more on Peter Swire on why Alito's co-authored report isn't very informative [priv]

[David Farber <dave () farber net>]

Begin forwarded message:

From: Marc Rotenberg <rotenberg () epic org>
Date: November 4, 2005 8:27:02 AM EST
To: Declan McCullagh <declan () well com>
Cc: dave () farber net, Peter Swire <peter () peterswire net>
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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