The Victorious Opposition

This is the case I was referring in my comments in this post last week:

There are far, far more important, real, actual, currently-being-abused privacy issues to be concerned with. Like, for example, the fact that most of the population is wandering around with a GPS locater strapped to their belt (i.e. their phone) and/or in their car (e.g. OnStar). With clear potential for police/state abuse, e.g. the commercial that shows OnStar disabling a car on police instruction or the documented abuse of telephony data by the FBI.

The Obama administration’s record on police powers, state secrets, executive powers, etc, are really not much different from Bush’s (and in some cases, worse, like the breadth of their state secrets position). They get ripped by the right on the very limited number of things they’re doing differently, but for the most part, with the glaring exception of the torture ban, it’s incredibly hard to tell that there’s been a change of administration.

I was debating about whether to write about the Obama administration’s complaints that all these accusations are helping AQ (which sounds strikingly like the “dissent is aiding the enemy” we heard from Ashcroft and others). I was thinking about creating a new category “Clowns To The Left Of Me, Jokers To The Right” for such subjects (with all due apologies to Stealers Wheel).

...with the glaring exception of the torture ban, it’s incredibly hard to tell that there’s been a change of administration.

I don’t even think Obama deserves credit for that.  The Bush Administration had apparently stopped all of it by 2006 due to unfavorable Supreme Court rulings and the MCA.

Obama is now continuing a Bush policy by not using waterboarding.  It’s a conundrum.

Understand that I think the DOJ has it right.  If the phone company is willing to voluntarily GIVE those records to investigators, no warrant is needed.  The records belong to the phone companies, not the persons under surveillance.

Not surprisingly, I completely disagree with this. While I accept that there needs to be an exception for the electronic equivalent of “hot pursuit” rules, the concept that “well, since the phone company knows it, they can give it to the government of their own free will” is complete bullshit. Why not just allow the phone company to hand over call records? Or voluntarily tap the voice/data communications? I mean - it’s in their computer systems, flowing over their networks, etc.

the concept that “well, since the phone company knows it, they can give it to the government of their own free will” is complete bullshit.

Well, is it your opinion that police should always have to get a warrant even when evidence held by a business would be voluntarily given without one?

Or voluntarily tap the voice/data communications? I mean - it’s in their computer systems, flowing over their networks, etc.

That was exactly how the NSA program worked.

Pardon my ignorance, but it seems like there should be laws protecting this type of information from being released to the government without a warrant.  The idea that a company of which I am a customer is allowed to release intensely personal information like my GPS location and call information is abhorrent to me.

Well, is it your opinion that police should always have to get a warrant even when evidence held by a business would be voluntarily given without one?

Umm, well, yes, in the absence of other stock 4th Amendment exceptions (e.g. exigency). There shouldn’t even be a question here.

That was exactly how the NSA program worked.

Thank you for providing more weight to my point.

So explain to us what your issues are with the 4th Amendment…

Let’s look at it this way, Thrill. Should the state be allowed access to your medical records if your practitioner hands them over voluntarily?

Given all the “death panel” panic around the “government takeover of healthcare”, I’d bet that very few if any think the state should have this power.

How is the phone company voluntarily handing over records, including your current location, any different?

I’m not making a slippery slope argument. This is a bright-line distinction between what the state has access to sans warrant (plain sight, publicly-disclosed, exigency, hot pursuit, etc) and what the state is has NO access to sans warrant (everything else).

It’s one of those instances where I have to ask the VO members who voted for Obama: “Is this what you thought you’d be getting?”

Paging pfluffy…

Should the state be allowed access to your medical records if your practitioner hands them over voluntarily?

Yes, absolutely.  HIPAA even allows it under certain, limited circumstances.  That’s the difference: the ability of medical practitioners to hand information over to law enforcement on a silver platter is limited by statute. Nothing like that has been done with the telecoms as far as this sort of thing is concerned.

