FC: Slate privacy roundtable (#3) -- police searches and seizures

[Declan McCullagh <declan () well com>]

http://slate.msn.com/code/BookClub/BookClub.asp?Show=6/8/00&idMessage=5471&idBio=174

   From: Eugene Volokh
   To: Declan McCullagh and Jeffrey Rosen
   Subject: Privacy vs. Crime
   Posted: Thursday, June 8, 2000, at 12:26 p.m. PT

   Oh, Jeff, I'm the wrong one to throw cold water on cyber-optimism! But
   let me rummage around my closet and find my Arch-Conservative Hat, one
   I've been wearing less often these days, but still one I'm
   occasionally seen sporting.

   There it is. OK, Jeff, Declan, let's talk about crime. Yes, crime,
   that nasty thing that sometimes reminds us that we do need a forceful,
   effective government. I'm not one who thinks that cyberspace is just
   one giant breeding ground for evil, but certainly the computer age
   doesn't materially diminish the risk of crime. As Michael Froomkin
   puts it, "no-one lives in cyberspace"; whatever nyms or hushmails we
   might use, murder, rape, robbery, child molestation, fraud, and
   terrorism all remain. And while crime has often been the excuse for
   government overreaching and undue invasion of privacy, some privacy
   (and yes, even liberty) must indeed be sacrificed in the name of
   safety. We have to somehow avoid both the police state and the "Where
   are the police when you need them?" state.

   Traditionally, one vital tool for fighting crime has been the police
   search. Such searches should in most instances be difficult, but they
   shouldn't be (and aren't) impossible. With probable cause and a search
   warrant, the police can search even your home; and surely this must be
   the case, if we don't want to give everyone a safe haven to which they
   can retreat to hide their crimes.

[...]

   More generally, Declan, you quoted Brandeis as saying that "sunlight
   is the most powerful of all disinfectants." But while that is
   especially true of the government, I don't think the insight can be
   limited to the government. Total security from police searches, either
   of your home or your encrypted computer, is a serious help to
   criminals, and a serious problem not just for the police but for the
   rest of us. And it becomes an even more serious problem when, given
   advances in modern technology, criminals can plot crimes that are
   deadlier than they ever were before.

[...]

   From: Declan McCullagh
   To: Jeffrey Rosen and Eugene Volokh
   Subject: Restoring the Balance of Privacy
   Posted: Thursday, June 8, 2000, at 1:33 p.m. PT

   Eugene and Jeff,

   If Eugene is wearing his old Arch-Conservative Hat, let me don my
   Skeptical Liberal Fedora and rise to the defense of cyber-optimism!

   OK, let's talk about crime. It's true, of course, that we still live
   in meatspace, at least for the foreseeable future. Who argues
   otherwise? If we're going to live in a real-world society with laws,
   that by definition means we're going to be yielding at least a little
   of our freedom, at least some of our ability to do whatever we want at
   any time. It's a tradeoff, and we benefit from it.

   But in a free society, we place strict limits on police power. (All
   we're arguing about, I think, are how strict the limits must be.)
   History has shown us that to do otherwise leads at best to an unduly
   nosy government and at to worst one that veers toward totalitarianism.
   Even in the United States, government agencies have subjected hundreds
   of thousands of law-abiding Americans to unjust surveillance, illegal
   wiretaps, and warrantless searches. Eleanor Roosevelt, Martin Luther
   King Jr., feminists, gay rights leaders, and Catholic priests were
   spied on. The FBI used secret files and hidden microphones to
   blackmail the Kennedy brothers, sway the Supreme Court and, influence
   presidential elections.

   Eugene, you correctly say: "Total security from police searches,
   either of your home or your encrypted computer, is a serious help to
   criminals." But I'm not sure I agree that "it's a serious problem not
   just for the police but for the rest of us."

   It strikes me that in the last half-century, our sphere of privacy has
   been gradually eroding. Technology, in particular mainframes and
   databases, has been a catalyst. The federal government created the
   Social Security number in the 1930s for limited purposes, and then
   repeatedly expanded its use. Massive voracious databases spurred the
   process along.

   Now we're in the age of personal computers, distributed networks, and
   strong encryption. That's a powerful counterbalance to the database
   culture.

