Tag Archives: right to privacy

SUPREME COURT FOLLY – THE RIGHT TO PRIVACY

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SUPREME COURT FOLLY – The Right to Privacy

A criminal defendant has claimed his cell phone, indicating the approximate location where he is, should be protected under his right to privacy pursuant to the United States Constitution. 
Despite the dubiousness of this claim of privacy, the Supreme Court luggards might approach this claim and case in their traditional way, citing off-point cases to interpret the Fourth Amendment and relying on antiquated sources from the Ivy League – the Brandeis/Warren Law Review, 4 Harvard Law Review 184 (1890).

The Fourth Amendment reads,

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment suggests guidelines, if the information sought is not public, or is using a public conveyance or utility. Once activities, thoughts, or actions come within the public’s scrutiny or knowledge, a citizen loses many protections of the Fourth Amendment. When in public there is no reasonable expectation of privacy. If public, what is an “unreasonable search and seizure” becomes a much larger group of behaviors, acts and manifestations.

A proper analysis of the Right to Privacy is not found in the Fourth Amendment. It is found in the Ninth Amendment of the United States Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment infers the proper relationship between the American people and the national government. The Constitution is a grant of powers to the national government from the American people. Enumerated rights are listed, but it is an incomplete list. The First Congress and the writers of the Constitution did not want to construe, identify and enumerate all rights they could conceive. Thereafter, a right not listed could not be used by individuals against the national government. [This point was made clear in the Virginia Ratifying Convention, circa June 20, 1788, and related correspondence of James Madison, Edmund Pendleton and other delegates.)

What is the Right to Privacy? It was unknown during the country’s founding. However today, all Americans rely on it but have vague ideas of what it means, what it covers and its full extent. The right to privacy, or something like it, appears in Constitutions and in statutes of other countries. Those sources can help define and describe, but any constructed right of the American people must be interpreted and consistent with all other sections and amendments of the Constitution, plus state and federal statutes.

In 1776 James Madison and George Mason, the primary writer of the Virginia State Constitution, made Freedom of Religion a basic right in the Virginia document. However, the state government taxed Virginians to pay the salaries and other expenses of church personnel and of churches. Madison and his constituents believed this government involvement favored certain sects over newer sects. In 1785 in the House of Burgesses Madison proposed passing an Establishment Clause for Virginia. Madison desired Freedom of Conscious – believe and think what you want. Do not expect Virginia to favor and support your beliefs. Madison set forth America criteria. His efforts were successful by 1786. Thereafter, churches (Episcopalians, Baptists, Methodists, Quakerism, Judaism ), on one hand, and Virginia, on the other hand, were separate.

In Memorial and Remonstrance Against Religious Assessments (commonly known as Remonstrance) Madison construed the argument for the Establishment Clause in Virginia and for the first Right listed in the First Amendment of the United States Constitution: “Congress shall make no law respecting an establishment of religion…” The Remonstrance is the only writing where Madison, a Constitutional master unique in all of history of this country or other countries, demonstrates in a flush of pure reason how to construct a Constitutional liberty or right. Madison sufficiently separates the Establishment of Religion from the Free Exercise of Religion.

No American has defined and demarcated any other individual or civic right so clearly and fully as Madison. The Remonstrance presents guidelines, arguments and analyses that Americans should follow regarding any right not enumerated under the Constitution i.e. the Ninth Amendment. The Right to Privacy, as an unenumerated Right under the Ninth Amendment, should require the justices of the Supreme Court begin the construction of that liberty.

What is privacy? What is public? What is semi-private? What is available to the public for a price? What is semi-public? The Fourth Amendment provides narrow guidelines – security in homes and of persons when there is no warrant. But when an individual is abroad – out-of-doors – everything changes. When making a telephone call on a network, the cops cannot listen without a warrants, but indivuduals sometimes listen in. With a cell phone every American can be located, approximately. Is an individual’s location private when he is out in public?  Perhaps in a public restroom although he can be arrested from that location.

The First Amendment – the right to free speech and the right to a free press – have greatly limited the right to privacy torts in civil law. There are dozens of exceptions and excuses from the tort. Again, the Brandeis/Warren article, cited above, urges strict guidelines, which no longer fit the modern society America finds itself in.

