
Congress Starts to Get Serious About Online Privacy - hvo
http://www.nytimes.com/2016/02/07/opinion/congress-starts-to-get-serious-about-online-privacy.html
======
dtrizzle
I know that the HN crowd supports this, but it can be a nightmare for a
criminal defense attorney attempting to acquire exculpatory information.
Remember, whenever a warrant is required to get data, that means the defendant
cannot get stored data through ANY legal process. Thus by passing such a law,
prosecutors and police can always get the data, but defense attorneys can
never get the data.

For example: I’m the victim of an unprovoked attack and beat up by four men.
One of the men records the attack and uploads the video to facebook, He makes
it private, but shares it with a few friends to shame me. In the attack, I try
to defend myself but am only able to get in a few hits on one of the men. The
man that I hit goes to the police and accuses me of battery. I’m arrested and
charged by a prosecutor for battery. I plan to claim self-defense at trial. I
try to collect as much evidence as I can on my behalf.

With a warrant requirement, the video that I know exist on facebook which
would show that these men beat me in an unprovoked attack and would certainly
lead to a not guilty verdict is now completely inaccessible to me or my
attorney. Think about that for a minute. And, as you probably know from
watching Making a Murderer, the police have no duty to investigate potentially
exculpatory information.

I’m not saying that a warrant requirement for stored data is a bad idea. But
the ups and downs need to be considered. I never see anyone present the
downsides that I present here. I’ve brought it up before on HN before and got
very little attention.
[https://news.ycombinator.com/item?id=10066879](https://news.ycombinator.com/item?id=10066879).
No one will care until innocent people are convicted. I wish tech and legal
people would work together on this to prevent the perverse consequences.

Here is an example of this happening: Facebook v. Superior Court:
[http://www.courts.ca.gov/opinions/documents/A144315.PDF](http://www.courts.ca.gov/opinions/documents/A144315.PDF)
(This case is currently being reviewed by the CA Supreme Court.)

Here is a law review article on point:
[http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...](http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7263&context=jclc)

My background: California attorney for 7 years. Prosecutor for 4 1/2 years,
defense attorney for 2 1/2 years. Tech savvy for a lawyer - Associates degree
in Computer Science.

Edit 1: added link to law review article. Edit 2: added my background. Edit 3:
added link to Facebook v. Superior Court.

~~~
dawnbreez
Should we then provide the defense access to the prosecution's evidence (and
vice-versa)?

~~~
whistlerbrk
That is always the case already, I believe. Prosecutors are not allowed to
present evidence not made available to the defense.

~~~
dawnbreez
Parent comment points out that requiring a warrant makes it nigh-impossible to
present the data as the defense. Law is a complex beast.

------
meddlepal
Oh good. I am sure they will manage to fuck this up. I have about as much
confidence in Congress getting tech stuff right as I do a monkey performing
brain surgery.

------
rmc
Probably not enough to make US companies a legal place for EU personal data.

Remember the 4th Amendment doesn't apply to Europeans in Europe (but our
Charter of Fundamental Rights applies to USians in USA)

------
ck2
300 sponsors? There is something else in that bill they want, I assure you.

~~~
rayiner
Read it yourself, it's like 6 pages: [https://www.congress.gov/bill/114th-
congress/house-bill/699/...](https://www.congress.gov/bill/114th-
congress/house-bill/699/text)

~~~
mhurron
Plenty of time for riders to get attached.

~~~
toomuchtodo
Then we watch it all the way through.

------
NiftyFifty
That's sort of laughable, considering the only major legislation passed since
the WWW became legit has been Net Neutrality. As for Facebook's Zuckerberg
said famously - privacy is dead.

~~~
dragonwriter
> That's sort of laughable, considering the only major legislation passed
> since the WWW became legit has been Net Neutrality.

This is false in two ways:

(1) Net neutrality has never been passed as legislation, (2) Lots of other
legislation has been passed (some later struck down as unconstitutional, other
that have stuck) directed toward online life since the web became commonly
used on topics other than net neutrality (including some on privacy -- both
for and against) -- examples include COPA, CIPA, COPPA, DMCA, USA PATRIOT, and
USA FREEDOM, among others.

