| |
| META TOPICPARENT | name="ClassNotes" |
|---|
General Course Background
- Note taking will be rotated and in the wiki. (I'd put in the wiki URL, but you're already here.)
|
| | Questions involve digital communications technology, so class will seek to understand technology as well; will have to understand the balances between technology, law, and politics/power- what is legal may not be politically palatable, and power may decree that things which are legally/politically unpalatable (Poindexter's Total Information Awareness) may go on under other names.
Constitutional Theory |
|
<
< | Class will go into US Constitutional? theory, in large part as a guide to organizing the structure of the class and in guiding our theoretical analysis, since they have recently been gutted. How do we interpret these '18th century sentences' in a 21st century light? Should they be updated, or not? If they should be, what is the role of the citizenry in resuscitating them? We will start with the 4th Amendment ('part 4'), but will also look at other sections. |
>
> | Class will go into US Constitutional theory, in large part as a guide to organizing the structure of the class and in guiding our theoretical analysis, since they have recently been gutted. How do we interpret these '18th century sentences' in a 21st century light? Should they be updated, or not? If they should be, what is the role of the citizenry in resuscitating them? We will start with the 4th Amendment ('part 4' of this site), but will also look at other sections. |
| |
Examples of Upcoming Discussion Topics |
| | |
|
<
< | 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.
|
>
> |
- 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.
|
| |
- 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? .
|
>
> |
-
- 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. |
>
> | 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.) |
>
> | 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
\ No newline at end of file |
|
>
> | Added some cross-site links and links to Constitution text, legislation, and external organizations
-- IanSullivan - 24 Jan 2008 |
| | \ No newline at end of file |