That’s the difference: the ability of medical practitioners to hand information over to law enforcement on a silver platter is limited by statute

No. The contexts in which medical practitioners can hand over information to law enforcement is defined by statute. It’s not a limitation, it’s the scope of sharing. The presumption under HIPAA is that the information is not shared except under specific exceptions.

Nothing like that has been done with the telecoms as far as this sort of thing is concerned.

Oh, I see. Unless the government creates laws to implement the 4th Amendment, the 4th Amendment doesn’t have power.

How very conservative of you.

The contexts in which medical practitioners can hand over information to law enforcement is defined by statute. It’s not a limitation, it’s the scope of sharing.

From the Health and Human Services website:

The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.  The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patients rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections.

States also limit the voluntary disclosure of patients’ medical records by statute, as your link points out:

Moreover, HIPAA establishes minimum, not maximum, protections for PHI. State law that prohibits or restricts the disclosure of PHI will control even if such disclosure is permitted by HIPAA. Thus, if state law limits the manner or circumstances in which a disclosure permitted by HIPAA may be made, then these state law provisions must be followed.

Prohibitions on practitioners voluntarily disclosing patients’ medical information is limited by statute but the ability of phone companies to do the provide information is not in the same way.  There’s no way for you to get around this.

Unless the government creates laws to implement the 4th Amendment, the 4th Amendment doesn’t have power

Who’s saying anything about empowering or weakening the 4th Amendment?  The 4th Amendment doesn’t prohibit searches and seizures—only those that are unreasonable.  A notable type of reasonable search that does not require a warrant is when law enforcement authorities have consent to search by the person who controls what is to be searched and seized.  If telecoms possess possible evidence of a crime (again, the records belong to them) and no law prohibits them from giving it to law enforcement (as is the case in the health care field), there is no 4th Amendment violation.

This is Criminal Justice 101, for fuck’s sake.  The 4th Amendment checks the government; not privately-owned telecoms, Mr. Constitution.  As for the value of statutory law, yes; I do think it has more validity than simply judges pulling new laws out of their ass based on subjective interpretations of a “living, breathing Constitution.”

I missed a comment:

@zoom

Pardon my ignorance, but it seems like there should be laws protecting this type of information from being released to the government without a warrant.

Maybe there should be.  The point is that there are not.

Let me add to zoom’s comment:

The idea that a company of which I am a customer is allowed to release intensely personal information like my GPS location and call information is abhorrent to me.

How about a free market solution?  Don’t do business with any phone company unless they guarantee that they will not share information about your account with law enforcement except under subpoena?

To me, doing that is more conservative than demanding new laws restricting what private businesses can do with their own records.

Now for the quadruple-post.

Let’s say that I’m a pimp who’s running a brothel out of an Econo-Lodge room somewhere in the Greater Kansas City area and I show up there every night to do business.  An anonymous informant mentions it to a cop but doesn’t tell him which Econo-Lodge or what kind of car I’m driving.

The police decide to visit every Econo-Lodge and ask to see any hotel registration card I may have filled out.  When they get to the motel I have been staying at, the manager checks the corporate policy on sharing records with police and then agrees to give them the card which they take as evidence.  It includes my vehicle information, so now they can begin a surveillance.

Understand that Econo-Lodge has two choices when asked to provide records to police officers who don’t have a warrant:

1. Voluntarily give them what they want
2. Refuse, meaning that the cops will have to get a warrant

The reason for this is that the records (in the form of registration cards) are the property of Econo-Lodge and they can choose to give it to the police or not unless obligated by law one way or the other.  Their right to do what they wish with their property trumps my right to privacy while I’m pimping crackheads out of their motel.

Under dwex reasoning, the manager could ONLY provide the records to police with a warrant (even if they don’t have sufficient probable cause to get one).  He gets no choice in the matter even if he really would like to help prevent crime in his motel.  Dwex incorrectly thinks that it’s unconstitutional for a private business to voluntarily provide law enforcement with records that it lawfully and systematically gathered because it might infringe on somebody’s right to secretly fuck whores in a motel.