Brandeis and Warren like Madison in the Remonstrance noted changes in society and use the current state of American society to define and delineate a liberty. Likewise, privacy today should discuss the commercial realities, benefits and demerits. Today’s case law reflects the move toward greater freedom of speech and the press; it disfavors privacy. Criminal law investigations, specially when documents, objects or speech is public, eliminates privacy.

Today, the collection of phone and cell tower data is not confined to law enforcement. Cell phone traffic and analyses allows providers to improve phone service. It lets cell phone makers improve phones and make their products more capable. And the gross data may let marketers provide goods and services where they are currently unavailable. Note when Samsung had issues of burning phones, it was imperative to contact and locate each of their phones and their owners, easily done because there was a customer list.

Most Americans believe this collection reasonable and beneficial to their society. Most information is available to non-government corporations and entities, businesses and enterprises without warrants, probable cause or reasonable suspicion. The investigation, investment and commerce flowing from data analyses makes life in America better.

If the data are misused, there may be violations of statutes. There are alternatives. If an American does not want to be located, approximately, turn off the phone designated to his name, and buy and use a burn phone. Note that phone purchase usually is monitored by cameras and memorialized by receipts – that investigation is not limited by an individual’s privacy rights. Note further an individual does to have to use credit cards or retail membership cards, where data including locations are made. Get off the grid; Americans can use cash which is anonymous.

Attempting to weave the Right to Privacy around a semi-public instrumenting like a cell phone use requires detailed analysis which is convoluted, complicated and cannot not be part of a Constitutional Right. Note the length of the two Amendments, cited above, no longer than 75 words apiece. Principles and exceptions for the right of privacy for criminals in cell phone use would be prolix, unreasonable and unworkable. There would be no precedents, only singular exceptions.

It is noteworthy that third party claims to a Right to Privacy on behalf of customers can be affected by the ruling of cellphone location privacy rights. The secondary rights of a third party to claim privacy on behalf of customers who are usually criminal suspects is flimsy. Law enforcement officials usually have the suspect’s cell phone and a warrant meeting all the requirements of the Fourth Amendment.

Corporate behaviors become more egregious when one realizes these corporations readily cooperate with foreign governments and provide access, information and account data accumulated from the customers in those countries. Yet they refuse to cooperate with the National government in criminal investigations.

CORE FANTASY

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Apple claims it has a free speech right not to cooperate with the government’s warrant to open the phone, tell what is inside. Free speech in inapplicable. No one is preventing Apple from saying anything, however stupid.

Also, Apple must establish that it cannot open the phone and do much extra work. Next Apple must state that it has not cooperated with every other government and institution on Earth and blocked access to the data on its phones. Moreover, Apple must demonstrate that persons writing applications and compatible programs within Apple’s eco-system do not have an abilities to unlock part or all of Apple’s code.

Apple has submitted no evidence to answer the inquiries in the previous paragraph. To sell in China, do Americans believe Apple did not cut a deal with the Chinese government, one of the most intrusive governments on the face of the planet? (Oh yeah, every Chinese citizen has a right to privacy especially if he owns an iPhone.) If an Islamic Extremist is using an iPhone in Syria, does anyone in the United States of America believe a court, resulting from Apple’s brief today, will prevent the United States government from listening in? (Image a guy in the Syrian desert being observed by an American drone. He holds up his iPhone and yells, “I have my privacy rights!”) I observe McAfee last week offered to unlock Apple’s phone, on his own. It would take three weeks for one person.

Apple’s brief (355 pages) is a data dump. What the California Supreme Court said about long briefs in King versus Gildersleeve, 1889, is applicable to Apple’s submission today:

We are inclined to doubt the correctness of the [brief], on account of
the extreme length of the brief of the learned counsel…Knowing the
abilities of counsel and their accurate knowledge of the law, a brief
of eighty-five pages coming from them …casts great doubt upon [their
argument]. However, the learned counsel may not have had time to
prepare a short brief, and for that reason have cast upon us the
unnecessary labor of reading the extracting therefrom the points made…
(79 Cal. 503, 507-508)

Apple has presented no evidence to support its position. Its brief in opposition to the warrant argues the law. Evidence – facts are the salient elements a court can make a determination about – are absent. Every attorney knows and every juror learns the legal maxim, Argument is not evidence. Argument produces no facts. This point is continually glossed over by journalists, and Apple.

