• Reports of use of location-based information to assist in political protest or counter-force with those who contributed to the defeat of gay marriage in California
• Part 1 will give an opportunity to think about the nature of political process, forms of democratic behavior, etc. surrounding the issue of anonymity
• Balance of power between government and private parties are shifting unpredictably, which gives government actors much more of an advantage

• Caroline Kennedy & Alan Alderman started work on a book on the real effects of the Bill of Rights on real life
• Moglen was approached to work on the 3rd Amendment piece of it (presumably because no one else could figure out a way to relate quartering in peace times to modern society)
• Some cases involving relocation of prisoners to make room for National Guardsmen, but this is more ironic/unimportant
• 4th Amendment will seem similarly dusty
• Problem: it’s a backward looking enterprise from the point of view of the 18th Century, which creates profound problems
• We have historically thought that the principles secured us from intrusion by para-military forces (police and government), but we are wrong
• What is the principle of the 4th Amendment really about? Protection against “unreasonable” searches and seizures. No warrants shall issue without sufficient particularity and specificity.
• These are problems that were pointed, and faced by the founders
• Bowers v. Hardwick: seems like they overruled Stanley v. Georgia
• Case involving porno movies, decided in Marshall’s first full term → house searched pursuant to a warrant for something else, and they rifled through his house, found the dirty movies, and prosecuted him
• Prosecution for possession of obscene material could not be carried out because the search w/ warrant was not with respect to the prosecution to those films
• Bowers: policeman thinking he had a valid warrant and valid consent (taken advantage of the permission to cross the threshold), and an arrest occurred catching Bowers in an act of fellatio with another man
• Powers unavailable in Stanley (search for prosecution) is now available for arrest
• Why was Stanley about the 4th Amendment to start with?
• Marshall: I thought I was going to write a big 1st Amendment opinion, but then Warren came in and said “A man’s home is his castle” and he knew what he had to write
• Warren was a “superchief” because he never pretended to be much of a lawyer → he had a skill in reducing the nature of the problems faced into simple aphoristic statements → knew who to assign what
• Emphasizes that the root of the 4th Amendment: a man’s home is his castle
• This is the product of 18th Century politics in North America
• In criminal cases, it was pretty much a privilege of the political class (just like right to counsel, indictment, bill of particulars, effective assistance of counsel, representativeness of the community in the jury, etc.)
• Counsel in felony cases had been prohibited until the 18th Century, because of the Treason Act in the 17th Century because it only affected the political class
• Political class wanted protection from that kind of despotic justice
• Concern is with the house: in the long history of search/seizure law, the special privilege of the house was emphasized
• One of the rules was that no search of the house could be conducted without warrant
• Same reasoning as in Stanley v. Georgia (man’s home is his castle)
• These are rules about places: 4th Amendment was a geography game
• Home: 100 points, car oscillated between -20 and +20
• Rolling entity made it complicated → obviously, the car was a container of identity that only the house could replicate
• In L.A., nobody cared where you lived, just what you drove
• Car was registered, and existed in some sense on the sufferance of the state
• Obvious interaction with state regulation, making it desirable to suggest that policemen rooting around in it was the state considering its own
• Idea that identity had to do with the place that made the distinction between car compartments → “expectation” of privacy became the game
• In places, there was either an expectation of privacy or there wasn’t
• Circularity was obvious → once the Supreme Court allowed it, nobody expected it anymore
• Did this place afford you any resemblance of “castlehood”
• Of course people could look at things with a binoculars or flyovers → was it “in plain sight” → physical obstructions were the name of the game
• Supreme Court started using 18th Century real property terms → how apparent the castle wall was became the line of distinction as to whether there was an expectation of privacy
• Emphasis was on places, which was built into the language
• Warrant had to specify “places and things” to be searched
• Bothered the officer to have to be specific, but was something we were prepared to make him live with
• Through the 80s, those were the problems
• How far was the border? What if you had to chase after them? Could you search them wherever you found them? Rehnquist: until they stopped moving
• Could you apply the exclusionary rule to civil cases, grand jury testimony, perjurers?
• Presence or absence of due respect for the amendment’s character: places were sacred, but uses and contexts were more malleable
• Restriction itself required application of 4th Amendment to state processes
• Bivens made Warren concerned with damages actions, not exclusionary rule
• Map v. Ohio: decided incorporation of 4th Amendment through 14th Amendment (rather late), but also about pornography
• Could state officials searching with methods that would have been unconstitutional if done by federal officers introduce evidence in federal courts?
