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: Peter Swire <peter () peterswire net>
Date: November 4, 2005 8:52:47 AM EST
To: 'Marc Rotenberg' <rotenberg () epic org>, 'Declan McCullagh'  
<declan () well com>
Cc: dave () farber net
Subject: RE: [IP] more on Peter Swire on why Alito's co-authored  
report isn't very informative [priv]

Dear Declan and Dave:

        I'm not sure how helpful it would be to have another round on the
implications of the group paper that Alito participated in 1972.   
Marc and I
have already had our shot.

        If you decide to do another round based on Marc's email this
morning, then I would hope it could be paired with my additional short
comments.

        1.  The 1972 group paper, written long ago and by committee, should
not provide a basis for those skeptical of Judge Alito to support him  
or to
believe that he secretly harbors support for a constitutional right to
privacy.  As Declan has shown, his recent judicial writings have read  
4th
Amendment privacy rights very narrowly.  Those writings are by him  
and are
recent, in contrast to the paper from over 30 years ago.

        2.  In privacy debates, there is a recent example of privacy groups
getting hopeful based on earlier quotes, and then being very  
disappointed.
On January 17, 2001 EPIC headlined its newsletter with pro-privacy  
quotes
from Attorney-General nominee John Ashcroft.  Just four years earlier
Ashcroft had said in a speech:

     The outrages against privacy committed by federal law
     enforcement agencies means one thing: Now, more than ever,
     we must protect citizens' privacy from the excesses of an
     arrogant, overly powerful government.

     Law enforcement is using advances in digital technology as
     an excuse to insist on intrusions into privacy that were
     never allowed in the pre-digital era.

Those were Ashcroft's own words, not long before his nomination.

        Do not read too much into a group college paper from over 30 years
ago.

        Peter


Prof. Peter P. Swire
C. William O'Neill Professor of Law
Moritz College of Law of
   The Ohio State University
(240) 994-4142, www.peterswire.net

-----Original Message-----
From: Marc Rotenberg [mailto:rotenberg () epic org]
Sent: Friday, November 04, 2005 8:27 AM
To: Declan McCullagh
Cc: dave () farber net; Peter Swire
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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