Civilian and military legal experts are alarmed over a recently approved Pentagon directive that infringes upon the right of protected communications between military defense attorneys and their clients in uniform.
“The bar is very serious about keeping peoples’ secrets, and communications to and from clients,” said Eugene Fidell, a former Coast Guard Law Specialist and a Washington attorney and president of the National Institute of Military Justice.
“And in this day and age, a lot of that is done by e-mail — particularly in the military environment. And if you don’t have the kind of assurance that nobody’s peeking, that’s very disturbing," said Fidell.
According to the May 9 directive, use of a government computer grants the government permission to “inspect and seize data,” and states that “communications using, or data stored on, this [government information system] are not private, are subject to routine monitoring, interception, and search, and may be disclosed or used for any” government-authorized purpose.
The directive goes on to say that attorney, doctor and clergy communications and work product “are private and confidential,” and that use of a government computer does not constitute consent to investigative searching or monitoring of those communications for the purpose of personnel misconduct, law enforcement or counterintelligence investigations.
But the directive does allow all communications and data to be monitored “for purposes of network administration, operation, protection, or defense, or for communications security.”
Allowing any access to such communications concerns legal experts.
A retired Marine Corps judge also complained that the directive does not specifically bar the use of such information by prosecutors.
“What this is saying is that you can search and seize data on what should be a confidential defense lawyer’s computer and then use it for strategic purposes ... maybe to help the prosecution prepare for a particular witness, or a particular legal issue,” said retired Marine Corps Reserve Col. Jack Zimmerman, who practices law in Houston.
“If you’re my co-counsel, and you’re in California and I’m in Houston, and we’re discussing what our opening statement’s going to be, and the other side gets a copy of it ahead of time, what does ‘use’ mean?” he said.
In addition, Zimmerman said, all users of government computers — including military defense lawyers — must agree to a “Notice and Consent” banner upon signing on that lays out the new policy.
“You can’t check your e-mail without checking ‘OK,’” he said.
Any state bar surely would discipline a lawyer for signing a form that waives the attorney-client privilege — something only the client can do, he said.
Military lawyers, although allowed to practice in any military courtroom, must be licensed to practice law in at least one state.
“All of these lawyers who have to sign this forced consent form are putting their licenses in jeopardy,” Zimmerman said. “If a civilian lawyer agreed to this, and the client filed a grievance, that grievance would be upheld. It’s putting military lawyers between a rock and a hard place.”
The Executive Committee of the National Association of Criminal Justice Lawyers, which represents thousands of civilian and military attorneys, called upon Defense Secretary Robert Gates on May 30 to rescind the policy.
“The government has no right to intrude on confidential communications or work product without a search warrant from a neutral judicial officer, based on probable cause to believe that evidence of ongoing or future criminal conduct will be found,” said Zimmermann, one of the group’s members. “That’s the only exception to the privilege rule.”
Showing posts with label Search and Seizure.. Show all posts
Showing posts with label Search and Seizure.. Show all posts
Wednesday, June 4, 2008
Sunday, March 16, 2008
Privacy From Peeping Toms and Other Public Officials.
Privacy. You won’t find the word in the Constitution. But the idea is some how associated with liberty. So Americans have come to expect some degree of freedom from government prying — and government protection from private snoops as well.
But such hopes get dashed. At least, in Oklahoma they do.
One Riccardo Gino Ferrante was arrested in 2006 for aiming a camera up a 16-year-old girl’s skirt, while in a Target store, and was convicted of a felony for his trouble. Unfortunately, four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred.
Why?
Because “the person photographed was not in a place where she had a reasonable expectation of privacy.”
Now, it is quite true that being in a public place removes or at least significantly decreases one’s expectation of privacy. But ought that extend even to the private space within one’s clothing?
Well, the court answered the question in the affirmative. As Judge Gary Lumpkin wrote in his dissent, “In other words, it is open season for peeping Toms in public places who want to look under a woman’s dress.” Except for the private knuckle-sandwich penalty should the woman in question be related to me.
Government won’t protect civilized society, but we as individuals still can. And must. Otherwise skirt-wearing will become the sole province of women like Britney Spears and Lindsay Lohan.
