[IP] more on Peter Swire on why Alito's co-authored report isn't very informative [priv]
Begin forwarded message:
From: Marc Rotenberg <rotenberg@xxxxxxxx>
Date: November 4, 2005 8:27:02 AM EST
To: Declan McCullagh <declan@xxxxxxxx>
Cc: dave@xxxxxxxxxx, Peter Swire <peter@xxxxxxxxxxxxxx>
Subject: Re: [IP] more on Peter Swire on why Alito's co-authored
report isn't very informative [priv]
If Alito had signed a college report endorsing the views of
the American Nazi party, his nomination would be sunk. If
someone could recall him smoking marihuana in college,
he would also be in a lot of trouble.
But instead we have a conservative judge, nominated for the
Supreme Court, who put his name on the front of a report
clearly endorsing homosexuality. And the report, exploring
many emerging privacy issues, is one of the very best from
the era.
Neither side can process this information. It doesn't
snap to grid for the Democrats who are gearing up for
a fight against a conservative court nominee when
Bush is weak. It doesn't help Alito's backers who don't
want to unsettle the base and certainly don't want to
imagine that there is more to the nominee than they
considered.
But it remains a remarkable document. And the fact
that the next Justice on the Supreme Court is probably
as responsible as anyone for putting it together is
even more remarkable.
Marc.
On Nov 4, 2005, at 2:50 AM, Declan McCullagh wrote:
Marc Rotenberg wrote, in response to this (http://
www.politechbot.com/2005/11/03/peter-swire-on/):
- The focus was clearly on legislative reform.
That may not tell us much about his views
on the Constitutional right of privacy but
it suggests a very interesting line of
questioning on how a Justice might view
statutes that seek to safeguard privacy
Roberts, by comparison, went out of his
way to argue against federal privacy
statutes and even mocked the 1974
reforms in one argument against FERPA.
I understand that EPIC didn't exactly applaud Justice Roberts'
apparent views on privacy, at least if your letter to Senate
Judiciary is any indication:
http://epic.org/privacy/justices/roberts/0905letter.pdf
But you may be taking too much cheer from an undergraduate group
project. I know my political views changed over the decades and,
besides, I have only a vague recollection of what I wrote in the
group projects I participated in.
A better guide might be Judge Alito's actual published opinions
written as an appellate judge after his time at the Justice
Department, some of which are summarized here:
http://news.com.com/2100-1028_3-5927003.html
Below is an excerpt from a dissent, written by a Clinton appointee,
objecting to the reasoning of the majority in an opinion written by
Alito. (The monitoring in this case was done without a judge's
approval.)
I imagine that might shed more light on his current views.
-Declan
---
UNITED STATES of America
v.
Robert W. LEE, Sr., Appellant.
359 F.3d 194
decided Feb. 20, 2004
Dissent:
The FBI rented a hotel suite for Lee in June and December of 1997.
The suite consisted of "a sitting room and kitchenette, from which
one could walk through a continuously open door, into a bedroom,
which also had a bathroom in it." C. Douglas Beavers, the
government's cooperating witness, rented the hotel suite in Lee's
name on behalf of the government and kept a key for himself.
However, both Lee and Beavers treated the suite as if it was
exclusively Lee's hotel room.
With Beavers' consent, the FBI concealed a video camera and
microphone in the suite after Beavers rented it. The camera could
swivel 360 degrees and transmit video images from the living room
area and part of the bedroom area of Lee's suite 24 hours a day.
Special Agent Reilly of the FBI monitored the hidden surveillance
equipment from an adjacent hotel room the government had rented for
that purpose. Reilly could remotely control the camera and
equipment in Lee's suite from her location in the adjoining room.
The equipment in Lee's room continuously transmitted video and
audio to the receiving equipment operated by Agent Reilly although
she could not receive or record those transmissions unless her
equipment was turned on...