Now, you can say that a state that allows police to peek at records indicating who is staying at a particular motel is wrong and that’s fine with me.  The problem with what dwex would have you believe is that businesses consensually providing records to law enforcement that may incriminate someone is not a violation of the 4th Amendment or any other part of the Constitution.  The only way it would be is if the police try to inspect or seize the records belonging to the business without consent or a warrant.  Why?  Because the records are the property of the business and are under the business’s control.  NOT me, the pimp.

To me, doing that is more conservative than demanding new laws restricting what private businesses can do with their own records.

I agree with you, but there is a caveat to the conversation. These mobile networks are not the exclusive property of private business (often times), and there are precious few of them. I would like to think that I could sign up with the “drug purchasing, pimp friendly” network that assures me being discrete is of the utmost priority for their customers (meaning they’ll tell the cops and DOJ to fuck off), but there isn’t that option. And the government feeds into it by giving them hand outs and bail outs (the same problem with airlines).

I think it’s best to remember what I learned in my younger days as a small time drug consumer and dealer: “be paranoid.” Open lines of communication have always been open to observation. Drugs used to be the thing that people were after, but the same measure of indiscretion is now reserved for terror after 9-11. The way the game was taught to me was that you never discussed business or intent over the phone, always know who you’re talking to, and know your code words.

That was back in the nineties, when having a pager almost made you a suspected drug dealer. I think that this is a case of “the more things change, the more they stay the same.” Only an idiot would openly discuss incriminating issues over any “public” line, and the amount of authority given to the flat foots hasn’t really changed in 20 years, just the descriptive terms of those who we’re now after (read: skerry, brown, terrist).

dwex will be more intimately in tune with this, but I’m of the opinion that if you value privacy, the last thing you want to do is discuss the issue over an open line of communication.

Under dwex reasoning, the manager could ONLY provide the records to police with a warrant (even if they don’t have sufficient probable cause to get one).

You assume the guilt of your customer, and paying customer at that. You (the Chinaman running the desk) really have no clue as to who these people are (are they even the police?). You do wait for something official, because it’s “official”. With the level of incompetence in government organizations now days, i would almost demand it out of every request. My company wouldn’t ever give out private information on request of law enforcement without something official to accompany it. The liability is too huge.

That said, we have our own security, fire, and legal department. If some cop runs up to an Econolodge and bullies a manager, they can probably get what they want.

Now, you can say that a state that allows police to peek at records indicating who is staying at a particular motel is wrong and that’s fine with me.  The problem with what dwex would have you believe is that businesses consensually providing records to law enforcement that may incriminate someone is not a violation of the 4th Amendment or any other part of the Constitution.  The only way it would be is if the police try to inspect or seize the records belonging to the business without consent or a warrant.  Why?  Because the records are the property of the business and are under the business’s control.  NOT me, the pimp.

You’re probably right here, but in the sense that government would do this only when warranted. You do have to add in the idea of abuse and mistakes. Especially when you’re talking about the mouth breathers that work in our government offices.

Let’s flip it and say I’m a “real pimp” who knows my crack whores and customers. I might just want to send the boys in blue a little false tip to the pornographer next door here in California. I tell my whores and Johns to just miss the place for a week, while I do a little house cleaning. I double pay for the room, and tell the Chinaman that all money is in cash for a shut mouth. I could just as easily have my way, and send someone up-river for pretty much nothing. At the very least, I got myself some cover because it’s pretty much a known fact that the cops aren’t really digging into the story much more than the tip off, and that’s cool because really…Why bother with a warrant?

The point being all rules are abusable, and if your only desire is to just make it easier to jack people up, it can really blow up in anyone’s face.

How does your scenario reveal any sort of capability for abuse at all?  I don’t think you’re quite getting what I’m talking about here.

Businesses can provide records to law enforcement without a warrant if it’s done with consent.  Giving the police a tip isn’t going to send an innocent person up the river.  They still have to develop evidence for prosecution from that tip and will likely have to get a warrant before making an arrest.

An exception to having a warrant in the situation you described might be if they show up at the motel to question the pornographer next door and just happen to look through the doorway and notice that he has a mound of cocaine on the kitchen table.  In that case, they could arrest without a warrant and seize the cocaine.  This sort of thing has happened.

