I'm surprised, but glad, that a federal magistrate judge would take the time to write out an article like this. It feels odd to me that a judge - someone who is supposed to be neutral - would openly take a stance that prosecutors are overstepping their boundaries within matters of policy. (Of course, one of the functions of a judge is to say when a prosecutor has crossed the line as a matter of law.)
I saw a video (https://www.youtube.com/watch?v=eXAkXyysfFU) discussing one of this judge's recent opinions regarding a series of copyright infringement lawsuits. Orenstein dismissed 13 suits from one single copyright holder against numerous "John Doe" defendants, in which the rights holder conflated people who subscribed to internet service as being the same people who actually committed copyright infringement. Since the plaintiff had no evidence to show that the subscriber and infringer were the same person, Orenstein dismissed the suit without the defendant even knowing he or she was being sued - but Orenstein's basic knowledge, allowing him to make such a ruling unprompted, is the exception, not the rule.
We can't depend on having judges like Orenstein or William Alsup or even the Supreme Court to enact good privacy policy. Policymaking is the job of Congress, and while I am happy to see recent Congressional oversight hearings regarding facial recognition, TSA, and the like, I wish that Congress would take bolder stances against police and prosecutorial overreach.
It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and judges don't even realize.
Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use.
But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances.
For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.
Congress is such a heavy-handed and blunt tool. There are plenty of better legislatures with more interest in these matters and with less ability to overreach. Federalism is important!
There is nothing more democratic than the court system where you are on equal footing against the government.
Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s.
If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.
>And ultimately, that’s the problem: A Congress that has failed to keep pace with the times, not prosecutors aggressively using new technological tools.
The title is a bit confusing as the article really hits the problem area, congress.
At least in my curious amateur tech legal guy reading the news role I do feel like we're seeing judges recognizing that "If we allow X, Y constitutional right really doesn't matter anymore....".
Things like the third party doctrine in the US is not aging well and has been passed by with technology raising questions about if there is any expectation of privacy, anywhere.
You can be entirely off the gird and be a mountain man, but the moment someone decides to note something about you on you're phone, it's out there.
It's all going to come down to what is considered a "reasonable" search which isn't clearly defined in the Constitution. What's unreasonable before a massive terrorist attack is unquestionably reasonable after. Benjamin Franklin has various attributed quotes about the inverse relationship between safety and freedom; it will be interesting to see what the courts decide as reasonable and what sense of permanence will be present in their opinions.
It's worth pointing out that, as with many writings from the eighteenth century, the meanings of words has shifted over time and the original meaning of the phrase is different what it would appear to modern eyes.
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.
"If Congress won't write laws for this century's technology, courts must craft rules that ensure a fair and orderly review of new investigative methods. For example, the Foreign Intelligence Surveillance Court (which also confronts the tension between effective investigations and privacy) has a system for bringing in independent lawyers called "amici curiae" to argue novel or significant legal issues that occasionally arise when the government asks for technology-based surveillance orders. Those amici can argue in favor of the target's presumed privacy interests but don't represent him and can't give him information about the investigation. Magistrate judges occasionally do the same on an ad hoc basis, but in those cases the amici don't have the same access to information as is allowed in the FISA court, and, like the FISA amici, they can't appeal a lower-court ruling. Giving these independent lawyers the information they need to argue about the legality of novel law enforcement requests, as well as the right to appeal, would at least provide for a more balanced assessment of new surveillance technologies and a quicker way for questions about them to be decided on a national basis."
Not making an analogy, totally different situation, but this reminded me of OUII staff attorneys in ITC patent cases. ITC decisions can have a broad effect on the public, on consumers, and the government can try to address this by naming a third party to the proceedings who is supposed to represent the public interest.
"ITC's Office of Unfair Import investigation (OUII) may take part in an investigation. The OUII acts as a neutral party representing the public interest in the investigations. The OUII participates in the investigations through its staff attorneys, who file briefs, participate in discovery, offer opening statements, and examine witnesses, much like the private parties. The presence of the OUII in ITC investigations creates a unique dynamic when compared to federal district court litigation."
I guess the reason I thought of this is because according to this judge, privacy law is being made and AFAICT the public interest is not being represented in the process.
Oh my... Normally, I'd have an uninformed opinion on this; full of opinion and hyperbole.