The dissenting judge concluded that the majority’s ruling was “interesting and disturbing.” Nice blurb for an art house flick, but not for a judicial ruling.
The judiciary must be independent. But it should be independent of the other branches of government, not detached from common sense, or all semblance of sanity.
Meanwhile, in Washington State, non-skirt-wearing youngsters have just maintained a far higher degree of privacy.
In a tiny rural county in the Evergreen State, a public school had required random drug tests of its sports participants. Since not everyone wanted to pee for the privilege, the case quickly found its way to court. And on 14 March 2008, the issue was decided by the state’s Supreme Court. The state’s privacy guarantees nixed the program.Students have an expectation of privacy and to have their bodily fluids remain under their control.
There has to be reasonable suspicion to require drug tests, at least in Washington State.
Judge Richard Sanders wrote the majority opinion. It is certainly interesting:
The school district asks us to adopt a “special needs” exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution.
1 Article I, section 7 of the Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
It will disturb many people, caught up in America’s war on drugs. But it does not disturb me.
Just as I would not want some Peeping Tom taking pictures up the skirts of my daughters, I would not want some local school forcing them to urinate into a cup simply to make it easier for school personnel to kick out a few drug abusers
But then, perhaps that’s why my children don’t go to public school. I have worries about not only the level of incivility in the student population, but the levels of lockstep regimentation enforced by administrators and teachers. (I also prefer my children receive a good education, but that is only tangentially related to the issue at hand. Or is it?)
Many people think random drug testing of children is a great idea, liberties and constitutions be damned. But then, many of those same people seem to think that random sobriety checks on roadways are peachy keen.
Call me crazy, but I prefer freedom. It is demonstrated criminal behavior that should warrant the intrusions of police power. Not mere generalized suspicion.
And let’s be quite frank here: random drug tests are there for only one reason, to inspire a general level of fear, with fear (it is publicly hoped)leading to abstinence from the use of prohibited drugs.
You may fear drugs so much that you want your kids to live like that. I don’t.
I have no problem with bad behavior on a student’s part being punished with expulsion. Indeed, I would insist on such a policy in any school my children were to attend. I would want my children protected. This is the proper way to handle such problems.
But such rationality is not found in most public schools, today. Thugs, sots and the merely stoned remain in classes, day after day, no matter how unproductive they may be, no matter how disruptive.
For some reason, though, the lovers of power keep lurching to policies that diminish the liberties of all rather than attack invasive behavior of the few.
It’s nice to know that, in Washington state, at least, “students do not ‘shed their constitutional rights’ at the schoolhouse door.”
It would be nice were a similar privacy right embedded in every state constitution. . . if for no other reason than common sense: it really does seem like a good idea to prevent Peeping Toms from surreptitiously snapping photos, upskirt, of women of any age.(Upskirt Invasions, Urinary Usurpations By Paul Jacob)
But such hopes get dashed. At least, in Oklahoma they do.
One Riccardo Gino Ferrante was arrested in 2006 for aiming a camera up a 16-year-old girl’s skirt, while in a Target store, and was convicted of a felony for his trouble. Unfortunately, four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred.
Why?
Because “the person photographed was not in a place where she had a reasonable expectation of privacy.”
Now, it is quite true that being in a public place removes or at least significantly decreases one’s expectation of privacy. But ought that extend even to the private space within one’s clothing?
Well, the court answered the question in the affirmative. As Judge Gary Lumpkin wrote in his dissent, “In other words, it is open season for peeping Toms in public places who want to look under a woman’s dress.” Except for the private knuckle-sandwich penalty should the woman in question be related to me.
Government won’t protect civilized society, but we as individuals still can. And must. Otherwise skirt-wearing will become the sole province of women like Britney Spears and Lindsay Lohan.
The dissenting judge concluded that the majority’s ruling was “interesting and disturbing.” Nice blurb for an art house flick, but not for a judicial ruling.
The judiciary must be independent. But it should be independent of the other branches of government, not detached from common sense, or all semblance of sanity.
Meanwhile, in Washington State, non-skirt-wearing youngsters have just maintained a far higher degree of privacy.
In a tiny rural county in the Evergreen State, a public school had required random drug tests of its sports participants. Since not everyone wanted to pee for the privilege, the case quickly found its way to court. And on 14 March 2008, the issue was decided by the state’s Supreme Court. The state’s privacy guarantees nixed the program.Students have an expectation of privacy and to have their bodily fluids remain under their control.
