US appeals court ruling could 'eliminate internet privacy' The US Ninth Circuit Court of Appeals on Wednesday affirmed the 2019 conviction and sentencing of Carsten Igor Rosenow for sexually exploiting children in the Philippines – and, in the process, the court may have blown a huge hole in internet privacy law. The court appears to have given US government agents its blessing to …
Indeed. It's just unfortunate that to appeal this decision to the Supreme Court, one has to appear to be going in to bat for Rosenow, who is clearly an odious individual, and who shouldn't benefit from the "I get away with it because you shouldn't have found me out" argument.
But surely that was always the intent of child porn type laws? You need to find a category of crime that sufficiently odious that nobody will be willing to defend people accused of it. Then you gradually push the envelope of power, but that's OK because its protecting our children.
Given the optics of any reversal and the ideological make up of SCOTUS I don't expect a reversal. This is what all freedom lovers want, after all -- the freedom to impress our version of freedom onto them.
That's a favorite talking point of conservative talk show hosts, but it's completely incorrect. The 9th Circuit doesn't have its rulings reversed anywhere near 80% of the time, it's more like 30%, which puts it at maybe the 3rd or 4th most overturned of the circuit courts.
When you think about that 80% figure, it doesn't even make sense on its face. The 9th circuit will review tens of thousands of cases a year, the Supreme Court only hears maybe a few dozen cases a year. So the idea that the Supreme Court even reviews 80% of cases from ANY of the circuit courts is just laughable, never mind if they uphold or overturn the ruling. I have no idea where this figure came from, but best case scenario it comes with one hell of an asterisk that says it was based on something like cases appealed to the court during one specific term where it just so happened most of them the court took up were from the 9th circuit.
From the New York Times:
In the 2017 term, the Supreme Court heard 14 cases from the Ninth Circuit, reversing or vacating 12. That is a rate of nearly 86 percent,
From the July 13 2021 Los Angeles Times:
The Supreme Court’s favorite target again this year was the California-based U.S. 9th Circuit Court of Appeals, which saw 15 of 16 rulings overturned on review.
Statistics without context are worthless.
The 9th Circuit makes lots of decisions.
Some percentage of these are appealed.
At this point, the USC skims through these, and decides which of these are worthy of scrutiny, based on how solid the decision was, and whether it conflicts with other circuits, or existing precedents.
So the 80% figure is of the decisions the USC decided to review, and is mostly an artefact of the system. It certainly can't be taken as how likely a particular appeal is going to be overturned.
IANAL
Because the judge issued a precedential but harmfully vague ruling in this case, the courts will have to reconcile it with other rulings that are narrower in scope but predate this ruling and hence don't explain how those earlier judgments should be read now.
I think the net result is that this does not instantly overturn all privacy law, but it leaves the courts open to a blitz of legal arguments, and throws a bunch of stuff that was well understood into uncertainty. Neither tends to lead to fairer rulings. So we wait to see if this gets a better treatment in SCOTUS as the TLA's all bullrush the service providers with spammed requests in the hopes they can hoover up information en masse until the courts clarify this hot mess.
The real solution would be congress doing it's job, but I suspect peoples emmigration paperwork would clear long before that happens in the current political climate.
"supreme court"
That one doesn't rule according to law and justice, but more or less according to party policy, depending on how many judges the previous president(s) have managed to shoehorn in: [Some party] majority of judges? Chances are decisions will follow [some party]'s world view, regardless of common sense, justice or other hippy considerations.
"Something is rotten in the state of Denmark"
There are so many ways you could spin this.
A government agency informs a data provider that information that they hold could be evidence of a crime. That this doesn't amount to a seizure seems to be what the 9th Circuit has found. It's a cover-your-arse way of obliging the provider to keep suspicious data without having to clear the bar of having cause for a warrant. If the data provider doesn't preserve it, then destruction of evidence is the consequence. If they do, they're just leaving in place something that might get chucked out.
When would you ever imagine big data voluntarily chucking out their data?
The seizure was the subpoena. No-one seems to be arguing about that.