However, since this happened to me, my opinions are vastly different. There were paragraphs written below that I deleted, mainly because they would likely land me in prison, or at least (further) complicate my life.
The TLDR is: surveillance and search warrants are granted without true probable cause or appropriate knowledge. By "appropriate knowledge", I mean the judge is in no position to comprehend what he or she is authorizing, or the repercussions of granting it.
[+] [-] LurkersWillLurk|6 years ago|reply
I saw a video (https://www.youtube.com/watch?v=eXAkXyysfFU) discussing one of this judge's recent opinions regarding a series of copyright infringement lawsuits. Orenstein dismissed 13 suits from one single copyright holder against numerous "John Doe" defendants, in which the rights holder conflated people who subscribed to internet service as being the same people who actually committed copyright infringement. Since the plaintiff had no evidence to show that the subscriber and infringer were the same person, Orenstein dismissed the suit without the defendant even knowing he or she was being sued - but Orenstein's basic knowledge, allowing him to make such a ruling unprompted, is the exception, not the rule.
We can't depend on having judges like Orenstein or William Alsup or even the Supreme Court to enact good privacy policy. Policymaking is the job of Congress, and while I am happy to see recent Congressional oversight hearings regarding facial recognition, TSA, and the like, I wish that Congress would take bolder stances against police and prosecutorial overreach.
[+] [-] mtgx|6 years ago|reply
Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use.
But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances.
For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.
[+] [-] corebit|6 years ago|reply
There is nothing more democratic than the court system where you are on equal footing against the government.
[+] [-] pif|6 years ago|reply
Contrary to what the most stereotypical look-those-nice-shiny-shoes-at-my-feet Swiss may think, neutral does not mean inactive.
[+] [-] User23|6 years ago|reply
This hasn’t been true for 50 years.
Maybe that upsets people, but it's historical fact. The judicial branch granted itself policy-making powers in the 60s.
If the courts were merely enlightened organizations that neutrally interpret the law, as the framers intended, then nominations wouldn't be so nakedly political.
[+] [-] duxup|6 years ago|reply
The title is a bit confusing as the article really hits the problem area, congress.
At least in my curious amateur tech legal guy reading the news role I do feel like we're seeing judges recognizing that "If we allow X, Y constitutional right really doesn't matter anymore....".
Things like the third party doctrine in the US is not aging well and has been passed by with technology raising questions about if there is any expectation of privacy, anywhere.
You can be entirely off the gird and be a mountain man, but the moment someone decides to note something about you on you're phone, it's out there.
[+] [-] Despegar|6 years ago|reply
https://www.nytimes.com/2016/03/01/technology/apple-wins-rul...
[+] [-] mikece|6 years ago|reply
[+] [-] lmkg|6 years ago|reply
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.
[+] [-] mehrdadn|6 years ago|reply
https://www.npr.org/2015/03/02/390245038/ben-franklins-famou...
[+] [-] 3xblah|6 years ago|reply
Not making an analogy, totally different situation, but this reminded me of OUII staff attorneys in ITC patent cases. ITC decisions can have a broad effect on the public, on consumers, and the government can try to address this by naming a third party to the proceedings who is supposed to represent the public interest.
"ITC's Office of Unfair Import investigation (OUII) may take part in an investigation. The OUII acts as a neutral party representing the public interest in the investigations. The OUII participates in the investigations through its staff attorneys, who file briefs, participate in discovery, offer opening statements, and examine witnesses, much like the private parties. The presence of the OUII in ITC investigations creates a unique dynamic when compared to federal district court litigation."
https://www.venable.com/services/practices/section-337-inves...
I guess the reason I thought of this is because according to this judge, privacy law is being made and AFAICT the public interest is not being represented in the process.
[+] [-] tyingq|6 years ago|reply
[+] [-] module0000|6 years ago|reply
However, since this happened to me, my opinions are vastly different. There were paragraphs written below that I deleted, mainly because they would likely land me in prison, or at least (further) complicate my life.
The TLDR is: surveillance and search warrants are granted without true probable cause or appropriate knowledge. By "appropriate knowledge", I mean the judge is in no position to comprehend what he or she is authorizing, or the repercussions of granting it.
[+] [-] djhaskin987|6 years ago|reply