Accordingly, I fail to see the significance of the government's
self-imposed restraint here. Despite those self-imposed
limitations, the fact remains that Agent Reilly had the ability to
manipulate a video camera to see and hear practically everything
that Lee did in the privacy of his hotel suite throughout the day
and night. The limitations of that Orwellian capability were not
subject to any court order. Rather, they were defined by the
curiosity and scruples of a single agent. That is simply not
adequate given the importance of Fourth Amendment guarantees...
However, the concealed camera was capable of sweeping the hotel
suite at a 360-degree angle, thereby displaying for the FBI all of
Lee's effects inside the suite whether or not Beavers would have
been able to see them. Neither Hoffa nor any other legal precedent
supports such an abrogation of the fundamental right of privacy...
To the extent the Fourth Amendment has any vitality in an era of
increasingly sophisticated electronic eavesdropping, it surely
protects the privacy of someone in the intimacy of a hotel suite
from the potential of warrantless 24-hour video surveillance...
The government correctly states that it would be extremely
impractical to create a situation where the camera's view would be
limited to the view of an informant. We all know that we can not
see around corners although we can hear around corners. Everyday
experience teaches enough physics to know that observers with
different lines of sight will have different fields of vision and
therefore see different things or the same thing from different
angles. One need not study Gestalt theory to appreciate that two
observers who see the same object from different angles may "see"
two entirely different objects. The observer at point A in a given
space may not see the same thing as an observer at point B in the
same space. Moreover, no two observers can possibly occupy the
exact same space at the same time, and the extent to which their
observations may differ increases with the distance between the two
observers as well as the increase in the angle formed by their
location and the location of the objects they are observing.
The amount of discrepancy in their observations may also depend on
the presence of objects in the space between them and the object
they are viewing. There is nothing on this record to support a
conclusion that Agent Reilly could only see what Beavers could see
at any given instance and I think it fair to say that proposition
is a virtual impossibility given the configuration of the usual
hotel suite, the number of objects inside it, and the fact that
Beavers and the video camera could not possibly have been looking
at any given object from exactly the same place...
The government argues that unless we ignore this technicality
"video surveillance would be limited to circumstances where an
informant is wearing eyeglasses containing mini-video recorders[,]"
and the government emphasizes that "[s]uch a requirement is
impractical." Appellee's Br. at 28. However, we can not condone a
constitutional violation merely because complying with the
Constitution would be "impractical." Nor is the government's
sarcastic observation that it "is unaware of the existence of such
James Bond-like gadgets[,]" id., a satisfactory reply. If the
government wishes to engage in this kind of invasive surveillance
it need only visit a neutral magistrate; it need not impose upon
"Q."...
I can not help but wonder if my colleagues would be as complacent
about this situation if presented with a male agent capable of
remotely viewing a female suspect in her hotel suite at any hour of
the day or night with only self-imposed limitations shielding the
female suspect from the wandering eye of the male agent. Clearly,
given the analysis of my colleagues that situation would not
violate the female suspect's privacy as long as, at some point in
the day, she allowed an informant to enter the sitting area of her
hotel suite.
I admit that realistic considerations of taste as well as concerns
over a jury's reaction to such an intrusion may preclude that
situation from ever occurring. But Katz seeks to insure that
privacy protections be rooted in stronger stuff than the judgment
of a given agent or concerns about trial tactics...
Initially, I note that the issue of whether this technology has
been abused was never raised here and there is absolutely no record
one way or the other as to the extent of government any abuses of
sophisticated surveillance technology. In addition, very few cases
have addressed the problem of video surveillance involving an
invited informant. In one that has, a miniature camera was carried
in the informant's jacket and transmitted video images to a nearby
agent. See United States v. Davis, 326 F.3d 361, 363 (2d Cir.2003).
The court rejected the defendant's Fourth Amendment argument
stating: "[b]ecause the hidden camera did not capture any areas in
which Davis retained a privacy interest, no Fourth Amendment
violation occurred." 326 F.3d at 366. As I note above, no such
showing has been made here, and the district court found to the
contrary on at least two occasions when Beavers was in the suite.
