My Reasonable Expectation of Privacy

Constitution Daily had an article that said this:

It actually was a then-new form of technology that both Justices Harlan and Black were dealing with in that 1967 case: Katz v. United States.  The FBI had developed the capacity to install, surreptitiously, a listening device on a public telephone booth, and a suspect who used that booth to place illegal bets – Charles Katz — argued that he had closed the door of the booth behind him, and thus expected to shut out the world when he telephoned.

The Supreme Court agreed (with only Justice Black dissenting), and declared that the Fourth Amendment “protects people, not places.”  From that time until now, the court has relied upon Justice Harlan’s formula about privacy expectations and society’s acceptance (or failure to accept) those expectations as it continues to interpret the Fourth Amendment.

In a 1979 case – the one that Judge Leon, in the quotation above, was discussing — the court ruled that society did not accept as a reasonable form of privacy the records that a telephone company keeps of calls that its customers make  The customers, it decided, voluntarily gave up to the telephone company the information about whom they called.  So, the court said, the police could use that data to track down suspected criminal Michael Lee Smith..

The Supreme Court statement that said the Fourth Amendment “protects people, not places” is asinine on the face of it. Can one separate the person from the place when talking about unreasonable searches and seizures? There is a linkage between the two whether the Supreme Court believes it or not.

People have the right to be anonymous in public places as assuredly as the government has a right to protect its secrets in public committee hearings. To deny the former while embracing the latter is hypocritical and condescending.

My expectations of privacy are:

1. My communication is not monitored, stored, reviewed, nor analyzed by any government person or tool unless one of three conditions are occurring: a) I am conducting my business with the government or its agencies and there is a need to corroborate or give credence to my assertions of fact, b) someone I may know is under investigation and I am a “friend of a friend”. If so, then a fuller and broader review of my actions/knowledge is warranted, c) I am under investigation myself for my actions.

In the first instance, my permission is required, in the second the government’s review cannot exceed 30 days without obtaining a warrant and the third instance always requires a warrant.

In the first instance, information retrieved that is outside the nature of my business is to be destroyed (and unrecoverable by others) within 30 days. In the second, at the end of a 30-day review, all information is destroyed unless a warrant has been issued to investigate me for crimes. In the third instance,  information gleaned that is not presented at trial, or is not directly related to the investigation, is destroyed within two years and is unrecoverable by others.

My expectations for personal privacy include the monitoring cameras in public places like highways, streets, public venues, and business security cameras for open-to-the-public events.I should not be identified and my movements not traced unless as part of an active criminal investigation with John Doe warrants issued. Unless they are registered as part of an active investigation, original videos (and copies of same) of any public place should be destroyed within one year of their creation.

These are reasonable expectations of privacy. I am the person the Fourth Amendment was referring to. Not my home, my car, or my telephone booth. Any place that I am, so is the Fourth Amendment. It is like a force field that repels government intrusion of me, what I am doing, and where I am going. It covers my interactions with the world from telephones and internet usage as well as conversations at the local bakery.

The President of Half Measures

Once again President Obama strives mightily for a Participation Award.

From Free Press.Net:

After months of deliberation, President Obama has announced a proposal to end the NSA’s warrantless collection of millions of phone records.1 Under this proposal, these records would stay with the phone companies, and the NSA would need to get a special court order to collect “metadata” about our calls.

Woo Hoo!  Months of deliberation to determine the phone company actually owns the records it creates of your phone data. How mighty is our President!

But does he Win, Place, or Show? Nah,but he was in the race…

The president’s proposal wouldn’t do anything to address the many other ways the NSA and other agencies spy on millions of people in the U.S. and around the world — by tracking our Web searches, reading our emails, even serving National Security Letters that make it illegal for people to speak out.

And what about all those other bills in Congress that want to wrap up the NSA with plastic wrap? Well, …

The FISA Transparency and Modernization Act — which Reps. Mike Rogers and Dutch Ruppersberger introduced this week — bolsters some of the NSA’s worst practices, including the accessing of phone records without a warrant.2 And Sen. Dianne Feinstein’s so-called FISA Improvements Act would “make permanent a loophole permitting the NSA to search for Americans’ identifying information without a warrant.

And what about Sen. Dianne Feinstein’s bill to “modernize” FISA?