• Wolf v. Colorado: Silver platter rule → if the state cops brought you a prosecution based on unconstitutionally acquired evidence, you could use it
• Map foreclosed the silver platter rule, or did it? Still works for non-state parties.
• Even when there was an exclusionary rule, it didn’t matter if third parties were the ones to acquire the evidence
• How do we acquire evidence from third parties: subpoena by asking judge, or if you’re a federal prosecutor, you just rip one off your “prescription pad”
• Instruction by prosecutors to “jump” and unless they’re well-represented by hardcore counsel, the answer is “how high?”
• This has pretty much always been true
• Power to search anything can be performed by a third party who can use a subpoena → “what do you want to know?”
• When we have congestion pricing, it will not be possible to enter or leave Manhattan without leaving an electronic record → moat will only be bridged by searchable modes of transportation (metrocard, ez pass, toll interaction at every stage)
• Taxis will be probably possible, but Manhattan will have total surveillance → the question becomes “what the fuck is a warrant?” No need at that point.
• At what point is this unacceptable? When do we accept registration with the government? Is it martial law, or just the way we live now?
• Do we have a claim that we have a right to come and go?
• Does it matter whether we’re going across state lines?
• We used to have a liberty of interstate travel in Crandall v. Nevada (it was pretty thin)
• Seems like a “Privilege” or “immunity”
• Does this also allow you to not tell the government who you are when crossing state lines? Only if you’re willing to undergo additional secondary searches → if you don’t mind them stripping you, then you can probably get away with it
• “They hate us for our freedom”
• Surveilled Manhattan: is there no longer a right to travel in New Jersey? No, it just bypasses the need to infringe that “right” → it just structures around it
• Subpoenas are issued for EZ pass records (or red light cameras) to prove presence in Manhattan (because venue is always proper in the Southern District)
• All of this with a subpoena blank
• Presence of data in 3rd party hands mean the silver platter exception long ago swallowed the rule of the 4th Amendment
• Police used to search places and things, but when they’re searching bits, it doesn’t matter (especially when they’re already in the hands of someone else)
• E-mail requires a little bit of work to ask Google to give it to them, but a subpoena blank is sufficient for anything else like anything you searched for in the last 6 months
• Contextual ads, list of correspondents, documents stored in Google Docs, etc. can be obtained
• Subpoenas to ISPs have all sorts of records even if it was “transient” to you (caches, activity records, etc.)
• How many video cameras between here and home? Not really that burdensome to obtain
• Why bother bugging your house, third parties already do this for the state
• Cellphone in your pocket is way less private than in the house
• House is your castle, but your pocket is in plain sight on the public streets
• Subject to search upon “articulable suspicion” by a policeman of wrongful activity
• You don’t back up your laptop or clean out your cellphone
• Two disasters: hard drive failure and cellphone theft (meaning total identity theft)
• All of this data is waiting to go into a database and compared with other data (no need for any warrants in the whole process → just a subpoena)
• Justified to “protect America”
• Data is not so hard to process because it’s immortal and technology follows Moore’s law
• Data mining: what you can’t do now, you can do next week because the data doesn’t go away
• FBI is incompetent now, but maybe not next week
• Still more incompetent than private actors, so why should they do it?
• You tell the data miner your secrets before you tell your friends
• Americans love giving away their data → the younger they are the more they love it (raised not to ask the question)
• People aren’t in the business of fighting government or fighting subpoenas
• Sometimes they’ll make a fuss over a big problem, but they don’t care about the little guys (not worth fighting)
• Is what’s happening that the 4th Amendment is no use anymore? Is it because we’re stuck with the words? Do people not even care?
• What would it mean to get rid of a place-based theory?
• It may be characterized as just a fight about original intent
• There is no question that the boundary and the state’s power to know and our power to resist is set by language that no longer captures in letter or spirit of the state of reality
• Ceased to be relevant. The ideas don’t even make any sense any more
• “Though shalt not do what one needs not to every bother with except under special circumstances (which is almost certainly satisfied if you have to do it)”
• Taking the guts out of the 4th Amendment is like taking the guts of Andrew Jackson, while we live fat dumb and happy that people who hate our freedom live in a cave in Afghanistan.
