
Prosecutors Are Shaping Privacy Law - ozdave
https://www.nytimes.com/2019/06/13/opinion/privacy-law-enforcment-congress.html
======
LurkersWillLurk
I'm surprised, but glad, that a federal magistrate judge would take the time
to write out an article like this. It feels odd to me that a judge - someone
who is supposed to be neutral - would openly take a stance that prosecutors
are overstepping their boundaries within matters of policy. (Of course, one of
the functions of a judge is to say when a prosecutor has crossed the line as a
matter of law.)

I saw a video
([https://www.youtube.com/watch?v=eXAkXyysfFU](https://www.youtube.com/watch?v=eXAkXyysfFU))
discussing one of this judge's recent opinions regarding a series of copyright
infringement lawsuits. Orenstein dismissed 13 suits from one single copyright
holder against numerous "John Doe" defendants, in which the rights holder
conflated people who subscribed to internet service as being the same people
who actually committed copyright infringement. Since the plaintiff had no
evidence to show that the subscriber and infringer were the same person,
Orenstein dismissed the suit without the defendant even knowing he or she was
being sued - but Orenstein's basic knowledge, allowing him to make such a
ruling unprompted, is the exception, not the rule.

We can't depend on having judges like Orenstein or William Alsup or even the
Supreme Court to enact good privacy policy. Policymaking is the job of
Congress, and while I am happy to see recent Congressional oversight hearings
regarding facial recognition, TSA, and the like, I wish that Congress would
take bolder stances against police and prosecutorial overreach.

~~~
mtgx
It's been obvious for years that prosecutors are pushing surveillance laws to
the breaking limit and often go beyond that in ways that defense attorneys and
judges don't even realize.

Like it took judges 10-15 years to figure out what the prosecutors/FBI/police
were doing with Stingrays. Once they started to understand how that stuff
works they started requiring warrants for its use.

But there are dozens of other tools and loopholes like it that prosecutors are
exploiting because judges don't have a clue about new tech advances.

For instance, most defense attorneys and judges probably don't even realize
that a lot of prosecutors use tainted data through illegal surveillance and
parallel construction. Since this sort of action is hardly ever punished
there's little wonder that they keep doing stuff like this.

~~~
wahern
Some may not appreciate the depth of the issue, others may simply recognize
that there's little that can be done. Common law courts already have
relatively strong _procedural_ protections. In some countries like the U.S.
these procedural protections are at least in principal inviolable by the
legislature, even when they're not explicit in the written constitution.

But courts neither have the duty nor the capacity (legally or otherwise) to
police everything that occurs outside their court. If the evidence presented
is proper on its face, what else can they do? Judges have an independent duty
to pursue the truth of the substantive legal matter, but that's distinct from
actively ferreting out ancillary illegality and falsehoods.

We also have an adversarial system, so there are alternatives to direct
judicial oversight of the executive branch: the legislature _and_ the
defendant. Indeed, much of the evidence for illegal surveillance has come from
defendants, sometimes relying on the court's subpoena powers to discover,
which is a form of procedural protection. So not only are there strong
procedural protections, there's someone in the court room with the duty, the
motivation, and at least in principle the power to see that they're enforced.

IMO, it's right and proper for courts to be sources of legal change, just
don't expect it to be swift or comprehensive. The upshot is that when it
_does_ happen, it's often far more considered and secure. And this is
precisely because it's slow, incremental, supported by well-vetted evidence,
and spurred by manifest, not conjectured, injustice and suffering.

The fact that courts only react to injustice, rather than prevent it, is
something of a feature, not a bug.

The fact that it's the poor that suffer injustice the most isn't something
that courts can fix. Look at the right for counsel to be afforded the
indigent[1]: how successful was that remedy? Not particularly so as in many
places it's not only useless but used to excuse bad outcomes--"well, he _did_
have an attorney". In jurisdictions where it works well it would have, if it
hadn't already, been provided. Wealth inequality is particularly far outside
the court's wheelhouse.

[1] The traditional right to counsel is merely a right to hire legal
representation. The right to publicly funded counsel for the indigent is a
prospective remedy required by SCOTUS in 1963. Prospective remedies have poor
track records. The good protections, the ones that make up traditional
procedural protections, exhibit survival bias and have slowly accreted over
nearly a millennia. This is why the Common Law is considered to have the
strongest procedural protections--the length of time it's had to refine that
aspect of the legal system. Most other Western systems were re-invented de
novo in the late 18th and 19th centuries by, basically, philosophers and
revolutionaries. Theory only gets you so far, and often takes you _way_ off
course.

~~~
sjy
> Judges have an independent duty to pursue the truth of the substantive legal
> matter

Do they? That sounds pretty inquisitorial, rather than adversarial, to me.