Section 6 of Feinstein’s bill blesses what her committee colleague Ron Wyden, the Oregon Democrat and civil libertarian, has called the “backdoor search provision,” which the Guardian revealed thanks to a leak by Edward Snowden.

The section permits intelligence agencies to search “the contents of communications” collected primarily overseas for identifying information on US citizens, resident aliens and people inside the US, provided that the “purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.”

Section 6 bills itself as a “restriction,” but it would not stop the NSA from performing the warrantless search, merely requiring intelligence agencies to log their queries and make them “available for review” to Congress, the Fisa court, the Justice Department and inspectors general inside the executive branch.

Additionally, the report on Section 6 explicitly states that the provision “does not limit the authority of law enforcement agencies to conduct queries of data acquired pursuant to Section 702 of Fisa for law enforcement purposes.”

One thing that we all can agree on is that as soon as Congress puts the word “Modernization” in the title, it is a guarantee that somebody wants to enshrine into law something that is an advantage to him or her.

What will you and I do to protect our privacy?

The Day We Fight Back Against Mass Surveillance

Washington, DC – A broad coalition of activist groups, companies, and online platforms will hold a worldwide day of activism in opposition to the NSA’s mass spying regime on February 11th. Dubbed “The Day We Fight Back”, the day of activism was announced on the eve of the anniversary of the tragic passing of activist and technologist Aaron Swartz. The protest is both in his honor and in celebration of the victory over the Stop Online Piracy Act two years ago this month, which he helped spur.

Participants including Access, Demand Progress, the Electronic Frontier Foundation, Fight for the Future, Free Press, BoingBoing, Reddit, Mozilla, ThoughtWorks, and more to come, will join potentially millions of Internet users to pressure lawmakers to end mass surveillance — of both Americans and the citizens of the whole world.

On January 11, 2013, Aaron Swartz took his own life. Aaron had a brilliant, inquisitive mind that he employed towards the ends of technology, writing, research, art, and so much more. Near the end of his life, his focus was political activism, in support of civil liberties, democracy, and economic justice.

Aaron sparked and helped guide the movement that would eventually defeat the Stop Online Piracy Act in January 2012. That bill would have destroyed the Internet as we know it, by blocking access to sites that allowed for user-generated content — the very thing that makes the Internet so dynamic.

David Segal, executive director of Demand Progress, which he co-founded with Swartz, said: “Today the greatest threat to a free Internet, and broader free society, is the National Security Agency’s mass spying regime. If Aaron were alive he’d be on the front lines, fighting back against these practices that undermine our ability to engage with each other as genuinely free human beings.” According to Roy Singham, Chairman of the global technology company ThoughtWorks, where Aaron was working up until the time of his passing:

“Aaron showed us that being a technologist in the 21st century means taking action to prevent technology from being turned against the public interest. The time is now for the global tribe of technologists to rise up together and defeat mass surveillance.”

According to Josh Levy of Free Press:

“Since the first revelations last summer, hundreds of thousands of Internet users have come together online and offline to protest the NSA’s unconstitutional surveillance programs. These programs attack our basic rights to connect and communicate in private, and strike at the foundations of democracy itself. Only a broad movement of activists, organizations and companies can convince Washington to restore these rights.”

Brett Solomon, Executive Director, Access, added:

“Aaron thought in systems. He knew that a free and open internet is a critical prerequisite to preserving our free and open societies. His spirit lives in our belief that where there are threats to this freedom, we will rise to overcome them. On February 11th, we’ll rise against mass surveillance.”

On the day of action, the coalition and the activists it represents make calls and drive emails to lawmakers. Owners of websites will install banners to encourage their visitors to fight back against surveillance, and employees of technology companies will demand that their organizations do the same. Internet users are being asked to develop memes and change their social media avatars to reflect their demands.

Websites and Internet users who want to talk part can visit to sign up for email updates and to register websites to participate. Regular updates will be posted to the site between now and the February 11th day of action.

