27 Dec 2013 at 12:07 PM

John Yoo, Privacy, Technology

Author Of Torture Memo Says Judges Are Too Out Of Touch To Determine If NSA Violated The 4th Amendment

By Techdirt

John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA’s activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn’t have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA’s bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is… not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that’s the job of Congress, not the courts….

In fact, I do not think that this is fundamentally the job of judges. It may be time to reconceive the rules of search and seizure in light of new Internet technologies — but that is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people. Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs. The president and Congress must take up their duty and work out the rules to govern surveillance to protect the nation’s security, and when they don’t, it is left up to the branch least capable of doing so, the judiciary.

There seems to be no basis for this other than that Yoo believes it to be the case. Courts have always had the role of determining whether or not the actions were unconstitutional. The idea that only “national security” and “foreign affairs” insiders can determine the rules is a recipe for massive regulatory capture by surveillance extremists like Yoo.
Yoo is also embarrassingly misstating Judge Leon’s ruling. He insists that, despite pages of detailed reasoning, Leon cannot claim that the outdated ruling in Maryland v. Smith doesn’t apply here:

Judge Leon cannot claim that the reasoning of Smith does not cover the telephone metadata at issue here, because the data collected are exactly the same as the kind held unprotected in Smith. Leon’s decision instead argues that technology has changed so much that Smith is no longer good law.

That’s clearly not what Judge Leon ruled, and Yoo is being blatantly intellectually dishonest here. Leon noted that Smith covered a very specific legal question, and the legal question here is different. And part of the difference in the question involves collecting a single piece of information on a single person, as opposed to collecting all information on everyone and continuing to collect that information forever. As Judge Leon rightly noted, that’s an entirely different issue than was tackled in Smith. That’s not saying Smith itself is no longer good law (though it isn’t), but rather that the situations are vastly different. I can’t see how anyone can reasonably argue otherwise. Collecting a single piece of information on a single person is incredibly different than hoovering up all information on everyone.
It’s no surprise to see the NSA’s loudest apologists grasping at straws over all of this, but, really they might want to give it a rest for a bit, because their arguments are looking more and more desperate and less and less intelligent.
Author Of Torture Memo Says Judges Are Too Out Of Touch To Determine If NSA Violated The 4th Amendment
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Pitch Perfect Satire: NSA Intercepted Children’s Letters To Santa
FCC Finally Starts Process To Dump NFL Blackouts
TSA Courts Next Generation Of Groping Victims With Cartoons And Coloring Pages

Lawyer Defends Client’s MBTA ‘Up-Skirt’ Photos, Claims They Should Be Protected by the First Amendment

She said in public places like the T, people “cannot expect privacy.”

By Steve Annear | Boston Daily | November 5, 2013 3:33 pm

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Green Line Photo Uploaded by Massachusetts Office of Travel & Tourism on Flickr

A lawyer representing an Andover man arrested in 2010 for allegedly taking photos up women’s skirts on the T argued this week that her client’s actions should be protected by the First Amendment.

Attorney Michelle Menkin told Super Court judges on Monday that the law being used against Michael Robertson—the state’s “Peeping Tom” law—only applies to people being photographed unknowingly while nude or partially nude, in places like dressing rooms, and does not cover strangers in public settings that are clothed.
In 2004, at the onset of technological advances where cell phones with portable cameras became more common, Massachusetts adopted a law to punish secret surveillance of a person who is nude or partially nude in areas where there is an expectation of privacy.
Robertson, 31, was arrested three years ago after he was caught taking photos up a decoy police officer’s skirt, using his cell phone, on an MBTA Green Line trolley.
Following his arrest, Robertson filed a motion to dismiss the charges of attempted electronic voyeurism for lack of probable clause, but his appeal was denied, so he decided to try and get the motion dismissed. Robert’s trial in local court is currently on hold, pending the outcome of the SJC hearing.
Menken argued this week that the current law being used to charge Robertson can’t be the basis of a conviction because, “the statute, on its face, applied to Peeping Tom activity aggravated by the use of a recording device, and does not protect clothed people in public places.”
In a court-filing, she wrote:

…construing the statute so broadly as to encompass photography of clothed people in public venues would render it unconstitutionally overbroad…it would potentially punish artistic  and journalistic activities protected by the first amendment.

