Category: Law Page 25 of 27

You know the people we used to make fun of? The ones who insisted on PGP encryption for “See you at the bar around 8:30” emails? If we’re smart, we’ll be getting more like them, sooner than later. The LA Times helps us understand why:

IN THE LATEST illustration of the Bush administration’s disregard for your privacy, the Justice Department is trying to convince a panel of federal judges that the FBI should be free to read your e-mail without obtaining a warrant.

It’s not all your e-mail — only messages left on a Web-based system such as Hotmail or on your Internet service provider’s computers. A 1986 law forbids the interception and disclosure of e-mail and other online transmissions without a warrant. But there is an exception. If the messages are more than 180 days old, they can be obtained merely with a subpoena or a court order, which investigators can obtain more easily than a warrant.

Now the Justice Department is arguing, in a case before an appeals court in Ohio, that even new messages can be obtained without a warrant if their intended recipient has already read them. The Justice Department views an opened e-mail left on a service provider’s computer as more like a postcard left on a table than a sealed letter in a drawer. Which is to say, its owner has no reasonable expectation of privacy.

To be fair, law enforcement’s disregard for privacy isn’t unique to the present administration. But they’ve certainly taken it farther than any administration so far. And don’t count on Congress, Democrat-controlled or not, to roll it back. There are some folks dedicated to the good fight up there (Sen. Leahy, for the most part), but most politicians couldn’t give a damn about your privacy.

If I want to hear Supreme Court case as it is argued, I have the luxury of being able to pop across town and grab a seat to listen (if I get there early enough). The vast majority of you? For the most part – tough luck. Well, if you add a reminder on your calendar – say, well into the next year, you might be able to snag a recording somewhere. But you’re interested in hearing the process of deciding the most important legal issues of the day? You’ll just have to cross your fingers and hope that the Chief Justice deigns it to be appropriate to permit a time-delayed broadcast. As Dahlia Lithwick puts it:

It’s the modern-day equivalent of the feudal lord opening up the castle to his serfs for one drunken night at Christmas: It’s condescending, it’s irrational, and it reinforces the worst stereotypes about a secretive, elitist high court.

The next open castle will be on Monday, for two affirmative action cases. But don’t you, as a citizen, wonder what it is that the Court thinks makes you unworthy of hearing most of what are otherwise completely open proceedings? I think that Lithwick gets it exactly right – it’s a secretive elitist high court. And sadly (for this particular purpose), there’s nothing that can be done about it. The Court is the sole authority on its own operations, and has chosen to remain as closed as possible to the general public, even 20 years after the Senate opened its chambers to television cameras. All we can hope is that the new Chief Justice is given reason to seriously reconsider the Court’s position before he gets too comfortable with the insulated nature of the place.

I’m generally a strong defender of the judiciary, but in this case, I think they deserve all of the criticism and pressure we can muster.