The 9th Circuit decision seemed casual in the extreme, but I also don't completely agree with what the critics are saying about the 4th amendment. Where is the expectation of privacy when using Yahoo! or Facebook? The TOS already says they will turn over any information they have when presented with a lawful request. I'm a privacy nut myself, but even I don't think there is a right to privacy on a public street. You want your communications to be private, stay away from Yahoo!, Facebook, Google, unencrypted email, etc.
Well... the problem is: what constitutes a lawful request? Is there judical oversight (a warrant)? In that case: sure, no worries. That is a lawful request. (Whether the judges are biased, the law is unfair or whatever does not factor in).
By your argument I would no longer send letters through the mail, as that is a public medium as well... (ok, not what you are saying, I misunderstood on purpose, but that would be a more or less logical extension to your argument). Have a beer, we are all friends here. -->
I would even go so far that a private message (phone call, letter, whispering in somebody's ear, email, instant message in a two-person conversation, private Facebook messages) is fundamentally different than standing on the street corner, on a soap box in Hyde park, posting in a public forum, or posting stuff publicly on Facebook / Yahoo / whatever. The former should all have similar protections, the latter is de facto public information, and law enforcement can just hover up that data.
"Anything that is not encrypted should be regarded as secure and as private as a postcard."
That is irrelevant. You can/should reasonably expect your data to be secure and private unless illegally accessed by a third party. This is direct access to a data store, whether encrypted or not, by the authorities.
To pick up on an earlier example, a letter in the custody of the Royal Mail is contained in an inherently insecure paper envelope however unwarranted opening of that envelope or theft of that envelope is illegal ...
I'm not sure I completely understand US law in this siruation but if it suggests access to data without warrant (or US equivalent) by copying is legal, would that not kick "safe harbour" or equivalent privacy safeguards into some very long grass ...
You can/should reasonably expect your data to be secure...
Meanwhile on Planet Earth . . . You can make whatever expectations you want, they may even be justified but in reality that is not guaranteed so it makes sense to plan for the worst case and assume any unencrypted communications are available to everybody and their dog.
Data should be viewed the same way as a safety deposit box.
Just because the bank is holding the box, does not give the Feds the right to subpoena the bank for access. The box is legally yours, they have to subpoena you to gain access to it.
Why should my data be considered any different, regardless of who holds it, and what their EULA states?
"the data was copied and the defendant was not deprived of it – there was no seizure."
That is a very interesting statement. Apply it to an escrowed cryptographic key and you get an even more interesting statement. The judge is saying that copying bits is not seizure. Does that also mean that secretly photocopying paper documents is not seizure?
I'm sure it will end up in the Supreme Court and of course on the face of it the judge is objectively correct.
It seems to be a viewpoint the courts never consider when a big "content provider" sues someone for "stealing" their valuable IP.
If the IP was copied and the defendant was not deprieved of it there should be no case?
On the other hand i never understood why undisputed evidence can't be used when it was not obtained strictly following all rules.
Of course there need to be harsh consequences for law enforcement if they do something illegal to obtain evidence but that should not allow the criminals to go free.
Personally i think sending offending LEO's to jail (which should although disqualify them for any LEO job in future) is enough of a deterrent for them to obtain evidence using illegal means.
I do not understand why a criminal should get an out of jail free card when an investigator doesn't follow the rules.
"On the other hand i never understood why undisputed evidence can't be used when it was not obtained strictly following all rules."
It is an attempt to deter people from doing more illegal things. Your suggestion to lock up those who illegally obtained evidence is great, but law enforcement never does that to other members of law enforcement. They especially don't do that to someone who just successfully locked up what law enforcement sees as a "real criminal". Disallowing the evidence is a more successful way to prevent illegal collection under those conditions. Instead of having to wait for the police to arrest themselves, a lawyer can make the case and the judge enact a penalty that, while weaker than what would be optimal, actually has a chance of happening.