There has to be reasonable suspicion to require drug tests, at least in Washington State.
Judge Richard Sanders wrote the majority opinion. It is certainly interesting:
The school district asks us to adopt a “special needs” exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution.
1 Article I, section 7 of the Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
It will disturb many people, caught up in America’s war on drugs. But it does not disturb me.
Just as I would not want some Peeping Tom taking pictures up the skirts of my daughters, I would not want some local school forcing them to urinate into a cup simply to make it easier for school personnel to kick out a few drug abusers
But then, perhaps that’s why my children don’t go to public school. I have worries about not only the level of incivility in the student population, but the levels of lockstep regimentation enforced by administrators and teachers. (I also prefer my children receive a good education, but that is only tangentially related to the issue at hand. Or is it?)
Many people think random drug testing of children is a great idea, liberties and constitutions be damned. But then, many of those same people seem to think that random sobriety checks on roadways are peachy keen.
Call me crazy, but I prefer freedom. It is demonstrated criminal behavior that should warrant the intrusions of police power. Not mere generalized suspicion.
And let’s be quite frank here: random drug tests are there for only one reason, to inspire a general level of fear, with fear (it is publicly hoped)leading to abstinence from the use of prohibited drugs.
You may fear drugs so much that you want your kids to live like that. I don’t.
I have no problem with bad behavior on a student’s part being punished with expulsion. Indeed, I would insist on such a policy in any school my children were to attend. I would want my children protected. This is the proper way to handle such problems.
But such rationality is not found in most public schools, today. Thugs, sots and the merely stoned remain in classes, day after day, no matter how unproductive they may be, no matter how disruptive.
For some reason, though, the lovers of power keep lurching to policies that diminish the liberties of all rather than attack invasive behavior of the few.
It’s nice to know that, in Washington state, at least, “students do not ‘shed their constitutional rights’ at the schoolhouse door.”
It would be nice were a similar privacy right embedded in every state constitution. . . if for no other reason than common sense: it really does seem like a good idea to prevent Peeping Toms from surreptitiously snapping photos, upskirt, of women of any age.(Upskirt Invasions, Urinary Usurpations By Paul Jacob)
Wednesday, January 9, 2008
Right to Privacy versus National Security or nosiness.
U.S. courts consider legality of laptop computer inspections.
A couple of years ago, Michael Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called "Kodak pictures" and "Kodak memories," the officer found child pornography.
The search was not unusual: The government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer's hard drive, the government says, is no different from looking through a suitcase. One federal appeals court has agreed, and a second seems ready to follow suit.
There is one lonely voice on the other side. In 2006, Judge Dean Pregerson of U.S. District Court in Los Angeles suppressed the evidence against Arnold.
"Electronic storage devices function as an extension of our own memory," Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."
Computer hard drives, Pregerson continued, can include diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters' "confidential sources and story leads."
But Pregerson's decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.
The 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, took that position in a 2005 decision. It upheld the conviction of John Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent's suspicions were raised, the court's decision said, "after discovering a video camera containing a tape of a tennis match, which focused excessively on a young ball boy."
It is true that the government should have great leeway in searching physical objects at the border. But the law requires a little more - a "reasonable suspicion" - when the search is especially invasive, as when the human body is involved.
Searching a computer, said Jennifer Chacon, a law professor at the University of California, Davis, "is fairly intrusive." Like searches of the body, she said, such "an invasive search should require reasonable suspicion."
An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there had to be limits on the government's ability to acquire information.
"Under the government's reasoning," the brief said, "border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign." That is, the brief said, "simply electronic surveillance after the fact."
The government went even further in the case of Sebastien Boucher, a Canadian who lives in New Hampshire. Boucher crossed the Canadian border by car about a year ago, and a customs agent noticed a laptop in the back seat.
Asked whether he had child pornography on his laptop, Boucher said he was not sure. He said he had downloaded a lot of pornography but had deleted child pornography when he found it.
Some of the files on Boucher's computer were encrypted using a program called Pretty Good Privacy, and Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he had seen lots of revolting pornography involving children.