WHO: Access, Demand Progress, Electronic Frontier Foundation, Fight for the Future, Free Press, The Other 98%, BoingBoing, Mozilla, Reddit, ThoughtWorks — and many more to come

WHAT: Day of Action in Opposition to Mass Spying, Honoring Aaron Swartz and SOPA Blackout Anniversary

WHEN: February 11, 2014


  1. Visit
  2. Sign up to indicate that you’ll participate and receive updates.
  3. Sign up to install widgets on websites encouraging its visitors to fight back against surveillance. (These are being finalized in coming days.)
  4. Use the social media tools on the site to announce your participation.
  5. Develop memes, tools, websites, and do whatever else you can to participate — and encourage others to do the same.

In other words…We spy on Americans every day

James Clapper wrote a letter to the Intelligence Committee and said:

“My response was clearly erroneous, for which I apologize.” …..“There is not a shred of evidence that the statement ever would’ve been corrected absent the Snowden disclosures.

In other words Mr. Clapper is saying: it is acceptable to disregard the law and the Constitution as long as no one ever learns that we disregard the law and the Constitution.

Why is there no outrage? Well, largely because there is no public incident in which the information about a person has been used in a derogatory fashion. There will be, of course, but it has not happened yet. Oh, I am confident that it has actually occurred, but it has not yet become public knowledge.

What do you do if one day a Congressmen sticks a provision in a bill that says ‘once a year, a list of all websites visited via each computer shall be mailed to all users of that computer along with the frequency and duration of visits.” The government knows the physical address of your computer by the credit cards used. It knows who registered it and all owners of all pseudonyms used on that computer. Imagine the cacophony of voices if that information was sent to all the users of that computer annually. Would you be nervous? Embarrassed? Outraged? Or perhaps you are as silent as death as you struggle to think about all the links you clicked and all the sites that you spent time at during the previous year. But most importantly , you know the sites that you have frequented that others would not find honorable and you would be embarrassed. Now imagine that instead of the US government doing it , it was the Iranians or the Chinese who set up a website that you could ping with your computer and learn all the websites that your specific IP address had visited. How many of you would be buying a new computer real soon and starting to re-build your internet character from scratch? Hmmm?

There is a right to privacy as assuredly as there is the right to vote.In fact, the right to vote is meaningless without the right to privacy.

The government should be ensuring that your personal effects and affairs are not divulged to others by anyone. It’s time to protect the privacy of John Q Public. It is time now to begin.


New Government Entitlements for 2013!

Congress and President Obama have joined forces for the first time to bring you new government entitlements. I hope you like them because you are paying for them.

The US Government is:

1. entitled to spend whatever they want, whenever they want.

2. entitled to make you pay taxes over and over again on the same money.

3. entitled to force you to buy insurance from insurance companies or tax you.

4. entitled to tell you what kinds of products you can buy, like light bulbs.

5. entitled to read all your emails and listen to all your conversations whether you have committed a crime or not.

6. entitled to bomb anyone, anywhere, as long as they call them an enemy and do it for 60 days.

7. entitled to torture and detain any American citizen.

8. entitled to waive habeas corpus at any time.

9. entitled to sell weapons to criminals and watch them commit crimes with them.

10. entitled to tell your school what they should serve as food and what should be taught in the school.

11. entitled to track your whereabouts and use facial recognition software to spot you anywhere.

12. entitled to prevent you from remaining silent.

13. entitled to search you or your belongings anytime, anywhere.

14. entitled to force you to reveal your security pass codes so they can read your electronic papers and effects.

15. entitled to make you take off your shoes and other garments before you board a plane.

16. entitled to deny you travel by private air courier by putting your name on a list.



Privacy on the Net: TOR usage doubles

Once you’ve installed Tor’s software on your PC—most often in the form of the Tor browser bundle—the service allows you to surf the web anonymously by encrypting your Internet connection requests and bouncing them between numerous “relay nodes” before finally sending them on to the final destination.

No node knows the identifiable information of any nodes in the chain aside from the ones they’re taking information from and passing information to and., just to be on the safe side, each hop along the way gets a whole new set of encryption keys.

Whoa! That’s very secure!

“The idea is similar to using a twisty, hard-to-follow route in order to throw off somebody who is tailing you—and then periodically erasing your footprints,” explains the Tor website. All the hip-hopping makes for a very secure (yet very slow) browsing experience, assuming you’re smart about your usage habits. It’s also great for bypassing government firewalls.

