Posts tagged ‘Ninth Circuit’

Hope and Change

Libertarians vote for Republicans when they get tired of Democrat's authoritarian meddling in economics.  Libertarians vote for Democrats when they get tired of Republican's tough-on-crime/terrorism/sex/drugs civil rights violations.  But what to do when Republicans like Bush expand government like Democrats, and Democrats like Obama show little respect for individual liberties:

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.

In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages--a position that puts those companies directly at odds with the Obama administration.

Yahoo has been quietly fighting prosecutors' requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday's brief from Google and the other groups aims to buttress Yahoo's position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.

The government theory in the case seems pretty bizarre to me.  I guess the folks who have been trying to convince me to use PGP aren't so paranoid after all.

But all that aside, it strikes me there is a need for legislative action here to cement electronic privacy.  A couple of weeks ago, Julian Sanchez had a good article describing the crazy state of electronic privacy law -- its worth a read because it is hard to excerpt, the rules being so Byzantine.  But here is one snippet:

Suppose the police want to read your e-mail. To come into your home and look through your computer, of course, they'd need a full Fourth Amendment search warrant based on probable cause. If they want to intercept the e-mail in transit, they have to go still further and meet the "super-warrant" standards of the Wiretap Act. Once it lands on your Internet Service Provider's server, a regular search warrant is once again the standard"”assuming your ISP is providing access "to the public." If it's a more closed network like your work account, your employer is permitted to voluntarily hand it over. But if you read the e-mail, or leave it on the server for more than 180 days, then suddenly your ISP has become a "remote computing service" provider rather than an "electronic communications service provider" vis a vis that e-mail. So instead of a probable cause warrant, police can get a 2703(d) order based on "specific and articulable facts" showing the information is "relevant and material" to an investigation"”a much lower standard"”provided they notify you. Except they can ask a judge to delay notification if they think that would impede the investigation. Oh, unless your ISP is in the Ninth Circuit, where opened e-mails still get the higher level of protection until they've "expired in the normal course," whatever that means.

Unfortunately, this aggressive approach to the Fourth Amendment seems to be well embedded in the Obama administration:

Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.

Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority....Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."

This story was interesting, in a creepy Orwellian sort of way, in that it has turned out to be really, really hard to bring suit against this administration for this crime because people have a hard time demonstrating in court that they have standing to sue.  In effect, one has to show that he has been wiretapped to then sue that the surveillance was illegal, but the information to prove that one has been wiretapped is classified and therefore unavailable.  Only an accidental leak allowed this case to proceed.

Welcome, But A Bit Unexpected from the 9th Circuit

This is welcome news for those of us who do business on US Forest Service lands, but pretty surprising coming from the 9th Circuit:

Judges aren't professional land managers.

The Ninth Circuit Court of Appeals acknowledged as much July 2, after
spending the past few years micromanaging the Forest Service in a
series of court decisions that forest industry groups called
"increasingly aberrant."

In a landmark ruling July 2, the Ninth acknowledged that it erred in
its interpretation of a key environmental law and botched Mineral
County's post-burn case.

"We misconstrued what the NFMA (National Forest Management Act)
requires of the Forest Service," a panel of 11 judges admitted in a
ruling released July 2. "We made three key errors in [the post-burn
case]...Today, we correct those errors."

The
ruling in "Lands Council v. McNair," involving an Idaho project,
overturned a 2-1 decision from 2005 in "Ecology Center v. Austin."
McNair and Austin are the forest supervisors for the Idaho Panhandle
and Lolo national forests, respectively.

The dramatic ruling concluded by suggesting that the Ninth should weigh
other public interests in the future, not just claims of potential
environmental damage.

"Though preserving environmental resources is certainly in the public's
interest, the [Idaho Panhandle] Project benefits the public's interest
in a variety of other ways," the ruling stated. "According to the
Forest Service, the Project will decrease the risk of catastrophic
fire, insect infestation, and disease, and further the public's
interest in aiding the struggling local economy and preventing job
loss."

The US Forest Service's mission is a mixed bag, requiring it to balance mining, timber harvesting, recreation, and environmental preservation on its lands.  Such a mixed mission is virtually doomed to failure in today's political climate.  This virtually impossible balancing act has been made more difficult with the recent explosion of lawsuits from environmental groups all attempting to narrow the USFS mission to preservation alone, to the exclusion of other missions.  The 9th Circuit has to date been a leading facilitator of this process of placing preservation ahead of all other goals, in direct contradiction of the will of Congress in any number of pieces of legislation.