“A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public  and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy,” Menkin said in court.
In a counter argument, the Suffolk District Attorney’s Office said that there is an expectation that people should not being taking pictures up women’s skirts, despite the way the law is written, however. “A person has a reasonable expectation of privacy not to be so photographed while she rides the train … [and] that areas of her body that she does not expose to the public will not be photographed.”
Prior to this case, Sen. Katherine Clark submitted legislation on Beacon Hill to refine the language of the law and make it less ambiguous. In her proposal, Clark recommended adjusting the wording in the current state law, so that it reflects technological changes such as the use of cameras on phones, and increases fines for those convicted of violating the law.
Clark also wants to include the words “intimate area” to the state’s law, so that even body parts covered by clothing—like underwear—would be protected. That definition would cover “human genitals, buttocks, pubic area, or female breast below a point immediately above the tip of the areola, whether naked or covered by undergarments.” That legislation is pending, however.
If Roberston’s appeal is denied, and he is convicted under the law, he could face up to two-and-a-half years in prison.

Editor's note: Why doesn't the ACLU seek to enforce constitutional laws to protect against "Elder Cleansing"?  Lucius Verenus, Schoolmaster, ProbateSharks.com

16 Aug 2013 at 2:02 PM

7th Circuit, ACLU, Privacy

IL County Attorney Seeking To Enforce Unconstitutional Law Draws The Attention Of The ACLU

By Techdirt

As was recently covered here, a Morgan County, IL state’s attorney by the name of Robert Bonjean declared his intentions to selectively enforce a state law declared unconstitutional by the Seventh Circuit Court.
The law in question was the 1960 Eavesdropping Law that forbade recordings without the consent of both parties. The court stated that using this statute to prevent citizens from recording police was likely unconstitutional. Shortly thereafter, a citizen (Randy Newingham) was detained for doing exactly that. Bonjean said he wouldn’t issue a “blanket statement” on citizens’ recordings and would take it on a “case-by-case” basis.

The local police chief, Tony Grootens, added to the mess by declaring the detained citizen was ignorant of the law governing recordings, issuing a statement that showed it was actually the chiefwho misunderstood the law. Bonjean then issued a low-key threat, mentioning he had three years to toy with the recording citizen by holding a pending felony charge above his head. Grootens himself suggested he might arrest Randy Newingham if he continued to record on-duty police officers.
When officials start screwing around with the Constitution, they tend to draw the attention of parties very interested in preventing this sort of abuse. Bonjean’s “I do what I want” statement drew the attention of the ACLU’s Illinois branch, whose senior staff counsel, Adam Schwartz, fired off a letter to the state’s attorney demanding some answers.

Mr. Newingham’s action–audio recording an on-duty police officer in a public place–is protected by the First Amendment. See ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012). The Illinois Eavesdropping Act violates the First Amendment as applied to such audio recording. Id. This decision is controlling throughout Illinois. For your convenience, a copy of the opinion is enclosed.
By August 23rd, please advise me whether civilians in Jacksonville will face arrest, and in Morgan County will face prosecution, if they audio record on-duty police officers.

Well, that clears that up, hopefully. It’s tough to say how Bonjean arrived at the conclusion that a circuit court decision affecting the entire state somehow excluded his jurisdiction, but both he and Police Chief Grootens seem to be projecting an air of almost-deliberate obtuseness about the court’s decision.
Or it could be they just didn’t get the memo. (Schwartz has rectified that by sending a copy of the opinion.) Sure, the Supreme Court issued its kick to the curb back in November of last year, but maybe news travels more slowly when it’s news you don’t want to hear.
At this point, there has been no response from either Chief Grootens or Robert Bonjean, according to the Jacksonsville Journal Courier. I would imagine any further comments will be run by a legal team rather than directly from Bonjean’s or Grooten’s brains to their mouths.
ACLU letter reproduced on the next page….

30 Nov 2012 at 4:13 PM

Constitutional Law, Pornography, Privacy

FBI Dad Finds Handy Fourth Amendment Workaround to Bust School Principal for Child Porn

By Kashmir Hill

Thanks to spyware, an FBI dad got a gift-wrapped child porn case.

Like any dad, Joseph Auther was worried about what his son might get up to while exploring the wilds of the World Wide Web. So when his 7th grade son got a school-provided laptop from Whispering Palms School in Saipan in the U.S. territory of the Northern Mariana Islands, Auther decided to install a monitoring program on it. He went with a spyware program called eBlaster from SpectorSoft, a company based in Vero Beach, Florida. Unbeknownst to his son, the program captured his website visits, his keystrokes, and every email, chat, and instant message he sent and received. This was all delivered up to his dad in emails, while giving the monitored person no hint that it was doing so.
Auther has a special appreciation for the benefits of surveillance. He’s an FBI special agent. In April, he discovered he was being transferred to the FBI office in Denver. At the end of the school year, Auther let Whispering Palms principal Thomas Weindl know that his family was moving and that they would be returning the school’s laptop. Weindl, 67, was actually a friend of the Auther family; when he got married earlier that year, Auther’s wife gave a reading at the ceremony. Auther told Weindl that he would return the laptop after he removed all of his son’s files, programs, and games.
Auther first took the laptop to his FBI office and asked his colleagues how to wipe it clean. Apparently they don’t have many cyber experts in the Mariana Islands, because they were unsuccessful. So Auther had to instead take it to a computer repair shop, which cleaned out the old files and allegedly re-imaged the hard drive to return it to its original settings. Auther didn’t tell the shop about eBlaster being on the computer — perhaps feeling a little Big Parent shame — but assumed that it would be wiped along with everything else. He then returned the computer to Weindl….