Tor’s “onion-routing” technology also enables the creation of “hidden services,” or websites that can also hide their server identity from its users and are only accessible while using Tor. This extreme level of anonymity makes the so-called “Onionland” darknet a haven—not only for seedy types, but also for people who want (or need) to stay anonymous, such as political dissidents and whistleblowers—the type of people who may have relied on Lavabit and Silent Mail previously.

Perhaps not the best group of people to be associated with but you will never know them any way.


Rep. Sean Duffy Speaks about Privacy

Ok, I like him personally even though I ran against him in 2012. We don’t always disagree but we rarely agree completely. (BTW,  I ran against him but I was not in any way “opposition”. Maybe next time.)

In this instance, we agree more than we disagree so please allow me to show you his video.

(I am beginning to hate the phrase “We must find a balance…”  I don’t think we need to find a balance between surveilling every American or capturing terrorists.We just need to capture terrorists and not surveill every American. If we can put men on the moon surely we can do this…)

Anyway, here is Rep. Sean Duffy making a point…


Snail Mail Snooping: Privacy vs Secrecy

Ok, admit it. There is a difference between snooping at your snail mail and capturing the electronic header information in all your emails. You would agree that there is a difference, right?


In addition to the email and phone metadata the U.S. government is tracking, the feds also have an eye on your regular old snail mail, which is actually a “treasure trove of information,” according to a former FBI agent who used to work with the Mail Isolation Control and Tracking program, as it’s called. One would think that snail mail, a relic from a former century, wouldn’t provide that much insight into our lives — isn’t it all bills and unwanted brochures by now? But, it’s just about as useful, it not more so, than digital collection. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with — all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena,” James J. Wedick, the FBI agent, told The New York Times‘s Ron Nixon.

That’s pretty much what the NSA can find through digital tracking, as explained here, but the mail surveillance program is even worse from a privacy advocates standpoint because there is zero oversight. “You just fill out a form,” Wedick explains. The U.S. Postal Service grants or denies the request without any judicial overview — there’s not even a secret court involved. And it’s all okay, say courts, because people shouldn’t expect privacy for the outside of their mail. Which: sure, anyone can look at the outside of a given envelope. But, is that the same thing as someone rifling through our mail every single day? Apparently.

Isn’t there a bit of difference between you having your snail mail snooped for a finite period of time and, say, having every email you ever wrote captured in perpetuity?

I was most perplexed by this “people shouldn’t expect privacy for the outside of their mail.”  That may be true but I guarantee that if you go to all your neighbors houses and begin making notes about the who is sending letters to your neighbors that you will be charged with tampering with the mail. There is an expectation that the public-at-large should not have access to your snail mail.

If the courts really meant that you should have no expectation of privacy from the post office or law enforcement, I think we would have a Fourth Amendment issue. I do expect and should expect that no one is recording the mail I receive, when I receive it, and who has sent it.

I feel the same way about my garbage. Just because I put it out by the street to be picked up by the garbage company (that I contract with) does not mean that I expect my private garbage to be recorded by persons unknown to me. I know the courts have ruled contrary to my thinking but that does not make them right when they simply usurp my control over my garbage. Besides, the things I get in the mail are often later in the garbage. Except this time they are opened. Some anyway.

Perhaps what I am trying to say is that I should not have to create a defensive method or process to preserve my privacy from the prying eyes of persons unknown. The law should be on my side and not against me. It is a burdensome law that impresses me to actively prevent someone from usurping my information.

It may be GIGO to you but it is still my Garbage In and my Garbage Out.

It seems to me that the issue is the definition of ‘privacy’ as opposed to ‘secrecy’. The courts appear to consider that your expectations of secrecy are the same as your expectations of privacy  but they are not. I do not expect my mail to remain secret ( known only to me and those I choose to share it with) but I do expect it to remain private (not known by others who have no business knowing it but known by those who temporarily have to know it to complete their task with it).

My emails are the same. If you have to deal with the information to complete some task, then go ahead. But you have no right to record it for analysis and save it forever.

There are times when things should be secret rather than simply private and it is my responsibility to do that. However, I also have an expectation of privacy even when it is not necessarily a secret.





A Privacy Czar is coming?