The government seized the laptop. But when it tried to open the encrypted files again, it could not. A grand jury instructed Boucher to provide the password.
But a federal magistrate judge quashed that instruction in November, saying that requiring Boucher to provide it would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.
The magistrate judge, Jerome Niedermeier of U.S. District Court in Burlington, Vermont, used an analogy from Supreme Court precedent. It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.
The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you, Niedermeier said.
Michael Froomkin, a law professor at the University of Miami, writing about the Boucher case on his Discourse.net blog, said, "The core value of the Fifth Amendment is that you can't be made to speak in ways that indicate your guilt."
But Orin Kerr, a law professor at the George Washington University, said Niedermeier had probably gotten it wrong.
"In a normal case," Kerr said in an interview, "there would be a privilege." But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.
There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important is that you should leave your laptop at home.
A couple of years ago, Michael Arnold landed at the Los Angeles International Airport after a 20-hour flight from the Philippines. He had his laptop with him, and a customs officer took a look at what was on his hard drive. Clicking on folders called "Kodak pictures" and "Kodak memories," the officer found child pornography.
The search was not unusual: The government contends that it is perfectly free to inspect every laptop that enters the country, whether or not there is anything suspicious about the computer or its owner. Rummaging through a computer's hard drive, the government says, is no different from looking through a suitcase. One federal appeals court has agreed, and a second seems ready to follow suit.
There is one lonely voice on the other side. In 2006, Judge Dean Pregerson of U.S. District Court in Los Angeles suppressed the evidence against Arnold.
"Electronic storage devices function as an extension of our own memory," Pregerson wrote, in explaining why the government should not be allowed to inspect them without cause. "They are capable of storing our thoughts, ranging from the most whimsical to the most profound."
Computer hard drives, Pregerson continued, can include diaries, letters, medical information, financial records, trade secrets, attorney-client materials and information about reporters' "confidential sources and story leads."
But Pregerson's decision seems to be headed for reversal. The three judges who heard the arguments in October in the appeal of his decision seemed persuaded that a computer is just a container and deserves no special protection from searches at the border. The same information in hard-copy form, their questions suggested, would doubtless be subject to search.
The 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, took that position in a 2005 decision. It upheld the conviction of John Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent's suspicions were raised, the court's decision said, "after discovering a video camera containing a tape of a tennis match, which focused excessively on a young ball boy."
It is true that the government should have great leeway in searching physical objects at the border. But the law requires a little more - a "reasonable suspicion" - when the search is especially invasive, as when the human body is involved.
Searching a computer, said Jennifer Chacon, a law professor at the University of California, Davis, "is fairly intrusive." Like searches of the body, she said, such "an invasive search should require reasonable suspicion."
An interesting supporting brief filed in the Arnold case by the Association of Corporate Travel Executives and the Electronic Frontier Foundation said there had to be limits on the government's ability to acquire information.
"Under the government's reasoning," the brief said, "border authorities could systematically collect all of the information contained on every laptop computer, BlackBerry and other electronic device carried across our national borders by every traveler, American or foreign." That is, the brief said, "simply electronic surveillance after the fact."
The government went even further in the case of Sebastien Boucher, a Canadian who lives in New Hampshire. Boucher crossed the Canadian border by car about a year ago, and a customs agent noticed a laptop in the back seat.
Asked whether he had child pornography on his laptop, Boucher said he was not sure. He said he had downloaded a lot of pornography but had deleted child pornography when he found it.
Some of the files on Boucher's computer were encrypted using a program called Pretty Good Privacy, and Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he had seen lots of revolting pornography involving children.
The government seized the laptop. But when it tried to open the encrypted files again, it could not. A grand jury instructed Boucher to provide the password.
But a federal magistrate judge quashed that instruction in November, saying that requiring Boucher to provide it would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.
The magistrate judge, Jerome Niedermeier of U.S. District Court in Burlington, Vermont, used an analogy from Supreme Court precedent. It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.
The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you, Niedermeier said.
Michael Froomkin, a law professor at the University of Miami, writing about the Boucher case on his Discourse.net blog, said, "The core value of the Fifth Amendment is that you can't be made to speak in ways that indicate your guilt."
But Orin Kerr, a law professor at the George Washington University, said Niedermeier had probably gotten it wrong.