   Now, it's true that if encryption is widespread, it will hinder the
   FBI's ability to wiretap. It will allow miscreants to encrypt files in
   a manner impervious to prosecutors' most determined attacks. It will
   make it more difficult for the National Security Agency to scan
   international phone calls or e-mail in bulk for code words that hint
   at illicit activity. It will hinder convictions--but then again, so do
   Miranda rights.

   FBI Director Louis Freeh has said that controls on encryption are a
   matter of restoring the "balance" that's tilting away from law
   enforcement. "In a very fundamental way, conventional encryption has
   the effect of upsetting the delicate legal balance of the Fourth
   Amendment, since when a judge issues a search warrant it will be of no
   practical value when this type of encryption is encountered," he told
   Congress a few years ago.

   What Freeh neglects to mention is how the scales are already tipped in
   favor of the police. Modern communications technologies make it
   possible for law enforcement agents to collect an unprecedented amount
   of information on ordinary citizens without their knowledge. Digital
   technology allows governments to do a much more thorough job of
   monitoring an ordinary person's actions and opinions than ever before.
   If the Justice Department ransacks your home, you'll know it. Not so
   when your communications are digital and are culled from a mail server
   without your knowledge.

   Encryption and other technologies are simply restoring the balance of
   privacy. As John Gilmore of the Electronic Frontier Foundation puts
   it, 200 years ago it was possible to go out in a rowboat to the middle
   of Boston Harbor and have an entirely private conversation free from
   eavesdropping. Technology fortunately gives us that same ability to do
   so today--even if our friends, associates, and relatives are on the
   other side of the globe.

   Put another way: In the United States, at least, society should have a
   strong presumption toward individual rights.

[...]

http://slate.msn.com/code/BookClub/BookClub.asp?Show=6/9/00&idMessage=5480&idBio=174

   From: Jeffrey Rosen
   To: Declan McCullagh and Eugene Volokh
   Subject: Author Gets the Last Word
   Posted: Friday, June 9, 2000, at 12:21 p.m. PT

   Dear Eugene and Declan,

   If we're all putting on hats to distinguish our positions on privacy
   and cybercrime, why don't I put on my classically liberal hat, a John
   Stuart Mill topper, which hangs squarely on the middle peg between
   Eugene's archconservative Bismark helmet and Declan's cyberphunk
   fedora (do cyberphunks wear fedoras?).

   The Unwanted Gaze tries to grapple with the tensions between the
   legitimate needs of law enforcement and the demands of individual
   privacy. In particular, in one of the central narrative threads, I
   trace the slow, sad erosion of Fourth- and Fifth-Amendment protections
   for private papers. In the 18th century, when the Bill of Rights was
   drafted, the search of a private diary was regarded as the
   quintessential example of an unreasonable search. In the landmark Boyd
   case in 1890, the Supreme Court struck down a subpoena for business
   papers on the grounds that it violated the Fourth-Amendment right
   against unreasonable searches and the Fifth-Amendment right against
   compelled self-incrimination. I try to explain how we could have
   evolved from a world in which John Wilkes, the British publisher of an
   18th-century Drudge Report, won thousands of pounds in damages after
   King George III's minions broke into his house and read his private
   diaries, to a world where Kenneth Starr was able to subpoena and
   retrieve the unsent love letters from Monica Lewinsky's home computer.

   Part of the answer, I argue, has to do with rise of the regulatory
   state and the legitimate effort to fight white-collar crime. In the
   years leading up to the Progressive era, it became clear that if
   people could refuse to turn over their corporate records in response
   to grand jury subpoenas, then it would be impossible to enforce
   antitrust laws or tax laws. Well before the New Deal, the court
   decided that the only way to investigate corporate crime would be to
   give prosecutors broad power to subpoena witnesses and to produce
   documents. But in a series of unfortunate decisions in the 1970s, the
   court came close to holding that the Fourth Amendment imposes no
   meaningful limits on subpoenas and the Fifth Amendment provides no
   protection for the content of private papers. Thus, when Bob Packwood
   tried to conceal his diaries from Senate investigators in 1994, Judge
   Thomas Penfield Jackson breezily rejected his claim.

[...]

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