There is another reason it's done that way. If the precedent is that violations of the law means your evidence gets thrown out, then many similar things also get covered. Coercive confessions, slightly modified evidence, entrapment, and the like can lead to similar cases, whereas if the judges aren't strict about what you can do, someone will do more and more egregious stuff. This isn't to say that the rulings on unlawfully-obtained evidence have eliminated coerced confessions, but they do, along with rulings where those have happened, provide a stronger framework against them.
"It is an attempt to deter people from doing more illegal things"
Exactly this.
"noble cause corruption" - aka "the end justifies the means" is the most commonplace form and most widely excused form of corrupt behaviour, but it feeds into and allows virtually every other kind that continues to exist
When you see it happening it's almost always only the tip of the iceberg
Incidentally "fruit of the poisoned tree" defences are pretty much a uniquly American thing and aren't valid in most other countries
It seems to be a viewpoint the courts never consider when a big "content provider" sues someone for "stealing" their valuable IP.
Citation needed. Are there any precedents for treating this as theft? Just because it's loosely bandied about as theft in media or on forums that doesn't mean it's the word that appears in the pleadings.
"I do not understand why a criminal should get an out of jail free card when an investigator doesn't follow the rules."
Let's take that apart. What do you mean by "criminal"?
(a) Somebody who's committed a crime or
(b) Somebody who's been convicted of committing a crime?
If you reply (a) this raises the question of how do you know who they are? Because they've been convicted? So really your only option is (b) unless, of course, it was yourself, then you'd know for certain.
Having established that, let's say you're going about your innocent way (I'm giving you the benefit of the doubt here) when some investigator who can't be arsed with following the rules thinks you might have committed the crime he's investigating and manufactures some evidence against you.
You're duly convicted and, by the standards I hope we've agreed on, you're a (b); a criminal. You know you're innocent but we all have to call you a criminal because you've been convicted.
You appeal about the investigator having made up evidence and your appeal is upheld. What happens to you?
Your statement which I quoted seems to disassociate "criminal" from investigator not following the rules. By that thinking you're still a criminal because you were convicted so you don't get a get out of jail free card.
Do you now see why the strict rules of evidence aren't to protect criminals, they're to protect the innocent.
I should point out that for a considerable chunk of my working life my job was, essentially, one of the investigators. My ongoing dread was the risk of finding myself part of a miscarriage of justice if I were not ultra careful.
> the strict rules of evidence aren't to protect criminals, they're to protect the innocent
That goes unfortunately way over the heads of most people (even some intelligent, educated ones)...
It's the "as seen on TV" syndrome, where you immediately believe whatever you hear on some semi-official news outlet, stripping it at the same time of any nuance: Suspect = as yet unpunished perpetrator, because if he hadn't done it he wouldn't be suspected, would he! So, off with his head! Kill them all, god will recognize his own and all that. Who cares is a couple of innocent land in jail as long as nobody steals my garden gnomes.
"Suspect = as yet unpunished perpetrator"
Yup, that's one that really gets my goat. "Culprit" is the word for whoever dunnit. Sloppy use of language leads to sloppy thinking - or perhaps is the consequence of it. I'm not sure it was used as much back then. Perhaps it's become more common as a result of more sloppily thought out TV crime series. Or sloppy thinking journalists.
I remember hearing a BBC Radio 4 interview about 10 years ago with the then head of ACPO, the Association of Chief Police Officers (about the most senior police officer in England) about retention of DNA evidence of convicted felons.
He repeatedly referred to people who had been DNA matched with evidence from a crime scene as "criminals", even though a trial had not happened, valid reasons for the DNA to be found had not been considered, and that DNA testing for evidence is not an exact science that only ever identifies one individual (in UK law, a DNA match is considered supporting evidence, and cannot be the sole evidence to convict someone of a crime)
He was corrected by the interviewer to say he really meant suspect several times, but he still continued to say it right up to the end of the interview.
Honestly, if someone in his position does not understand the difference between a suspect and a convicted criminal, what hope does the rest of the legal system have!
Actually my reply would be a) and yes, it does raise the question of who they [criminals] are.
In my post above i said "undisputed" evidence as i do perfectly understand that evidence should not be considered if there is reasonable cause to think it was made up or tampered with or even a coerced "confession".