Yet the court in Davis was careful to limit is holding to only
those things that the informer could see while in the defendant's
presence. The court specifically stated: "We ... extend the rule of
White and Lopez to video recordings that capture images visible to
the consensual visitor...." Id. at 363...
At the risk of appearing alarmist, I think it important to note
that, in rejecting defendant's invitation to reexamine Court
precedent because of the evolving technology, the Court explained:
"We need not here contemplate the Fourth Amendment implications of
these and other frightening paraphernalia which the vaunted marvels
of an electronic age may visit upon human society." 365 U.S. at
509, 81 S.Ct. 679...
I must respectfully characterize the majority's trivialization of
the potential for abuse as naive. Operation of the technology
mentioned in Silverman and Kyllo requires neither entry nor
permission to enter an area of expected privacy. In Kyllo, Justice
Scalia mentions several technological innovations that require
neither physical entry nor consent. These "include a 'Radar-Based
Through-the-Wall Surveillance System,' 'Handheld Ultrasound Through
the Wall Surveillance,' and a 'Radar Flashlight' that 'will enable
law enforcement officers to detect individuals through interior
building walls.' " 533 U.S. at 36 n. 3, 121 S.Ct. 2038.
In addition, though my colleagues contend that, absent consent, the
warrant requirement can be relied upon to prevent abuse of such
technology, the facts before us should readily dispose of that
notion. It is clear that none of the agents involved in monitoring
Lee's hotel suite decided to err on the side of caution and obtain
a warrant prior to installing a video camera that could transmit
video of his living area, as well as parts of the bedroom and
bathroom throughout the day and night. In fact, the record shows
that the possibility of a warrant was never even discussed with
Agent Reilly. Moreover, Lee clearly did not consent to the FBI
installing a camera that could potentially broadcast some images of
his bedroom and bathroom activities throughout the day and night.
As explained above, we can not rely upon technicalities of consent
as found in property law to stretch Beavers' consent that far. See
Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 11 L.Ed.2d
856 (1964). Thus, I do not think the legal analysis in Padilla can
be dismissed because the opinion might be construed as "alarmist."
Rather, the court there expressed the very concerns the Fourth
Amendment was intended to protect; concerns that the Supreme Court
also expressed in Silverman and Kyllo.
The majority does concede that it is not willing to go "so far as
to say that there is no risk of the type of abuse that worried the
Padilla Court," but concludes that "the risk is not great enough to
justify the holding of the Padilla Court." Maj. Op. at 207.
However, the holding in Padilla rests not upon the risks the court
properly identified, but on a proper reading of Supreme Court
precedent. The court explained: "We do not read either White or its
predecessors, Katz v. United States, and Hoffa v. United States, to
go farther than to say that a person has no justifiable expectation
that one with whom he converses will not tell the authorities of
the conversation, and that accurate recordings of the conversation
are therefore permissible." 520 F.2d 526, 527 (citations omitted).
See also United States v. Shabazz, 883 F.Supp. 422 (D.Minn.1995)
(relying upon Padilla to suppress audio and video recordings of
conversations in the defendant's hotel room)...
The Constitution's primary bulwark against arbitrary intrusions
into our privacy is the warrant requirement of the Fourth
Amendment. "The [Fourth Amendment] reflects the recognition of the
Framers that certain enclaves should be free from arbitrary
government interference." Oliver v. United States, 466 U.S. 170,
178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).
The presence of a search warrant serves a high function. Absent
some grave emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police. This was done not to
shield criminals nor to make the home a safe haven for illegal
activities. It was done so that an objective mind might weigh the
need to invade that privacy in order to enforce the law. The right
of privacy was deemed too precious to entrust to the discretion of
those whose job is the detection of crime and the arrest of criminals.
[...]
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