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.
[...]