The first week on the job for Nicole Wong, dubbed by many as the US’s first chief privacy officer, has been fairly, well, private. The White House has named Wong, 44, a former top lawyer for Google and Twitter, as the new deputy US chief technology officer in the Office of Science and Technology Policy. But the appointment came with little fanfare or official communication about her role, even though Wong could have influence far and wide—not only on internet issues, but on foreign policy, trade and human rights. Here’s why.

Wong is serving as a top deputy to the White House’s chief technology officer, Todd Park, according to OSTP spokesman Rick Weiss. Beyond that, Weiss wouldn’t elaborate on what Wong will be doing. He did say, however, that characterizing her simply as a “chief privacy officer” doesn’t fully describe her role.

In the very least, Wong’s appointment appears to be part of an effort by the Obama administration to reassure citizens that their privacy rights will be protected. The White House has been under the gun about the government’s role in data mining and surveillance, thanks in part to controversy over its PRISM spying program. “The fact that this position exists reflects the importance we attach to the issue,” White House spokesman Jay Carney told reporters last week. “I would point you to everything I just said about the president’s views on the balance that we need to strike between our national security interests and protecting the American people, as well as protecting our values and our privacy.”

She is very accomplished and knows her stuff. I presume she will be used to create a policy about the use and abuse of Social Media and privacy. Said policy to be twisted into an invasion of privacy manifesto for federal agencies.

Why am I so jaded? Because the pattern in the federal government is to abuse something and then craft a policy that permits the very same abuse to continue if authorized by an official of the Executive Branch.

How can this possibly have credence after the secret implementation of Poindexter’s Total Information Awareness Program by another name? Well, when the President’s press officer says ‘we need to strike a balance’ you can rest assured it will not be balanced. No federal agency gives back any power willingly.

Where does Ms. Wong stand on things? Here are her words:

  • First and foremost, the U.S. government should promote internet openness as a major plank for our foreign policy.  The free flow of information is an important part of diplomacy, foreign assistance, and engagement on human rights.
  • Second, internet censorship should be part of our trade agenda because it has serious economic implications.  It tilts the playing field towards domestic companies and reduces consumer choice.  It affects not only U.S. and global Internet companies, but also hurts businesses in every sector that use the internet to reach customers.
  • Third, our government and governments around the world should be transparent about demands to censor or request information about users or when a network comes under attack.  This is a critical part of the democratic process, allowing citizens to hold their governments accountable.
  • Finally, Google supports the commitment of Congress and the administration to provide funds to make sure people who need to access the internet safely have the right training and tools.

How can this possibly happen in a government that is so compulsively secret that it pursues Eric Snowden to the four corners of the globe for telling everyone what everyone already knew but never knew the scope?

It appears to be another legitimizing process for and about an illegal and unconstitutional federal action.

She could tell us what she is doing but then she is sworn to secrecy to never reveal what she is doing  in the interest of national security about our common privacy.

It appears to me that she will establish “Privacy for me and not for thee” throughout the federal government.

Drones and Municipal Ordinances

If you have not heard, there are people who have been arrested for protesting drone usage in the U.S. Drones represent the single largest invasion of property and privacy since paparazzi, microphones, and smartphones.

There are websites and grassroot movements attempting to curtail the use of drones. Here is one:

What do you have to fear about Drones? Well, I guess that depends if they are personal, business, law enforcement, local,  or federal government doesn’t it? Drones were used by Occupy protesters to broadcast actions by the police while the police used drones to guide law enforcement to collect intelligence on protesters and their actions.

What would you do if a ring of thieves used drones to scope out your place and then detect when you were not home? What would you do if a drone was used to spy into your bedroom on the second floor of your house? Is it acceptable for your neighbor to spy on you and record everything you are doing?

The movement at the moment is to try and influence local communities to craft ordinances like THIS ONE.

My issue with drones is privacy, of course. When fences cannot be tall enough to stop drone gawkers then we have lost another piece of our privacy.

Would you support an ordinance to restrict drones and how would you do that? What would you put into the ordinance? If a homeowner shoots down a drone over his property, is he defending his home from incursion and protected by the Constitution or is he responsible for the destruction or someone else’s property?

How much space do you control above your home and property? Would you accept a neighbor building a bridge above your property if it was just a hundred feet above? Should you accept drone incursions above your property? How high is up for you?

Too many questions and not enough answers. What do you think?