~~~
wahern
Yes, they do:
[http://25thandclement.com/~william/Evidence/614.pdf](http://25thandclement.com/~william/Evidence/614.pdf)

My Evidence professor was a Virginia judge and after I submitted the above
assignment[1] he actually pulled me aside before class and asked if it was
original; that is, he asked me to vouch that I hadn't copied it or cheated. He
seemed particularly impressed with my historical research, presumably my
citations at footnotes 1 and 2. The concept wasn't new to him or even
controversial--it's well established, at least as a background principle in
legal procedure--but the history is esoteric.

I told him that he really screwed me. Yes, it was my own research.[2] But by
implying that I did such a great job he took away my motivation to keep doing
that kind of research and putting in the study time. I have ADHD--though only
diagnosed years later--and there are an infinite number of things I could
immerse myself in. I think I ended up getting a low B or C in that class. :(
Imposter syndrome is a powerful motivator and he temporarily cured me of it.

[1] Every student was assigned to write a note for one or two of the Federal
Rules of Civil Procedure, and they'd be published online as study aids for
everyone else in the class.

[2] I was up for like 16 hours powering through Westlaw and Google Books.
Google Books had at the time, but for some reason no longer, an incredibly
rich archive of old legal treatises and other material, like 17th and 18th
century reporters from England and Ireland.[3] I'm pretty sure I kept a copy
of the Wigmore treatise pdf as I later bought the domain name lextex.org with
the idea to typeset it using TeX. In fact, I _still_ want to do that and have
kept renewing the domain name. I thought I had uploaded it somewhere under
public_html/ but I can't find it now....

[3] On one or two occasions I found original reporters that _contradicted_ the
case reports used in legal treatises and historic judgments, including our
textbooks. In several more I found potentially substantive discrepancies. In
the age where judges orally recited their judgments and commercial reporters
transcribed and published them, errors were to be expected. It's interesting,
though, that sometimes reporters published outright contradictory legal
reasoning and judgments. Legal scholars don't seem to even consider this as a
possibility. It's kinda irrelevant for judges and lawyers, though, because all
that matters is what the most recent authoritative court says, regardless of
any inaccuracies in the cited material.

~~~
sjy
Thank you for the citation. I was not familiar with the Burke quote, or any
other support for the view that common law judges have an "independent _duty_
to pursue the truth." I still think this proposition goes too far, as you seem
to recognise in footnote 13 of your paper, but I accept that in exceptional
cases common law judges can call witnesses.

McCormick § 8 (cited in the notes [1] to the FRE) observes that "it is
sometimes said that the judge may have a duty to _question_ witnesses,
although the exercise of such a duty does not appear to have been enforced by
any appellate court decisions." I am not sure there is any support for a duty
to _call_ witnesses, except as a device to permit cross-examination by both
parties. Even in 1904, Wigmore [2] noted the "strong but subtle tendency to
force" judicial questioning "into the background" and referred to Burke's 1794
speech as a "defensive utterance."

In the UK and Canada, the courts have explicitly rejected the view of a trial
as "a scientific exploration with the presiding Judge assuming the role of a
research director," urging a cautious approach to the calling and questioning
of witnesses which Wigmore regarded as unduly restrictive [3]. I still think
that the absence of a judicial duty to pursue the truth is a key feature of
the adversary system, but the justice system as a whole does have a truth-
seeking purpose, and exceptional cases may call for exceptional judicial
powers.

[1]
[https://www.law.cornell.edu/rules/fre/rule_614](https://www.law.cornell.edu/rules/fre/rule_614)

[2]
[https://archive.org/details/cihm_73411/page/n963](https://archive.org/details/cihm_73411/page/n963)

[3]
[https://www.albertalawreview.com/index.php/ALR/article/downl...](https://www.albertalawreview.com/index.php/ALR/article/download/2406/2395)

------
duxup
>And ultimately, that’s the problem: A Congress that has failed to keep pace
with the times, not prosecutors aggressively using new technological tools.

The title is a bit confusing as the article really hits the problem area,
congress.

At least in my curious amateur tech legal guy reading the news role I do feel
like we're seeing judges recognizing that "If we allow X, Y constitutional
right really doesn't matter anymore....".

Things like the third party doctrine in the US is not aging well and has been
passed by with technology raising questions about if there is any expectation
of privacy, anywhere.

You can be entirely off the gird and be a mountain man, but the moment someone
decides to note something about you on you're phone, it's out there.

------
Despegar
Orenstein was also the judge that ruled against the DoJ/FBI during the iPhone
backdoor case.

[https://www.nytimes.com/2016/03/01/technology/apple-wins-
rul...](https://www.nytimes.com/2016/03/01/technology/apple-wins-ruling-in-
new-york-iphone-hacking-order.html)

------
mikece
It's all going to come down to what is considered a "reasonable" search which
isn't clearly defined in the Constitution. What's unreasonable before a
massive terrorist attack is unquestionably reasonable after. Benjamin Franklin
has various attributed quotes about the inverse relationship between safety
and freedom; it will be interesting to see what the courts decide as
reasonable and what sense of permanence will be present in their opinions.

