them – what do they have to hide?

For all the self-asserting bluster about their individual dignity and independence, many have chosen to escape from the hard-earned freedom defined by our bill of rights to embrace humiliating subjection.

A recent declassified report, authored in 2009, but released just this past Saturday, said the IGs from five Intelligence and Law Enforcement agencies couldn’t identify any specific ways that the massive surveillance, under the code name, “Stellar Wind,” exposed by Mr. Snowden, thwarted a single possible terrorist attack.

In a law school note, many years ago, I wrote for a law school journal, that the notion of privacy “implies solitude or quiet or ‘social distance,’ no doubt as a reaction to our densely populated, commercial society” and the “concept of control is fundamental to an American definition of privacy.”

Professor Allan Westin described privacy as the “claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”

In the hallowed chamber of the U.S. Supreme Court, during oral argument, the government made crystal clear its disrespect for everyone’s “right to be let alone” from the government’s intrusion. Continue reading →