Category Archives: Law: Privacy

Time to Think the Unthinkable

Posted on January 5, 2006 by Michael Froomkin

It used to be that having the NSA spy domestically was one of the unthinkable acts that one believed administrations understood were out of bounds. Sort of like the indefinite detention of US citizens in military prisons, or the torturing and killing of prisoners, or ‘rendering’ them to countries that torture.

Well, all bets, gloves, illusions are off.

It is time, therefore, to start asking if this administration is doing other things that were previously ‘unthinkable’.

Today brings suggestions that the administration spied on one or more journalists, and perhaps also on an occasional Democratic candidate and party operative. But don’t stop there. For example, someone should ask whether the new ‘anything goes without a warrant if it’s important enough’ standard for snooping extends to tax returns and to census data. It’s hard, after all, to imagine a legal theory that would allow the NSA to ignore FISA that would not also apply to all that delicious data just sitting there, even if it is hedged with statutory protections. That’s just Congress, after all, nothing serious.

Suggestions for other previously unthinkable questions that should be asked — not that we can trust any statement we get from this administration — painfully welcomed.

Posted in Law: Privacy, National Security, Politics: The Party of Sleaze | 4 Comments

The first wheel comes off

Posted on December 21, 2005 by Michael Froomkin

I have a lot to say about the NSA spy case, but am finding it hard to say properly.

Spy Court Judge Quits In Protest

[U.S. District Judge James] Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Posted in Civil Liberties, Law: Privacy, Politics: The Party of Sleaze | 8 Comments

Miami Announces Plan for Random ID Checks

Posted on November 29, 2005 by Michael Froomkin

Miami cops go ‘in-your-face’ to deter terrorists – U.S. Security: Miami police announced Monday they will stage random shows of force at hotels, banks and other public places to keep terrorists guessing and remind people to be vigilant.

Deputy Police Chief Frank Fernandez said officers might, for example, surround a bank building, check the IDs of everyone going in and out and hand out leaflets about terror threats.

Leaving aside the obvious point that this won’t deter terrorists, who will obviously have some sort of fake ID, and who by implication have already braved the cameras that are always running in banks, this plan sounds like an organized series of illegal suspicionless search.

We accept the dragnet approach to stopping cars on the roads due to the legal rule (legal fiction?) that driving is a ‘privilege, and hence more regulable than, well, walking.

But that rule doesn’t apply to walking. Although the devil is always in the details, so one needs to know more before taking any firm stands, I don’t see the legal (or constitutional) justification for this dragnet approach to pedestrians.

If so, this plan is ripe for challenge, although I wonder if the 11th Circuit is likely to be the most hospitable place for such a law suit.

(Related post: ID Card Required to Ride a Public Bus?)

Update: I’m told that both the police official and the ACLU official quoted in the story now say the article is all wrong.

Posted in ID Cards and Identification, Law: Privacy, Miami | 3 Comments

Ten Ways to Protect Your Privacy

Posted on November 15, 2005 by Michael Froomkin

EPIC’s Chris Hoofnagle (who has great taste in jackets, IMHO), posts his Consumer Privacy Top 10–things US consumers can do to safeguard their privacy. What’s great about this list is that, unlike so many I’ve seen, it’s actually realistic and do-able.

Well, nine out of ten anyway (number six isn’t actually practical unless your tolerance for travail in doing things like getting phone service is much greater than mine).

Posted in Law: Privacy | 3 Comments

I Predicted The Rise of Masks in Public

Posted on October 8, 2005 by Michael Froomkin

Years ago, in writing about privacy in public places and the rise of ubiquitous camera surveillance — a state now nearly achieved in parts of the UK and the US, and coming to a lamppost near you — I predicted that masks would become a hot fashion accessory. And sure enough, in the UK someone is selling Hoodie sweatshirts with integrated masks. (spotted via Boing Boing)

I don’t know what the law is in the UK, but in the US we have mask laws in many states (written originally to stamp out the KKK), that prohibit the wearing of masks in public. These laws are enforced somewhat erratically — they never seem to apply on Oct. 31. And some courts have ruled them unconstitutional, although others have upheld them.

There have been a few cases since I wrote The Death of Privacy?, which is a general survey of technological threats to privacy and possible responses, but if you would like a brief discussion of the legal issues relating to masks you will find them in Section II.B.1.b.

Posted in Law: Privacy | 8 Comments

Florida Privacy Committee Issues Final Report

Posted on August 18, 2005 by Michael Froomkin

The Florida Supreme Court’s Committee on Privacy and Court Records has issued its final report:

  1. Cover and Contents
  2. Part
    1
  3. Part 2
  4. Part 3
  5. Part 4
  6. Part 5

The committee was not able to come to a unanimous conclusion on all points. But, in what is for me a very unusual experience, I found myself voting with the majority on all the disputed questions.

There’s been a fair amount of press attention too. Here’s a sampling:

There’s also a piece in the Daily Business Review but it’s only for subscribers. The Miami Herald’s coverage — four paragraphs from the AP story — is pretty pathetic for anything that has pretentions to being a major national newspaper.

For a taste of the state clerk’s spin on all this (their reps wrote one of the dissents), see this article from Manatee county (Bradenton Herald).

Posted in Law: Privacy | Comments Off on Florida Privacy Committee Issues Final Report