4th Amendment Discussion

• wiretapping: originally required actual addition of copper wire to copper wire, so required entering the premises (e.g. Watergate break-in.) Hence required warrants- the warrant was 'the thing that got you in', though that often fell away if it wasn't in the home. Of course, as soon as you get more digital, this 'sacredness of the home' justification falls away- leaving nothing to uphold it.

• • foreign intelligence services: These are particularly problematic given that any data they have is (at best) impossible to verify. FISA said these were not acceptable in US courts, but this barrier was removed by the Patriot Act.

• Further information is available -- bill history, bill text. The Village Voice has some coverage.

General Course Background

• Note taking will be rotated and in the wiki. (I'd put in the wiki URL, but you're already here.)

Course requirements/Grading

• two essays, 1,000 word hard limit on topics of your choice added to the wiki. Knows that 1,000 words will be hard; not all of the faculty could do it.
• essays can be confidential, but will still need to be in the wiki. Consult with EbenMoglen to use the wiki's permissions system to do this.
• link contribution is welcome, even necessary
• all contributions will be evaluated- essays, links, discussions, other contributions
• minor writing credit may be gained; talk to EbenMoglen.

General Subject Matter

• about ongoing discovery by states that the net can be used to enhance state power because is regulable and monitorable, and hence can be damaging to freedom
• quickly growing area: first course on state power on the net was in '97 or '98, at which time it was thought superfluous; then taught again in '02; between then he collected something like 8,000 pieces of information. Course still being regularly updated because of changes.
• two parts to the course:
  • what are the facts?
  • what are the theoretical and legal approaches through which to grapple with the facts? how should things be?
• distinct from first course in that there he is a lawyer; has clients. In this class, no clients, so operating/opining more as a citizen, though obviously deeply concerned as a citizen given the current state of affairs.

Communications Technology

Constitutional Theory

Examples of Upcoming Discussion Topics

• chemical monitoring in NYC: the potential upcoming licensing by the police department of chemical monitoring; discussion of motives of the various parties, in particular restriction of action by citizen groups, and the intent of Department of Homeland Security? to push the city's law as a model in other jurisdictions.
• monitoring of foreign students: monitoring of foreign students, in part through the use of national security letters rather than warrants. Note that Columbia has not even shared the number of people subject to them on this campus.

4th Amendment? Discussion

• physicality: 18th century sentence assumes that searches take place in physical locations, of physical things- the 'place to be searched'. This has been narrowed a fair bit in the late 20th century- you can fly over and look down; you can use binoculars. Though Kyllo does limit this (thermal imaging constituted a search, primarily because 'a man's home is his castle'.) Focus was on the 'legitimate expectation of privacy', which was a difficult line to draw- cars, smells of sugar, etc.
• wiretapping: originally required actual addition of copper wire to copper wire, so required entering the premises (e.g. Watergate breakin.) Hence required warrants- the warrant was 'the thing that got you in', though that often fell away if it wasn't in the home. Of course, as soon as you get more digital, this 'sacredness of the home' justification falls away- leaving nothing to uphold it.
• history: background in the 18th Century: the British case Entick v. Carrington found that the servants of the King/Privy Council who had committed an entry were liable (as a result of the sovereign's blamelessness.) This becomes an issue for the colonists because customs agents issue 'writs of assistance' which forces the MA gov't to go after MA citizens. (Fighting against these in the courts brings John Adams and James Otis to prominence.) This leads to the requirement of specificity, which could be used to prohibit general fishing for information (aka TIA) or
• who is subject to the restrictions? implicitly 4th amend. only is held against the state, but there were no federal police until the FBI (1900s) and no full-time federal prosecutors until 1912. Prior to that, didn't really restrain any police- only Customs, which doesn't have to obey the 4th amendment when working at the border (recently reaffirmed.) See Mapp v. Ohio for application to state police, killing the 'silver platter' doctrine.
  • private parties: PIS can still bring evidence to the police under silver platter doctrine, though, leaving a hole in the doctrine. And they can be subpoenaed- which in a world where there is pervasive private surveillance, that hole becomes much larger.
  • foreign intelligence services: These are particularly problematic given that any data they have is (at best) impossible to verify. FISA? said these were not acceptable in US courts, but this barrier was removed by the Patriot Act? .
• 4th amendment is basically dead: has been weak for a while, given that it was very easy to get the warrant. But you still had to execute the warrant- it was physically costly to wiretap; had to be monitored all the time, and could be tossed from court if there was a failure in the monitoring. Now easy- just call Verizon. And Patriot Act? allows roving wiretaps- whose logical extension is the monitoring of every call, just in case.

So how did we get here?

privacy analysis: cognition/collection -> evaluation/analysis/mining/comprehension -> expression/publication/evidentiary use/action + consequence

4th amendment was originally about limiting cognition; similarly 5th amendment? has prohibited self-incrimination, which can be seen as cognition of the linkage between known data and identification.

Note that the Vermont PGP laptop case has currently been stopped on 5th amendment grounds, but if the guy in question uses the same password everywhere, they can subpoena other sites- e.g., gmail- to get all his potential passwords, which will allow it to be opened. (Could probably be done by the NSA? , but they can't admit to that.)

-- LuisVilla - 17 Jan 2008