Archives for: May 2007, 08


Permalink 07:49:01 pm, by fourth, 525 words, 494 views   English (US)
Categories: General

E-mail privacy: New law review article

Leave it to the newspapers to be a source. In today's local paper is mention of a really interesting and excellent law review article: Ned Snow, A Copyright Conundrum: Protecting Email Privacy, 55 Kan. L. Rev. 101 (2007), which can be opened or downloaded here. The Abstract follows:

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the “forward” button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.

The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection.

Would the courts find an expectation of privacy that society would recognize as reasonable in e-mail once sent? As the White House is about to find out, "e-mail is forever." Copyright maybe; under traditional Fourth Amendment doctrine, no because, by sending an e-mail, like mailing a letter, once it is out there, it is fair game.

But, that is the point of the article: E-mail actually inhibits free and frank discussion because of fear of forwarding. What I hate are people that shoot off e-mails without thinking about them, or looking at the recipient (as they respond to an entire list serv with something confidential). Written letters give you time to think, reflect, and change your mind. An e-mail can go around the world in a matter of a second or two. A forwarded e-mail in minutes or hours, and you have no control.

Remember e-mail etiquitte:

23. Do not use email to discuss confidential information.

Sending an email is like sending a postcard. If you don't want your email to be displayed on a bulletin board, don't send it. Moreover, never make any libelous, sexist or racially discriminating comments in emails, even if they are meant to be a joke.

. . .

28. Don't send or forward emails containing libelous, defamatory, offensive, racist or obscene remarks.

By sending or even just forwarding one libelous, or offensive remark in an email, you and your company can face court cases resulting in multi-million dollar penalties.

Permalink 06:05:30 pm, by fourth, 115 words, 612 views   English (US)
Categories: General

News and comment: Man charged with audiotaping his own DUI arrest

In New Hampshire, a man was charged with wiretapping for audiotaping his own arrest when he was stopped. Boston Globe, Dover man charged with taping his DWI arrest (May 7, 2007).

So, let me get this straight: The police can surreptitiously record us, videotape from cars, place suspects in a police car with a recorder, hoping that they will talk to each other and incriminate themselves, videotape the same stop that this motorist recorded, but the motorist can't? What possible expectation of privacy does the police officer have in the police-citizen encounter? The same one that makes him figure that he can lie about the facts of a stop and the judge will always buy the story?

Permalink 07:44:59 am, by fourth, 842 words, 626 views   English (US)
Categories: General

Fire scene search where firemen went to basement to check for electrical problems was not unreasonable

Fire scene search: The fire in defendant's house was confined to the second floor, but water went everywhere and was running down to the first floor and basement. Fireman checked the building to protect against water damage and electrical problems from the water and for a continued source of CO2. In the basement, the fireman found 1250 pounds of fireworks which were unlawfully possessed under federal law. United States v. Buckmaster, 485 F.3d 873 (6th Cir. 2007):

Here, however, the firefighters did not leave and then later return, as in Tyler or Clifford. Their initial efforts were directed at extinguishing the fire in the bedroom; then their efforts turned toward ensuring that the house did not sustain electrical or structural damage owing to the water that had been released in the bedroom, and toward ensuring that carbon monoxide levels were at an acceptable level. All this appears to have lasted less than one hour. Tr. at 35 (Perko Test.); Tr. at 60 (Byers Test.). Nothing in the express language of Tyler and Clifford, nor in what can be inferred therefrom, suggests that it is unreasonable for firefighters to act in this fashion, even if it involves making warrantless entries into some of the rooms of the house not directly affected by smoke or fire. If the government provided unrefuted testimony that water was "basically raining in the basement and coming out of outlets and such things," we fail to see how Buckmaster can claim that it was unreasonable for Madison Township firefighters to stem this flow of water and prevent it from causing electrical shorts or other potential electrical dangers.

It seems an unremarkable proposition that if firefighters are aware of lurking electrical dangers resulting from their efforts to put out a fire in a home--imagine, for example, a homeowner who returns to his salvaged house and attempts to plug an appliance into a moist socket, especially an old socket not fitted with a ground fault circuit interrupter--they should neither have to obtain a warrant nor the express permission of the homeowner in order to alleviate such dangers, especially when they do so, as here, immediately after the fire has been extinguished. This temporal caveat is important, for it makes all the difference in assessing reasonableness. In Clifford, for example, when the arson investigators returned to the house some five hours after the blaze had been extinguished, they were met by a work crew that was not only boarding up the house but was also "pumping some six inches of water out of the basement." 464 U.S. at 290. Had the fire officials in Clifford attempted to justify their reentry at this point on grounds that they wished to ensure the electrical safety of the house (an argument which they wisely did not make), such justification would have been utterly unreasonable and pretextual, because they could of course have taken such action five hours earlier.

Fact dispute denied summary judgment and qualified immunity in case where the plaintiff alleged that she was stopped and searched based on a domestic dispute to aid her husband's cause the day before a child custody hearing. Piers v. Higgs, 2007 U.S. Dist. LEXIS 33006 (W.D. Mich. May 4, 2007):

Plaintiff has sued for violation of her Fourth Amendment right to be free from unreasonable searches, arrest and prosecution pursuant to 42 U.S.C. § 1983. Plaintiff has alleged that Defendant VandenBerg and Defendant Rickey Lynn Higgs conspired to violate § 1983 by planting drugs and a partially full bottle of wine in her car and affecting an arrest the night before a scheduled child custody hearing. Plaintiff further alleges a state claim of malicious prosecution.

. . .

As detailed above, Plaintiff has alleged sufficient facts to show that, if true, there was a violation of her constitutional right to be free from an unreasonable search and seizure under the Fourth Amendment of the Constitution. There is no question that if Defendant VandenBerg initiated a traffic stop without probable cause, such an action would violate the "clearly established law" under the Fourth Amendment. See Ferguson, 8 F.3d at 391; see also Terry v. Ohio, 392 U.S. 1 (1968). Further, examining the record in a light most favorable to Plaintiff, there are sufficient facts which raise a question as to whether Defendant VandenBerg had probable cause to arrest or prosecute Plaintiff after the search of her vehicle. Plaintiff apprised Defendant VandenBerg of the fact she was due in court the next day over a custody dispute with her soon-to-be ex-husband. This fact called into question the motivation and credibility of Defendant VandenBerg's "source" regarding Plaintiff's drug use and habit, which information was allegedly the only reason he was following Plaintiff on that occasion. In light of these facts, Defendant VandenBerg's claim of qualified immunity must be denied.

Claim preclusion of a nuisance case in state court barred a federal case on the same facts. Cornell v. City of Cleveland, 2007 U.S. Dist. LEXIS 33063 (N.D. Ohio May 4, 2007).*

Defendant's evasive conduct in dealing with the officers and her drug history justified a dog sniff when she was stopped. State v. Stombaugh, 2007 MT 105, 157 P.3d 1137 (2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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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