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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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--Electronic Communications Privacy Act (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)). -
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud -
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848) -
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984). -
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961). -
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987). -
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). -
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765) -
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) -
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). -
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987) -
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967) -
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) -
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989) -
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards -
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp] -
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
---Pepé Le Pew "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: ECPA
National Law Review: New Utah Privacy Law Expands Warrant Requirement for Individuals’ Data Held by Electronic Communications Service Providers
National Law Review: New Utah Privacy Law Expands Warrant Requirement for Individuals’ Data Held by Electronic Communications Service Providers by Allen O’Rourke & Ernesto Mendieta:
EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed
EFF: Faulty Court Ruling That Threatens to Gut Groundbreaking Privacy Statute CalECPA Must Be Reversed by Karen Gullo: EFF and the ACLU of Northern California urged a California appeals court last week to reverse a judge’s wrongheaded and dangerous ruling … Continue reading
W.D.Mich.: No REP in overheard unethical ex parte communication with a judge
An ex parte communication between lawyers and a judge overheard on an open phone line of a part of a call that hadn’t been completely disconnected has no reasonable expectation of privacy. Ideally, there woud be a reasonable expectation of … Continue reading
D.D.C.: Messages through Airbnb’s website and app are governed by ECPA
A search warrant under ECPA to Airbnb was granted. Through its website and app, Airbnb allows messaging, and that makes it subject to ECPA. The government needs to determine which part of this can be unsealed to not compromise an … Continue reading
Just Security: Modernizing ECPA: We need Congressional action despite DOJ’s new gag order guidelines
Just Security: Modernizing ECPA: We need Congressional action despite DOJ’s new gag order guidelines By Ali Cooper-Ponte:
The Hill: Digital privacy bill still abandons probable cause for our papers
The Hill: Digital privacy bill still abandons probable cause for our papers by Mark J. Fitzgibbons
The Hill: It’s time for Congress to update the law governing digital surveillance
The Hill: It’s time for Congress to update the law governing digital surveillance by Jonathon Hausenschild:
EFF: Montana Protects Communications Privacy, But Allows Gag Orders
EFF: Montana Protects Communications Privacy, But Allows Gag Orders by Andrew Crocker and Adam Schwartz (which EFF says violate the First Amendment).
N.D.Ill.: Viewing def’s Facebook page isn’t a 4A violation
Viewing defendant’s public Facebook is [hardly] a Fourth Amendment or Stored Communications Act claim. United States v. Khan, 2017 U.S. Dist. LEXIS 82493 (N.D. Ill. May 31, 2017):
NYLJ: Indefinite Gag Orders Under the Stored Communications Act
NYLJ: Indefinite Gag Orders Under the Stored Communications Act by Peter A. Crusco:
CA2: Child prostitution exigency for warrantless cell phone ping
Defendant’s phone was pinged at the request of law enforcement to find him after they developed strong reason to believe he took a 16 year old girl from Maryland to NYC to work her as a prostitute. This type of … Continue reading
WSJ: Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data
WSJ: Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data by Jay Greene Tech firms including Apple, Alphabet file briefs in support of software giant’s legal case
D.Mass.: PC shown for white collar email search by declaration of investigator that email is commonly used
A federal search warrant issued by a USMJ in the District if Massachusetts could be served on an email provider in Florida under § 2703(b)(1)(A). The affiant’s statement that white collar defendants frequently use email to communicate was sufficient to … Continue reading
The Hill: Let’s close the email privacy loophole now
The Hill: Let’s close the email privacy loophole now by Patrick Leahy & Mike Lee: This week the House of Representatives took an historic step for Americans’ privacy rights. By an overwhelming vote of 419-0, it passed bipartisan legislation to … Continue reading
The Intercept: Email Privacy Bill Passes House Unanimously
The Intercept: Email Privacy Bill Passes House Unanimously by Jenna McLaughlin: The House voted unanimously, 419-0, on Wednesday to bring the law that protects the privacy of Americans’ e-mails into the 21st century. The Email Privacy Act would reform the … Continue reading
W.D.Okla.: Ping order not subject to exclusionary rule under ECPA
A cell phone ping order allegedly in violation of ECPA was not subject to suppression. The warrantless entry into the house was justified by exigent circumstances. United States v. Banks, 2016 U.S. Dist. LEXIS 53876 (W.D.Okla. April 22, 2016). The … Continue reading
Wired: California Now Has the Nation’s Best Digital Privacy Law
Wired: California Now Has the Nation’s Best Digital Privacy Law by Kim Zetter CALIFORNIA CONTINUED ITS long-standing tradition for forward-thinking privacy laws today when Governor Jerry Brown signed a sweeping law protecting digital privacy rights. The landmark Electronic Communications Privacy … Continue reading
The Hill: Time for reform is now
The Hill: Time for reform is now by Richard Salgado: As the debate over electronic communications privacy escalates in Congress and around the country, I testified this week before the Senate Judiciary Committee to discuss this very issue. The hearing … Continue reading
The Hill: Google: Government creating ‘distractions’ in email privacy debate
The Hill: Google: Government creating ‘distractions’ in email privacy debate by Mario Trujillo: Google and other tech advocates accused federal agencies Wednesday of creating “distractions” during the years-long debate on updating an email privacy law from the 1980s. “We certainly … Continue reading
Slate: Our Inboxes, Ourselves | ECPA in Congress, finally?
Slate: Our Inboxes, Ourselves by Mike Godwin An ancient email privacy law might finally be updated. Congress needs to get it right.