Tag: Privacy law

All Your Infos

Well call me Nancy and color me surprised:

Maryland’s Health Connection, the state’s Obamacare marketplace, has been plagued by delays in the first days of open enrollment. If users are able to endure long page-loading delays, they are presented with the website’s privacy policy, a ubiquitous fine-print feature on websites that often go unread. Nevertheless, users are asked to check off a box that they agree to the terms.

The policy contains many standard statements about information automatically collected regarding Internet browsers and IP addresses, temporary “cookies” used by the site, and website accessibility. However, at least two conditions may give some users pause before proceeding.

The first is regarding personal information submitted with an application for those users who follow through on the sign up process all the way to the end. The policy states that all information to help in applying for coverage and even for making a payment will be kept strictly confidential and only be used to carry out the function of the marketplace. There is, however, an exception: “[W]e may share information provided in your application with the appropriate authorities for law enforcement and audit activities.”

Remember, this is Maryland, the state that won the right from SCOTUS to take your DNA on arrested and try to cross-match it any crime in their database. Do you think this state will hesitate to share any insurance information with law enforcement authorities? How long will it take for them to carve out exemptions to HIPAA to force doctors and insurance companies to share information about drug use, spousal abuse or gun ownership?

Oh, I’m being paranoid am I? Well, check out this story. The Border Patrol is using drones to look for illegal immigrants. But they now admit they have shared information from these drone flights with other agencies 500 times. What agencies? They won’t tell us. I’m going to guess we’re talking about ATF and DEA, looking for gun and drug runners, respectively. Also check out this graph showing what the NSA does with information they collect. Notice the inclusion of the FBI, the CIA and foreign governments.

This is what I keep yammering on about with the surveillance state. Once your information is out there, it’s out there. There’s no putting the genie back in the bottle. Information is so fluid, it can flow easily from agency to agency with minimal supervision. All it takes is a few clicks of the keyboard. The constant response of the surveillance defenders — just trust us — was inadequate when government agencies didn’t have our personal healthcare information. It’s doubly inadequate now.

Get a Warrant


The Supreme Court on Monday put the brakes on the government’s use of high-tech monitoring devices to track motorists, ruling unanimously that police and the FBI violated the 4th Amendment by attaching a GPS device to a Jeep owned by a drug suspect.

The justices all agreed that the government needs a search warrant from a judge before it seeks to track a suspect by secretly installing a device on his car.

There’s a little bit of division on the ruling, with Scalia taking the narrower view that it was the placing of the device that violated the Fourth Amendment, while Alito thinks the tracking of the car in general was a violation.

Here’s why these attempts to bypass warrants bother me: warrants are generally easy to get. This is especially true of the FISA Court, which almost never rejects a petition, but even lower courts are fairly generous about this. To track a drug dealer, a simple undercover buy could establish a reason for a warrant. So why the big push to avoid them?

In any case, I’m glad to see the Court bounce this. Maybe it’s just me, but they seem to be having a pretty good session this year. Wouldn’t be interesting if Bush’s biggest achievement was the Roberts Court?

Big Brother Is Getting Bigger

Next month SCOTUS will get a chance to put the kabosh on police agencies getting a little too cute with their toys and possibly violating your constitutional rights in the process:

In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation’s appeals courts: can the police install and use a GPS tracking device to follow a person’s movements around the clock every day for a month—without a search warrant?

The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones’ car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.

You knew this was coming. With the advent of GPS, in devises like lojack, cell phones, On Star, keeping tabs on your vehicle and you is now rudimentary. And by placing a well hidden GPS device on your vehicle, without your knowledge, the cops can track your presence anywhere you drive, sans warrant. So now, you don’t have to be a suspected terrorist, or a drug kingpin, any unsavory types that look like them and criminal activity are simpatico, they get the treatment.

Some obvious questions that SCOTUS will have to look at:

1) If the vehicle is tagged with the GPS device while on private property, isn’t the agent installing the device trespassing? So wouldn’t any info collected from the devise be subject to The Exclusionary Rule?
2) Does stalling such a device constitute a search or seizure? Is using the device a search or seizure? How about long term use, is that a search or seizure?
3) If it is not deemed a search, are there any other privacy issues involved?
4) If a warrant is necessary, how unconstitutional are “open ended” warrants, those not limiting a time frame for it’s use?
5) If the GPS device was installed to track a specific individual and someone else uses that car and subsequent criminal activity occurred, would the GPS evidence be admissible?

I am linking a BAY Area article on the case because here there was two specific cases independent of Jones but with GPS implications that would on their own make them eligible for SCOTUS determination.

Earlier this year, evidence from a tracking device installed without a warrant on a car belonging to Yusuf Bey IV, the former leader

of Oakland’s Your Black Muslin Bakery, helped convict him and another man in the 2007 murder of journalist Chauncey Bailey. Bey IV’s lawyer argued that the tracking data was obtained illegally, but a judge ruled otherwise.

If the Supreme Court rules that installing a tracker without a warrant violates the Fourth Amendment protection against unfair searches and seizures, the convictions of Bey IV and his co-defendant Antoine Mackey could be thrown out and a new trial ordered in the Bailey case, legal experts said. Two other murder convictions against Bey IV and one against Mackey would not be affected.


Last year, Yasir Afifi, an Egyptian-American student at Mission College in San Jose, filed suit after he found a GPS device on his car after taking it in for a routine oil change.

The Council on American Islamic Relations earlier this year sued the government on behalf of Afifi, arguing that his Fourth Amendment rights were violated and describing the tracker as “acting as an illegal trespasser.” Afifi, 20, who was born in the United States, said he has never done anything to attract attention of law enforcement.

The FBI placed it on Afifi’s car without a warrant as part of an investigation about which it has refused to provide details.

Police use the “expectation of privacy” exception to justify the use of GPS in tracking suspects, that while on city streets in public venues, suspects have no expectations of privacy and the use of GPS would be analogous to the cops tailing the suspect in an unmarked car. The problem with this rational is that the cops could only follow you where that expectation is applicable, but where it is not, private property, the tail would be terminated especially if that private property is secured. The GPS device knows no limitations and would continue it’s work, even in areas where it’s very application would be outside of legal scope.

The Jones case is interesting because here the police did get a warrant for the device, but the warrant expired before the device was installed. Using the GPS device, the police were able to gather evidence for a drug conviction. Defense council argued that the evidence was inadmissible due to an expired warrant and the people argued that it did not matter becasue a warrant really was not necessary to begin with.

It is interesting to me that most landmark police cases ( and this will qualify) are the result of the police basically being lazy in the administration of their duties. Extending the Jones warrant would have been almost effortless, yet it was circumnavigated for expediency sake. Miranda, Mapp, cases involving Castle violations, warrants-with the proper probable cause attached- are simple to obtain, yet avoiding that extra step has proved disastrous (and costly) to many police agencies.

I see no problem with police using whatever technological devices available in the performance of their duties, with the clear proviso that all must pass the constitutional test. I would expect the use of willy nilly GPS devices slapped on anyone for any reason without a sufficient foundation of a legal warrant to be unconstitutional and a clear violation of the Fourth Amendment. And the implications of Big Brother being able to track anyone anywhere is chilling.