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Sunday, Nov 8, 2009
A menacing (petulant)letter sent by the Department of Fraud, eh? I've been warned against the over-use of the term "Kafkaesque," but that sure seems Kafkaesque to me. What might be needed is an old-fashioned purge of the entire Washington office of the DOJ. A few good people might be sacrificed among the scores of scoundrels, but how else do you solve the problem of the weird turn that the DOJ has taken in the last few years?
Let's say I am accused of stealing a refrigerator and the police believe that you are not involved, but the cassette tape in your answering machine may hold indirect evidence of this theft.
You are the "communications provider" in this metaphor. Your house is being searched for evidence against me but, you still have fourth amendment rights.
You don't "lose" Fourth Amendment protections against searches only because you are a suspect. The police have a right, with a properly executed warrant, to search my house based on probable cause that my house might have evidence of a crime you committed (even if I don't know anything about it). This is a reasonable search, and the Fourth only prohibits unreasonable searches (a right I still possess). Both you and I are nominally innocent people at the time. And may still be. That doesn't prevent the warrant from issuing.
Cheers,
You don't "lose" Fourth Amendment protections against searches only because you are a suspect. The police have a right, with a properly executed warrant, to search my house based on probable cause that my house might have evidence of a crime you committed (even if I don't know anything about it). This is a reasonable search, and the Fourth only prohibits unreasonable searches (a right I still possess). Both you and I are nominally innocent people at the time. And may still be. That doesn't prevent the warrant from issuing.
Ok, now let's pull this back into my original post about roving wiretaps and the fourth amendment rights of communications providers.
The police show up at your house with a warrant to seize the cassette tape from your answering machine but the warrant, instead of specifying your house, said any house that may contain a cassette tape related to my suspected crime.
Valid warrant? No.
I understand that currently law and precedent view voice communications as different than email or text communications. To try and keep things simple and because there is no logical or constitutional reason to treat them differently*, I am going to use voice conversations in my following example, but as far as I am concerned, they will apply equally to email or any other internet communication.
Let's say you have a VOIP server set up in your house. Your software allows your friends to voice chat with each other. The police show up at your house with a warrant to install software on your VOIP server, but the warrant, instead of specifying your house, said any house.
In this case, the communications provider, you, have fourth amendment rights. Why should you have less fourth amendment protection in this example than in the first example?
Now, you may argue that since traditionally we have only had a handful of communications providers, that a non specific warrant isn't that big of a deal because we could only possibly search a very limited amount of "houses."
The world doesn't work that way anymore. Anyone can now be a communications provider.
Is this making any more sense?
Having read your postings, I know you have the tech ability and intelligence to get what I should be saying, so I am doing a terrible job explaining this. If I can't explain this to you, I have no hope finding a simple way to explain this to the average person. Since I think this is important and the same issue applies to the new FISA revisions, I guess I am trying to say thanks for struggling though this with me.
* I would love to hear an argument if you have one.
Thank you, Glenn. The tragedy continues, and Mr. Tamm is unquestionably a hero. I hope he can find solace somewhere. If you will, please tell him this ol' lady will remember him in her prayers every night. Sometimes life is hell. keala
[Arne]: You don't "lose" Fourth Amendment protections against searches only because you are a suspect. The police have a right, with a properly executed warrant, to search my house based on probable cause that my house might have evidence of a crime you committed (even if I don't know anything about it). This is a reasonable search, and the Fourth only prohibits unreasonable searches (a right I still possess). Both you and I are nominally innocent people at the time. And may still be. That doesn't prevent the warrant from issuing.
Ok, now let's pull this back into my original post about roving wiretaps and the fourth amendment rights of communications providers.
The police show up at your house with a warrant to seize the cassette tape from your answering machine but the warrant, instead of specifying your house, said any house that may contain a cassette tape related to my suspected crime.
Valid warrant? No.
But that's not my hypothetical. If there's probable cause that it's at your house ("particular[ity]"), no foul.
I agree that "roving wiretaps" are a bit more akin to "any house that <X> might have used" [or more specifically, "use", seeing as "roving wiretaps" allow for only those phones that the suspect does indeed purchase or use]. But that's a far cry from "any house, period". Maybe they need a bit more evidence that all the houses are in fact likely to be used for the illicit purposes, but don't you see that the big divide is between having the probable cause -- even if lacking a great degree of particularity -- and not having probable cause at all (Dubya's approach), rather than the divide having probable cause in both cases but in one lacking the "particular[ity]" of the "places to be searched"?
I understand that currently law and precedent view voice communications as different than email or text communications....</>
How so? You may be right, but I'm not quite sure what you're driving at.
To try and keep things simple and because there is no logical or constitutional reason to treat them differently*, I am going to use voice conversations in my following example, but as far as I am concerned, they will apply equally to email or any other internet communication.
Let's say you have a VOIP server set up in your house. Your software allows your friends to voice chat with each other. The police show up at your house with a warrant to install software on your VOIP server, but the warrant, instead of specifying your house, said any house.
That's not the way "roving wiretaps" work. The suspect would have to have an account there. And the information collected would have to be limited to the communications of that suspect.
But the requirement for capability is in CALEA, and it applies to all telecommunications providers. Actually, the telecoms don't have to provide the capability (and some choose not to), subject to fines should they not be able to implement a warrant when served with such. If a telecom thinks they can meet the requirement without installing gummint S/W (or CALEA vendor software), they're welcome to do so, and the gummint can't require that they do.
In this case, the communications provider, you, have fourth amendment rights....
Not exactly. As I said, businesses don't have Fourth Amendment rights per se, and business records are treated differently from a legal standpoint than are individual people's papers and such.
Why should you have less fourth amendment protection in this example than in the first example?
You're a business. If you weren't charging, that might be different, but CALEA only applies to businesses.
Now, you may argue that since traditionally we have only had a handful of communications providers, that a non specific warrant isn't that big of a deal because we could only possibly search a very limited amount of "houses."
No thanks. I've stated the law above.
The world doesn't work that way anymore. Anyone can now be a communications provider.
True, but I think you're a bit confused as to the law.
Having read your postings, I know you have the tech ability and intelligence to get what I should be saying, so I am doing a terrible job explaining this. If I can't explain this to you, I have no hope finding a simple way to explain this to the average person. Since I think this is important and the same issue applies to the new FISA revisions, I guess I am trying to say thanks for struggling though this with me.
I think you're arguing something else than "roving wiretaps" (or even CALEA). Do you have a specific fact situation we can consider and discuss?
Cheers,
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