UPDATED

The problem, Thrill, is that the state (in the case, the FBI) asking the company to “volunteer” the information. That’s tantamount to compulsion to a company that is under so much government control for its very existence. That’s a very weird definition of “voluntary”.

Even more gratuitous in this context is the FBI’s abuse of NSLs for intercepting communications and their self-documented abuse of process in obtaining call records. The existence of (a) such abuses and (b) the legal regime that covers such information puts your entire argument at a disadvantage.

Location information is more sensitive than call records, less sensitive than communications content. If they have to follow process to get call records, what on earth would make you believe they didn’t have to follow process for location information? Exigency is exigency, and absolutely there are exceptions for such cases. But as a routine matter? Sorry, the state doesn’t “ask”. The state tells. And hence the 4th Amendment requirement.

It’s also highly debatable about who “owns” your location. A major point about HIPAA is that the health care provider doesn’t own your medical records - you do. HIPAA is primarily about portability (the ‘p’ in HIPAA is ‘portability’, not ‘privacy’). The fact that the phone company has the ability to locate you doesn’t mean they own your location. They do own call records (which are business records) - for which the FBI must follow process (and has documented their own abuse). They do not own the content of conversations passing over their network (and, in fact, would fight and have fought any attempt to say that they do, e.g. transmission of kiddie porn - see common carrier).

So I don’t see how the ‘phone company owns location’ and ‘the state can request them to “voluntarily” hand it over’ can stand up under the existing regime covering both telecomm business records and communications content.

As for market forces - that would be fine if there were actually a viable opt-out for consumers. But location-tracking is a requirement for E911. You can’t turn it off. With most phones/carriers, you can set it so that only the phone company sees the information (i.e. disable location-aware apps), but you cannot disable the E911 support. I suppose we could all switch to burner phones, like actual crooks do. Yeah, that’s a great solution.

Still, the Obama DOJ and I both agree that the information regarding a suspect’s calls from past locations belongs to the telecoms and they may release it without a warrant.  There is no 4th Amendment issue here.

We’ll see what the court has to say. To your basic premise of this post - the Obama administration’s positions on such matters are as, if not more, gratuitous as the Bush administration’s were, and “hopey changey” doesn’t apply.

Nothing like that has been done with the telecoms as far as this sort of thing is concerned.

Not sure why this didn’t click last night. This statement is simply incorrect. I refer you to CALEA (Communications Assistance for Law Enforcement Act), which covers both wiretapping and call detail records. You can get detailed information at the FBI CALEA clearinghouse.

CALEA came about with the advent of digital cellular technologies, as “old-school” wiretapping didn’t work any more. It’s been updated in the last few years for modern technologies (e.g. VoIP).

It’s pretty clear that the FBI (or other law enforcement) cannot just ask phone companies to “voluntarily” hand stuff over. That’s why we have NSLs, FISA, court orders, warrants, etc. With the FBI’s documented track record of abuse of the existing restrictions, the benefit of the doubt cannot be with the FBI on this.

How does your scenario reveal any sort of capability for abuse at all?  I don’t think you’re quite getting what I’m talking about here.

Businesses can provide records to law enforcement without a warrant if it’s done with consent.  Giving the police a tip isn’t going to send an innocent person up the river.  They still have to develop evidence for prosecution from that tip and will likely have to get a warrant before making an arrest.

I do get what you’re saying, but I don’t like what I’m hearing. I think dwex has shown a lot of data dispelling the idea that the telecoms operate in what you describe as a “free” market. In reality, they are heavily regulated (and often supported) by government initiatives. In this instance they have no “choice” but to do whatever the hell the feds “ask” them to. Which in this case means to hand over information without the necessary protocols.