What i have an issue with is that it is a valid defence to say "they should not have had access to the evidence that proves i am a criminal [even though i can't dispute the evidence in any way to be incorrect/made up/tampered with] so this evidence is inadmissible and without it you can't prove i did it".
As you say i seem to disassociate investigators and criminals: If the investigator commited a crime to get evidence i consider that investigator a criminal and he should be prosecuted for that crime. If the crime doesn't raise doubt that the evidence is valid i think it should not make that evidence inadmissable in court though.
"Actually my reply would be a) and yes, it does raise the question of who they [criminals] are.
See my previous post about terminology and the way it can lead you away from clear thinking. You're in danger of equating "suspect" or "defendant" with "culprit".
In my post above i said "undisputed" evidence as i do perfectly understand that evidence should not be considered if there is reasonable cause to think it was made up or tampered with or even a coerced "confession".
If there is other, undisputed, evidence then that should surely be allowed to stand and there can be a conviction.
OTOH if evidence is improperly obtained than what it tells you should be regarded as suspect. It could, for instance, be missing context. Lets say $ProminentPerson has been killed by shooting. Someone trawls through some sort of harvested social media posts and comes up with somebody saying "I once tried to shoot $ProminentPerson but missed out. I'll try again sometime." Does missing context make a difference?
.
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.
.
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What if the context was that of photographers trying to grab pictures of celebrities?
There have been a number of cases where evidence from mobiles has been presented out of context and the case overturned when the defence finally got there hands on the complete data.
And yet Most Officials would be wrong about this, wouldn't they? The US Constitution is not armor for citizens, it regulates what the State(s) and Federal government can do. As a Brit, were I to travel to the US, I believe that those constitutional rules work for me, too, so I can invoke e.g. the fifth amendment to refuse to self-incriminate?
Here in the UK RIPA means that its not just the plods who can have a nosey around your internet history, data from traffic cameras, where you used your bank card etc. Local councils, the DWP and others can all do this and its a legal requirement that companies holding this data retain it for 12 months.
Whistleblowers vs Criminals; Activists vs Authoritarian Regimes;
Social Media: Twitter: Anonymity vs "Authenticating All Humans":
Imagine how much potential Employers or Governments would be willing to pay to identify people who express opinions contrary their own.
References:
Anonymous Speech: Literature, Law and Politics - Eric Barendt, ISBN 9781849466134
The United States of Anonymous: How the First Amendment Shaped Online Speech - Jeff Kosseff, ISBN 9781501762383
It is gearing up to go full bore, here in the United States. Currently their main targets are pregnant women, or woman wanting to avoid pregnancy in the first place and anyone who helps them with any kind of birth control. Even going across state lines to drag both the woman and anyone helping them back to stand trial.
Some people still do not see women as autonomous human beings, with equal Rights, but somehow women need being told what and how they are supposed conduct themselves, especially in matters involving sex and reproduction. But not the men who have no knowledge of the lives of the women they are trying to control, of course.
This is the start of a very slippery slope, that get slipperier the farther it goes down. Rights? You have no Rights. You helped a woman living in this state violate the law! Crossing state lines, country borders to do so makes no difference. You living in another state does not protect you. You are now a felon under our state laws.
Does that mean it is OK for the government to get someone (i.e. a landlord or ex spouse) to allow them to enter my house and photograph all the items in my possession, so that if they later get a search warrant they will know what to say they are searching for?
Too bad our politics are so broken right now, we could perhaps do with a little update/clarification on the Bill of Rights to bring it into the computer age.
The US constitution was (mostly) shaped for a semi-rural world of landowners, and thus ignores a lot of the changes which have happened in the last century.
Unfortunately this is not likely to change, a) because The Constitution is there to warrant the rights of the people, and governments don't like to be hobbled, b) because it took a bunch of bright minds in a special mood to write one, and nowadays I definitely don't see anyone in both parties capable to even understand what a "constitution" is. The time of educated visionaries is over, we're in the era of narrow-minded bureaucrats staging petty turf wars between two fundraisers.
we're in the era of narrow-minded bureaucrats staging petty turf wars between two fundraisers
Bureaucrats are the least of our problems. One of the major US political parties wants to replace democracy with a dictatorship, followed by pogroms against anyone they dislike.