• The people who undermine our freedom are our friends in bold primary colors. We do need them, but we need to change the rules on them
• We live in a condition of transparent interdependency
• The more we insist on an individual idea, the more we surrender to a state that doesn’t believe the same nonsense we believe
• We need a theory that is not too discontinuous with the old theory or else we’d be politically rejected
• We need a theory of identities not places, because it’s the identity we search, not the place
• We need a theory about time because collection precedes searching, correlation and inspection
• New cellphones have GPS for 911, and can be turned on at any time
• Does a “reasonable” search include recent data only? Or any data ever?
• Probable cause to believe what?
• What collection is justified by what? Is the mere aggregation justified?
• If you don’t want to live here, tough shit
• If I know 100,000 people, the 100,001st person is not that big a mystery → 1,000,000 people known makes the 1,000,001st is no mystery at all
• People you know use the data miner and they talk to you → you can try to hide your SSN forever, but everyone else born in Baltimore is known, so you’re the other one
• We have an ecological problem
• Easy to screen-scrape facebook to identify closeted gay people by looking at their friends and associations
• Everyone else was telling people things that told the data miners about you
• When government does it, it’s surveilling without surveillance. Searching without searching. Acquiring data without touching the thing it was looking at
• Advertisers do it all the time → data mining for advertising purposes use “targeted ads”
• People who build aluminum and mine data need a huge amount of cheap electricity → Iceland is being scouted by Google for cheap hydro-power
• Everybody who data mines works for the government whether they think they do or not because the only thing necessary to find it is a subpoena blank
• Capitalism prides itself on being able to know what you want before you want it and giving it to you
• So what do we call Totalitarianism from the 20th Century? Why was it a bad idea for the state to be in every home and in our imaginations?
• Daylight savings means the Soviet Party can tell the sun what to do
• Real horror of totalitarianism was that it was inside your head → when you were dreaming
• In the 20th Century, the state didn’t have the power. Now, the state just has to send a form to Google. And it’s perfectly consistent with the U.S. Constitution
• We have to invent something. It’s probably not the 50-something lawyers or the sleepwalking dead that are going to do it.
• Report: White House email system couldn’t be up and running fast enough while they transitioned, and they just signed everybody up for Gmail.
• How good are the data miners?
• Data about effectiveness of the data industry is unreliable → people who sell data for no price is the data that they can’t use
• Gaining real information from people who sell information without buying it is really hard
• Ask about how effective they are based on our observation. Look at places where a lot of effort is going in.
• Doctors and pharmaceutical industry – they measure individual doctors with a great deal of care and act on it with a great deal of abruptness
• They figure out whether to send the pretty boy or girl representative, which lunch/swag to bring, which docs to send to which conferences to act as “influencers” and which ones influence whom
• It seems like this industry is pretty good at data mining
• Selling low-cost items that people don’t really know if they work or not
• Historically, it had a remarkable reputation of “wonderdrugs” when antibiotics were introduced
• Current product is not anything that is inexpensive and clearly effective
• If taken as directed forever, it might work to prolong life, but only relative to sugar pills (imperceptible effectiveness to users)
• Buys off senators like chewing gum
• Advertised to consumers who were data mined into buying some drug that they will never know if it works
• Medical privacy is going to disappear since electronic records will “cheapen” health care → thorny privacy issues will be softened
• Mortgage trade was another example: ponzi scheme required finding people who wanted to refinance their houses
• How credit was sold → “I was just thinking about refinancing, and got a call from my mortgage broker”
• Of course they knew, they had the credit card receipts, the supermarket records, your income, your mortgage payments → they inferred your desire
• Amazon: how often do they hit you up with a recommendation that actually worked?
• That’s primitive shit (in house), same with Disney
• Obama: found activatable voters, volunteers
• Republicans: used to have the voter vault, but still got beaten on election day
• Now looking for RNC chair who knows how to do data mining as good as the Democrats?
• Census was a huge innovation for government at the time → gotta know to provide good services
• What they start counting might be something to fight over, but everyone seems to agree with having the data
• How long until you can get to the raw, personal data in a census? 100 years, and not sooner. Deliberately chosen to be beyond the lifetime of anybody chosen.
• Anonymizing force dividing collection from aggregate data useful to government
• Otherwise, census takers would have needed warrants

-- RickSchwartz - 16 Feb 2009

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