~~~
lmkg
It's worth pointing out that, as with many writings from the eighteenth
century, the meanings of words has shifted over time and the original meaning
of the phrase is different what it would appear to modern eyes.

The current definition of "reasonable" has a strong connotation of
"proportionate," which was not part of the intended meaning. "Reasonable"
means something more like "rational." It kind of carries this reference to
Enlightenment ideals where Reason is one of the Virtues that demonstrates the
nobility of man. And the law is supposed to also be a demonstration of this
same Virtue of Reason. I know that's a lot of highfalutin' words, but the
point is this: A search being "reasonable" is based on whether it can be
justified from abstract principles of law, not whether it can be justified
from the circumstances.

So, for example: A few weeks ago, it was ruled that parking cops marking your
tires with chalk violates the Constitution. That is an "unreasonable search."
People had a hard time understanding this, because it's just a chalk mark,
right? Well, that's not the point. "Unreasonable" does not mean that the chalk
mark is a big deal. "Unreasonable" means that there was a physical trespass
without individualized suspicion of wrongdoing. The thing that made the
physical violation of private property "unreasonable" was not the
proportionality of the trespass, but the fact that there was not an abstract
legal principle that provides a justification for it.

There are emerging issues around the reasonableness of searches, but I think
the bigger issue related to that is that "always-on" surveillance allows
prosecutors to cherry-pick observations and construct "reasonable suspicion"
out of completely innocuous behaviors. This is especially true when we start
getting into profiling ("this person does things that criminals also do").
While it might be statistically valid, my personal opinion is that it starts
getting outside the idea of "reasonable" suspicion, especially when there
isn't a basis to suspect a specific crime.

Edit: Source for this is mostly a paper titled "The Original Fourth Amendment"
by Laura K. Donohue, _The University of Chicago Law Review_ Vol 83 No 3, pages
1181-1328.

~~~
sjy
Thanks for providing a citation! When you say that profiling isn't
"reasonable," are you still using the word in the sense of "rational"? That
seems inconsistent with your concession that (potentially racist or otherwise
unjust) profiling can still be "statistically valid."

~~~
lmkg
I'm still using it to mean "consistent with a principle of law." The idea of
"rational" is closer than "proportional," but it still loses a lot of nuance.

The issue with profiling is that the justification is "this person resembles a
criminal," rather than "I have reason to believe a crime has been committed."
Even if your methods have good precision and recall, this approach is not
consistent with an existing principle of law.

------
3xblah
"If Congress won't write laws for this century's technology, courts must craft
rules that ensure a fair and orderly review of new investigative methods. For
example, the Foreign Intelligence Surveillance Court (which also confronts the
tension between effective investigations and privacy) has a system for
bringing in independent lawyers called "amici curiae" to argue novel or
significant legal issues that occasionally arise when the government asks for
technology-based surveillance orders. Those amici can argue in favor of the
target's presumed privacy interests but don't represent him and can't give him
information about the investigation. Magistrate judges occasionally do the
same on an ad hoc basis, but in those cases the amici don't have the same
access to information as is allowed in the FISA court, and, like the FISA
amici, they can't appeal a lower-court ruling. Giving these independent
lawyers the information they need to argue about the legality of novel law
enforcement requests, as well as the right to appeal, would at least provide
for a more balanced assessment of new surveillance technologies and a quicker
way for questions about them to be decided on a national basis."

Not making an analogy, totally different situation, but this reminded me of
OUII staff attorneys in ITC patent cases. ITC decisions can have a broad
effect on the public, on consumers, and the government can try to address this
by naming a third party to the proceedings who is supposed to represent the
public interest.

"ITC's Office of Unfair Import investigation (OUII) may take part in an
investigation. The OUII acts as a neutral party _representing the public
interest_ in the investigations. The OUII participates in the investigations
through its staff attorneys, who file briefs, participate in discovery, offer
opening statements, and examine witnesses, much like the private parties. The
presence of the OUII in ITC investigations creates a unique dynamic when
compared to federal district court litigation."

[https://www.venable.com/services/practices/section-337-inves...](https://www.venable.com/services/practices/section-337-investigations-
at-the-international-tr)

I guess the reason I thought of this is because according to this judge,
privacy law is being made and AFAICT _the public interest_ is not being
represented in the process.

------
tyingq
If needed: [http://archive.is/eiekb](http://archive.is/eiekb)

------
module0000
Oh my... Normally, I'd have an uninformed opinion on this; full of opinion and
hyperbole.

However, _since this happened to me_ , my opinions are vastly different. There
were paragraphs written below that I deleted, mainly because they would likely
land me in prison, or at least (further) complicate my life.

The TLDR is: surveillance and search warrants are granted without true
probable cause or appropriate knowledge. By "appropriate knowledge", I mean
the judge is in no position to comprehend what he or she is authorizing, or
the repercussions of granting it.

------
djhaskin987
The headline is kind of obvious, really.