Many here admire “teh rulez” but simply do not have any respect for the idea that protocol is a two way street. The strawman scenario provided in our latest example is the pimp and hooker in Econolodge. Sorry, but they are assumed citizens (you did not distinguish), and are therefore afforded all of the protections given to a citizen of this country. It may be a psychotic fantasy, that in the name of security, any and every measure can be taken, but that’s not our system. Even a suspected criminal has rights, we have a system of justice, and if you want the bad guy you need to work with the rules. Remember, you said this:

Now, you can say that a state that allows police to peek at records indicating who is staying at a particular motel is wrong and that’s fine with me.

Yes, that’s wrong.

The problem with what dwex would have you believe is that businesses consensually providing records to law enforcement that may incriminate someone is not a violation of the 4th Amendment or any other part of the Constitution.

It’s also wrong for the feds to bully businesses for sensitive information with no background, no warrant, and no discretion as to the business they are tending to. You might as well call the FBI the “Taliban” coming to town to sway favor with the locals at the end of a power drill. Is it a 4th issue? I don’t know, but that seems to be the only one that addresses literally protections of citizens and property. Both terms that would arrive in court, IMO.

Paging pfluffy…

Keeping in mind that I am still reading through this thread, I’ll go ahead and answer this one ...

In general, Obama has not surprised me.  I scoffed at the idea that he was a socialist/communist and still do.  I didn’t support his candidacy because I thought he’d be Uncle Ho, it was more about Obama himself.  That said, there are some things that have bothered me, but I would never expect anyone to act exactly how I want them too.  I can’t even get Dave the Teacher to clean off his desk.

The lesson in this is not that Obama did/didn’t do anything, but that no matter how much a candidate may think he/she can make a difference, there are some pretty serious realities in our political system.  It would be wise for Tea Party supporters to pay attention to what actually happens if/when your candidate is sworn in.  They will not be able to cut through the bullshit like they think they will, and I really think that they all think that they can make a difference.

Obama is doing a lot of what I was looking for.  He is pretty much a centrist, like Bush, and (as dwex and I know), centrists can’t make anyone happy.  This is why electing a president by making “independents” happy will result in back and forth mudslinging divide and conquer mess every election cycle.  Independents eventually don’t like the crap that feeds the base so they switch to the other side, forgetting that there is a base there too.

Thank you for the reply.

I can’t believe you think Obama is a centrist, but I’m glad you weighed in.

I think that if you examined Obama’s agenda and positions, and weighted each bullet point equally, Obama would come out as fairly centrist, a bit to the left of center. All you need to do is look at how far to the right of much of his own party he is on so many issues, it’s pretty clear that he’s nowhere near the left fringe. Even on healthcare, he’s well to the right of the “progressive” extremists.

The problem with such an analysis is two-fold:

First: It’s ludicrous to consider each issue as having the same weight. While he certainly is well to right of much of his party on issues like healthcare and bailouts, the impact of what he has done/advocated is so extreme, it completely overbalances a simplistic bullet-point analysis. In my opinion, this is the primary reason that he’s managed to piss off both parties so thoroughly.

Second: A theme I’ve picked up on from reading Cato papers, in particular The Libertarian Vote in the Age of Obama, is that the traditional left/right dichotomy doesn’t really work. You need to look at at least two axes: liberal<->conservative and statist/populist<->libertarian. On a two-axis view, I would put Obama slightly to the liberal side of the first axis, and fully at the populist end of the second axis.

It’s a different way to look at things, anyhow.

First: It’s ludicrous to consider each issue as having the same weight.

Agreed.  I think that a point can be made that he has done some radical things but those things are not alway easy to put on a simple left-right spectrum.  I DO think that some of the right’s anger is geared more towards the 2010 elections coming up.  I mean, seriously, do they really think he’s gonna become a Republican?  The left’s anger is the clue to Obama’s centrist status.  He isn’t giving the left much at all and he will have to be very careful that he wins the 2012 primaries.

I can’t believe you think Obama is a centrist

Centrist encompasses a good portion of the spectrum.  Note that I included Bush as one too, and you know well how much I disagreed with much of what he did.  Dwex is more correct, though, it is more like slightly left of center ...

Obama is doing a lot of what I was looking for.

Could you please be more specific?

Just as I suspected…