Edit to add: The people in the stories linked above have told us, loudly, exactly who they are and what they believe. We ignore them at our peril.
Terms of Service are part of the agreement between the service provider and the user, a contract.
In the US you cannot sign away constitutional rights in a contract, at least that was the established view of law.
The ruling is counter to a number of previously established legal tenets.
I do agree with the analogy given by DS999 concerning photographing or copying physical documents. It is still seizure in regards to obtaining evidence even if the suspect (not yet proven a criminal) is not deprived of the documents.
The rules for the government laid out in the constitution are there to keep the government from going against the very people granting the power to the government. The constitution starts "We the people" for a reason, not just a catchy phrase.
> does not the TOS trump everything else
Well, not if hayzoos is correct about not being able to sign away constitutional rights. Illegal contracts are unenforceable in almost all jurisdictions, which is why you find the clauses in the TOS which say that if any part of the agreement is deemed illegal then all the rest of it still stands. Clever lawyers are going to argue for a long time about securing (as opposed to actually obtaining) a copy of information which is possible evidence before there is probable cause.
Well, they're going to argue about it in the USA; in the UK it happens routinely, I expect.
This is all due to U.S. laws, which are authored by the Legislative branch of the government, fact-checked by the Judicial, and acted upon by the Executive.
New law 1: The GAO (US Government Accountability Office) logs *all* 'net data from any member of those three branches.
New law 2: Once requested by a U.S. citizen, no FOIA request regarding content of these logs can be blocked.
Watch the other laws change!
(OK, probably not, but fun to fantasize...)
This a is a very strange ruling. The comments written by the judges about the Terms of Service and that Copying is not seizure are rightly scary and Orin Kerr's write up is very good and accurate.
But the thing is, in this case I really don't see how any of that was particularly relevant for how this case proceeded (assuming the write up by the article's author is correct).
A third party provider (Xoom) identified email accounts associated with an illegal activity. Yahoo, the email account provider, investigated, agreed that there was evidence of illegal activity and passed that information on to the authorities. The authorities, obtained a preservation order. This was not a fishing expedition, they had evidence of illegal activity and email accounts involved, even if they did not have the details of the owner of the accounts. This is not so different to when the authorities get actions against unidentified people in criminal actions. The courts will often freeze bank accounts associated with illegal activity even if the exact owner of the bank account is unidentified.
Over time they were able to identify the owner of the accounts and go after him, and make the arrest. Ok, I dont really no why it should have taken 2 years to identify the owner of the accounts, but maybe he was very good at covering his tracks, or he took a hiatus from being a dirty scumbag for a couple of years, who knows.
But none of this implies that the obtaining of the account info was conducted as a fishing expedition. So why the court felt the need to make a determination and base it on such flimsy ground as Terms of Service and copying is not seizing, when simply saying that the moment the accounts where identified as being involved in illegal activity, then the police where within their rights to obtain proof of the activity (so its not an unreasonable search, when there is proof of illegal activity) and use the information within to identify the criminal involved. This is a hugely dangerous ruling based on very flimsy arguments, which where just completely unnecessary.
Crazy!
This, to me, just underlines the need for courts that specialize in specific types of law, not just a generic division between criminal and civil. We need courts where the judges are actual experts on that subject area so that they can understand the potential implications of their rulings. A court specializing in technology and IP/patent/trademark issues would definitely be one such court system I would implement were I to have a magic wand I could wave around.
This is a sound idea, but it assumes finding enough multiclassed jurists-nerds: You need a bunch of judges and a slew of accusation and defense lawyers able to understand what they are talking about, not only in the jungle-like law system, but also on a purely technical layer. While there might be one or two of those around, I don't think there are enough to fuel a whole court system day after day. Corners will be cut and you'll find yourself once again with people ruling over things they barely understand, guided by "experts" with an agenda.
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