A week later, Auther was surprised to get an email from eBlaster which had survived the attempts to kill it. SpectorSoft claims that eBlaster is as easy to remove as any other program, such as Microsoft Word, though the company wouldn’t comment on this case or elaborate on exactly how to remove it. I consulted computer geek friends who suggested that a re-imaging should have removed it, but that the computer repair shop may not have done a good job of it.
The eBlaster report revealed that someone was using the computer again, and that the person was much naughtier than Auther’s son had been. The report revealed Internet searches for child pornography and visits to sexually explicit websites, including a few that featured young Asian girls having sex with older men.
“An FBI dad getting email notifications of child porn activity [is] like a gift-wrapped present for a law enforcement official,” noted tech law prof Eric Goldman, who brought the case to my attention.
While Auther wasn’t sure who was using the computer, he became suspicious of Weindl based on the type of porn involved because Weindl had “married a Korean woman, and he now had an 11-year-old Korean stepdaughter,” according to court documents. That seems like the point at which Auther should have opened an official FBI investigation, but that’s not what happened.

Continue reading article at link below:

http://abovethelaw.com/2012/11/fbi-dad-finds-handy-fourth-amendment-workaround-to-bust-school-principal-for-child-porn/#more-209784

Kansas Attorney Accused of Upskirting His Female Employees

03 Jul 2012 at 1:21 PMPosted in:


Crime, Eavesdropping / Wiretapping, Perverts, Privacy

Kansas Attorney Accused of Upskirting His Female Employees

By Staci Zaretsky

It’s been a while since we’ve used the “Creep of the Week” tag here at Above the Law, but today, we’ve got a lawyer whose alleged conduct is quite fitting for the title. Back in May, we briefly mentioned the activities of an alleged law firm panty peeper — an attorney — who according to a lawsuit filed last year, used an iPhone or an iPad to take upskirt photos and videos of his female employees while they were at work at his firm.



Now, just a few months after the allegations hit the news, that attorney has been dragged into criminal court and charged for his allegedly pervy predilections. Let’s find out more about the charges, and the allegations made against him in the lawsuit….





Back in 2011, Jeremiah Johnson, a lawyer from Olathe, Kansas, was accused of rigging iPhone and/or iPad apps to take secret video and photo surveillance of Brooke Bashaw, Katie Sellers, and Lauren Spalsbury, his female employees. According to the lawsuit, encouraged his employees to “wear skirts and high heels” to the office, but it seems that he may have had some ulterior motives for his dress code. From the complaint:







Bashaw, Sellers, and Spalsbury are asking for $75,000 a piece for invasion of privacy, outrage, and breach of fiduciary duty. And here we thought that men from America’s Heartland would have good old-fashioned values.



The authorities have now honed in on Johnson, and have charged him in relation to the civil lawsuit filed by his employees. Fox 4 Kansas City has more information:





Jeremiah Johnson

A Johnson County, Kan., attorney sent his own attorney to a hearing Thursday afternoon on charges he eavesdropped on his employees. The charges stem from allegations made by three women who worked for Jeremiah Johnson. …



Thursday was his first hearing on the misdemeanor charges, although he wasn’t required to appear in court himself.

According to the Kansas City Star, Johnson pleaded not guilty to the charges, but if convicted, Johnson faces disbarment, up to a year in jail, and probation. Here’s some additional video coverage:







It just goes to show that most men tend to think with their boners, not their brains — and according to these allegations and charges, Johnson let his… er, johnson, control his actions. Good luck to this alleged upskirting bandit as he tries to get himself out of a rather sticky situation.



Bashaw et al v. Johnson Complaint [U.S. District Court, District of Kansas]

Johnson County lawyer is accused of peeping at female employees [Kansas City Star]

Attorney Accused of Secretly Recording Women’s Underwear [Fox 4 Kansas City]





http://abovethelaw.com/2012/07/kansas-attorney-accused-of-upskirting-his-female-employees/#more-170984