Free Markets, Free People

Daily Archives: February 12, 2010

Cell Phone Records: “No Reasonable Expectation Of Privacy”

Is there an “expectation of privacy” pertaining to your cell phone’s records?  Or any records held by a third party provider?

The Obama administration is arguing that there isn’t:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

In other words, since the provider keeps the records (not you) as mandated by law, those records belong to them and thus should be open to government inspection without permission from you or a court.

Now, there’s an argument to be made in terms of law enforcement needs. For instance, a series of bank robberies took place over a wide area. Combing the records for cell towers in the area of each robbery allowed law enforcement to narrow it down to two cell phone users who made calls in each area just before the robberies. Good police work. But shouldn’t they have to go before a judge and justify their desire to look at these records? I’m not sure they didn’t, but essentially the Justice Department is trying to argue that such a justification and court order should be unnecessary.

Ironic from an administration that was so strident about opposing warrantless wiretaps.

The question is, should those records be considered private? Jim Harper argues at Cato that those records are the modern equivalent of “papers and effects” protected by the 4th Amendment and that the court has misinterpreted that since 1967.

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

I agree with Harper.  Technology has changed how those records are kept, but they are still private records between the provider and the subscriber – especially since, for the most part, much of the data recorded is gathered without our permission. What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.

This attempt is subtly different. Instead of just assuming that there is no expectation of privacy and going ahead and demanding the information, the administration is attempting to have the court okay it first. But the result will be the same – unimpeded access by government to your location at any time (as long as you have a cell phone). It is but a short step from there to do what Harper outlines: data mining from various other providers based on the same argument and with this case as precedence. Result: a profile of you containing private data about your movements, spending habits, places visited on the internet, etc that are really none of the government’s business.

Of course, we all know that Big Brother government would never misuse or abuse this information, don’t we?

As Harper concludes, this is an imporant case which needs to be watched closely:

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.



Screw Bi-Partisanship: King Harry Reid Edition

Bi-partisanship has become the new battle cry of the left, at least for PR purposes.  They no longer have the power to pass anything without at least one Republican vote in the Senate.  So instead of purposely excluding Republicans as they have for a year (and blaming their own failings on GOP “obstructionism”) they now have to make a show of calling for bi-partisanship and hope they’ll be able to pick off at least one hapless GOP Senator.  If they don’t, then they can again blame the Republicans for “obstruction” instead of their failure to find a suitable compromise necessary to pass the legislation in question.

Yesterday, Senate Majority Leader Harry Reid (D-Pluto) did the GOP a favor, although I’m sure Republicans don’t realize it yet. He shot down a “jobs bill” that was the result of bi-partisan work by Democratic Senator Max Baucus and Republican Senator Charles Grassley.

Cost? Over $100 billion. Contents – Pension bailouts, handouts for chicken farmers in Arkansas, an extension of the anti-terror Patriot Act, and a number of other little goodies. Had that bill passed, Republicans would have again earned the derision of the public for “not getting it”. It would be seen as “business as usual” despite the expressed anger of the public over such handouts, bailouts and deficit spending.

Reid instead has decided to unilaterally rewrite the bill to include only 4 things:

* A new tax credit for hiring workers
* Extra money for highway projects
* Small Business tax breaks
* Build America Bonds

The price tag? A reported $15 billion dollars. The reaction from most of the left and the Paul Krugman’s of the world is going to be brutal. Of course the Blanche Lincoln “reelect me” aid to Arkansas chicken farmers, the Chuckie Schumer Pension Bailout along with all the other goodies that made up the remaining $85 billion in the original bill aren’t going away. They’ll be considered in different legislation. That’s to say, no one in the Senate seems to have listened to a thing the polls or public have been hammering them about for months. It is indeed business as usual.

Let’s be clear here, though. Harry Reid want’s a “clean bill” on this not because he’s changing his ways, not because that’s what the American people want and not because he’s a smart politician.

Senate Majority Leader Harry Reid (D-Nev.) is rewriting a jobs bill after Democrats complained of too many concessions to Republicans.

Yeah, that’s right – King Harry just saved the Republicans from themselves (at least for the moment). You see, there was just too much of that bi-partisanship stuff.



Quote Of The Day: Queen Nancy’s Logic Edition

Nancy Pelosi, not exactly the sharpest knife in the drawer, explains why the 60 vote majority in the Senate is “unconstitutional”:

“A constitutional majority is 51 votes,” Pelosi said in an interview Tuesday with Roll Call. “If in fact the Republicans are going to say nothing can be done except by 60 percent, then maybe we all should be elected with 60 percent. It isn’t legitimate in terms of passing legislation.”

Conveniently missing in this romp through the illogical is the fact that a “majority” in the Senate is whatever the Senate rules say it is – and that’s a power left to them by the Constitution. In fact, to change this rule, the Senate requires 67 votes or a 2/3rds majority. I assume Ms. Pelosi would find that “unconstitutional” as well.  Just another, albeit a fairly pathetic one, in an increasing number of assaults on the filibuster by Democrats who understand that they either have to actually be bi-partisan now or change the rules.

Guess which they opt for?

Isn’t also ironic when “Justice” Pelosi cites the Constitution incorrectly as a means to push a blatantly unconstitutional health care bill through?

Anyway, remember to wish long lives and good health to Barack Obama and Joe Biden. As bad as they are, Pelosi being 3 heartbeats away from the Oval Office necessitates those good wishes.