Michael Zimmer.org

The Volokh Conspiracy reports on a Sixth Circuit decision in a Fourth Amendment case that addresses whether querying a database triggers Fourth Amendment protection. The majority concludedthat it does not: If the government collected the data in the database in compliance with the Fourth Amendment, analyzing that data does not implicate the Fourth Amendment.
I certainly don’t have the training to analyze this decision from a legal perspective, but one commenter illuminates concerns with such a ruling:
This ruling is very troubling for the following reasons:
* The 4th amendment only applies to …

A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional. I’ll leave analysis of Judge Taylor’s reasoning to the experts (Jack Balkin, Orin Kerr, Dan Solove, Eugene Volokh, for starters). But I certainly agree with her quoting of Justice Warren at the conclusion of the opinion:
Implicit in the term “national defense” is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction …

NorthJersey.com reports of a local librarian who told police they would need a subpoena before she would turn over the circulation records of a man who had allegedly made sexually threatening comments to a 12-year-old girl outside the library. The police secured subpoenas and eventually received the information they requested, but the librarian is now under fire from local officials who decried her “blatant disregard” for law enforcement and accused her of putting the interests of the library above the interest of police.
The librarian, however, was merely following New Jersey …

Why should you be concerned about the aggregation and commercial availability of your personal information? Because you have little Constitutional protection from the state accessing such “third party” data, as this AP report makes all to clear:
Numerous federal and local law enforcement agencies have bypassed subpoenas and warrants designed to protect civil liberties and gathered Americans’ personal telephone records from private-sector data brokers.
These brokers, many of whom advertise aggressively on the Internet, have gotten into customer accounts online, tricked phone companies into revealing information and even acknowledged that their practices …

My greatest concern about the collection of personal information by search engines, web 2.0 services, transportation systems and the like isn’t that certain individual companies happen to own a slice of my data, nor that these slices are increasingly being aggregated by information brokers like Choicepoint. Rather, my greatest concern is the increasing ease and frequency of such data being shared (voluntarilly or not) with the state. This Washington Post article describes how the government is increasingly turning to data mining of privately-collected information to meet its informational surveillance needs, …

A Skype user over at Grain of Salt has discovered an interesting caveat in the “To whom does Skype transfer Your personal information?” section of their privacy policy:
Except as provided below, Skype shall not sell, rent, trade or otherwise transfer any Personal and/or Traffic Data or Communications Content to any third party without Your explicit permission, unless it is obliged to do so under applicable laws or by order of the competent authorities.
[...] Please be informed that, notwithstanding the abovementioned, in the event of a designated competent authority requesting Skype …

Please read Jack Balkin’s excellent post on the The Twin Dangers of the National Surveillance State:
The twin dangers of national security displacing the criminal justice system and the criminal justice becoming increasingly like the national security system are consequences of technological change. Although the National Surveillance State arises from the changing nature of war, changes in technology do not stop with the problem of war, as least as traditionally conceived. Rather, the very same changes in technology threaten to transform the ways that democratic governments interact with their citizenry. That …

USA Today reports that the NSA has been secretly collecting the phone call records of virtually all American citizens who have recently used a phone, using data provided by AT&T, Verizon and BellSouth:

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect …

Following up on these privacy concerns with municipal wi-fi programs, I am beginning to wonder to what extent the providers of muni-wi-fi (such as Google) might be considered “state agents” when it comes to the collecting of personal information via these technologies.
Does the fact that Google is providing this wi-fi as a public service on behalf of the city make them a de facto “state agent”? If so, does this have any impact on the legal procedures the state must go through in order to obtain any records Google maintains …

Michael Froomkin links to a story about a Federal Trade Commission subpoena sent to Google for the complete contents of a Gmail account, including deleted e-mail messages. (This is unrelated to the DOJ’s subpoena to Google for search terms and excerpts from its search database.) From the article:
The subpoena asks for not only current e-mail but also deleted e-mail: “All documents concerning all Gmail accounts of Baker…for the period from Jan. 1, 2003, to present, including but not limited to all e-mails and messages stored in all mailboxes, folders, in-boxes, …

The New York Times has an article today about the privacy of one’s online intellectual activities and the increasing tendancy of ISPs and other online service providers to share that information with law enforcement (hopefully only when presented with a warrant or subpoena). From the article:
Who is sending threatening e-mail to a teenager? Who is saying disparaging things about a company on an Internet message board? Who is communicating online with a suspected drug dealer?
These questions, and many more like them, are asked every day of the companies that provide …

Jack Balkin points out that under the new Iraqi constitution (passed with the support of the Bush administration), the NSA spying program would be unconstitutional. According to Article 38:
The freedom of communication, and mail, telegraphic, electronic, and telephonic correspondence, and other correspondence shall be guaranteed and may not be monitored, wiretapped or disclosed except for legal and security necessity and by a judicial decision. [emphasis added]

GW Law professor Orin Kerr has posted a draft of his new (and important) paper “Search Warrants in an Era of Digital Evidence.” Here is the abstract:
This Article contends that the legal rules regulating the search warrant process must be revised in light of the demands of digital evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant. Computer technologies tend to bifurcate the process …

It’s been reported that the Electronic Frontier Foundation (EFF) filed a FOIA request with the FBI and other offices of the US DOJ regarding expanded powers granted by the USA PATRIOT Act. The EFF is making the request in an attempt to find out whether or not Section 216 is being used to monitor web browsing without a warrant. The DOJ has already stated they can collect email and IP addresses, but has not been forthcoming on the subject of URL addresses. It seems the EFF is seeking any documentation …