"In a normal case," Kerr said in an interview, "there would be a privilege." But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.
There are all sorts of lessons in these cases. One is that the border seems be a privacy-free zone. A second is that encryption programs work. A third is that you should keep your password to yourself. And the most important is that you should leave your laptop at home.
Sunday, January 6, 2008
Warrantless Search and Seizure. DNA Left on Chicken Bones.
Thanks to Colonel Sanders millions of Americans are addicted to the finger licking flavor of fried, broiled, or barbequed chicken. The simple act of licking an envelop, placing a stamp on a letter, or eating a piece of chicken will leave enough DNA for a modern Crime Scene Investigator (CSI) to identify the person who licked the envelop, touched the stamp, or ate the chicken.
Kansas City, Missouri police used DNA evidence found on chicken bones at the scene of a burglary to trace a suspect whose DNA was in the Data Base.
A trail of chicken bones left at a burglary scene more than a year ago has led investigators to a Kansas prison inmate with a hardy appetite for chicken.
Authorities on 3 January 2008 charged John Wyatt Weaver, 43, of Kansas City, with two counts of burglary and one count of stealing a firearm. Weaver is already serving time at Lansing Correctional Facility in Kansas for an unrelated crime.
Police tracked down the suspect through DNA left on six chicken bones strewn throughout a Gladstone apartment where several firearms were stolen in November 2006.
"The facts of this are more amusing than anything I can say," said prosecutor Daniel White.
Weaver is accused of entering two Gladstone homes on Nov. 23, 2006, court records show. At one of the crime scenes, the homeowner reported several shotguns, rifles and handguns missing.
Investigators at the scene found chewed-up chicken scattered around the residence - leftovers authorities believe were stolen from a refrigerator at the earlier burglary.
The Kansas City crime lab examined the bones for DNA evidence. White said the DNA on the bones matched that of Weaver, a convicted felon whose DNA had been entered into the national database.
Was this a warrantless search? Yes. Was it reasonable? Perhaps.
Was it in violation of the 4th Amendment of The US Constitution that guarantees all Americans the right to be secure in their persons, houses, papers, and affects against unreasonable searches and seizures unless pursuant to a warrant issued after a showing of probable cause before a neutral and independent magistrate? Yes, I think it was.
And did this force the accused to be a witness against himself and give self incriminating evidence in violation of the 5th Amendment? It quite possibly did.
How long will it take for these kinds of cases to work their way up through the State and Federal Courts to the Supreme Court?
Kansas City, Missouri police used DNA evidence found on chicken bones at the scene of a burglary to trace a suspect whose DNA was in the Data Base.
A trail of chicken bones left at a burglary scene more than a year ago has led investigators to a Kansas prison inmate with a hardy appetite for chicken.
Authorities on 3 January 2008 charged John Wyatt Weaver, 43, of Kansas City, with two counts of burglary and one count of stealing a firearm. Weaver is already serving time at Lansing Correctional Facility in Kansas for an unrelated crime.
Police tracked down the suspect through DNA left on six chicken bones strewn throughout a Gladstone apartment where several firearms were stolen in November 2006.
"The facts of this are more amusing than anything I can say," said prosecutor Daniel White.
Weaver is accused of entering two Gladstone homes on Nov. 23, 2006, court records show. At one of the crime scenes, the homeowner reported several shotguns, rifles and handguns missing.
Investigators at the scene found chewed-up chicken scattered around the residence - leftovers authorities believe were stolen from a refrigerator at the earlier burglary.
The Kansas City crime lab examined the bones for DNA evidence. White said the DNA on the bones matched that of Weaver, a convicted felon whose DNA had been entered into the national database.
Was this a warrantless search? Yes. Was it reasonable? Perhaps.
Was it in violation of the 4th Amendment of The US Constitution that guarantees all Americans the right to be secure in their persons, houses, papers, and affects against unreasonable searches and seizures unless pursuant to a warrant issued after a showing of probable cause before a neutral and independent magistrate? Yes, I think it was.
And did this force the accused to be a witness against himself and give self incriminating evidence in violation of the 5th Amendment? It quite possibly did.
How long will it take for these kinds of cases to work their way up through the State and Federal Courts to the Supreme Court?
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