From press reports, albeit the product of journalists, it sounds like Apple has failed logically to construct a right on which to support its non-compliance with the warrant. In order for Apple to succeed, Apple needs constitutional lawyer, who knows how to construct a freedom. The answer is not to be found in the caselaw.

THE REAL APPLE

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When the Constitution was ratified in 1788 and by each state since, was Apple’s right to possess a chip, a software program, a means of communication in the document? NO. Does Apple have anywhere among statutes or constitutional provisions, a means to prevent the government armed with a warrant to serve and require Apple to hand over information? NO.

Yet, Apple claims it has extra-judicial, extra-legal, over-the-top exemptions from the language of the Constitution, whereas the remainder of Americans are fully bound and must adhere to the document and its interpretation.

Apple claims no court should ever issue warrants to learn communications between terrorists or among criminals; only Apple itself has the discretion and the wisdom to view those notes, as violent as they be. Apple believes it has a right to privacy, so it never has to deliver information in its possession that may keep the United States safe.

In essence Apple makes itself complicit in the actions of the perpetrators; the longer Apple dithers the deeper it sinks into the conspiracy. Should criminal liability attach to Apple for interfering with an investigation, resulting possibly in obstruction of justice charges?

Readers may believe they saw this scenario played out on TV, but the real-time, reality component of daily events reveal a rotten core.

What Apple and all monster American information gathering companies want to protect is their own collections of data. Every company knows when users are on computers, asleep, eating, using the pot, and which appropriate advertisement should be sent for specific activities. The time of day is taken into account because the advertisement for toilet paper does not appear when sitting on the big white phone. That ad comes in the grocery store – hurrying to buy a package and avoiding embarrassment at the check-out counter. (The full mobile experience.) Our lives are controlled by computers and their memories, and no one cares about the privacy of Americans!

It is that administered boatload of personal information breaching the privacy of every American, obtained without consent or warrant, that Apple and corporations of its ilk want to protect and keep absolutely secret, until sprung on the victims, unwitting Americans.

U.S.A. 1 Apple 0

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Apple will lose its National Security lawsuit with the United States government. Apple is a corporation. Apple has software which is not protected by Constitutional provisions other than the Fifth Amendment of the Constitution (“the taking provision”). At best Apple can say it has trade secrets to protect.

To my delight and without my knowledge Apple discovers and fixes problems, issues and patches in its software. It gives away for free those updates. In order to make those improvements, Apple must enter a software program, change the code and test its compatibility with the remainder of the software, the apps and the machine itself. There is no backdoor created.

Complaining that Apple is being asked to write a backdoor key to enter an iPhone (and all the iPhones in the world) may not be a solid argument.

There is no right to privacy enumerated in the Constitution of the United States. It is inferred from the Fourth Amendment (Search & Seizure plus warrants). The Government has a warrant. The Fourth Amendment is satisfied. The Right to Privacy is certainly part of the Ninth Amendment, which neither courts want to cite nor humans want to ponder. So the Ninth Amendment has been forgotten.

In the Apple matter does the corporation have a right to assert a right to privacy for individuals who are dead, who committed murder, and who likely are aligned with terrorists, domestically and overseas? The right to privacy belongs to the two dead perpetrators. They are dead; they have no right to privacy. Can Apple resurrect their right to privacy to stop the government’s getting the information from the phone? Note that the information on the iPhone is owned by the perpetrators, not Apple.

One legal issue: Does Apple have standing to assert the right to privacy on behalf of the dead, especially in this case?

This case is a loser for Apple. I don’t know which set of attorneys (big fees, bad result) convinced Tim Cook to oppose. If the case goes forward, Apple and the whole software business will be saddled with a poor, unrepresentative legal precedent which will forever be like law enforcement that now obtains a warrant for a safety deposit box rented to a criminal, getting the key and retrieving the contents.