Tag Archives: fourth amendment

Book review: Habeas Data

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What does modern technology say about you? What can the police or other government agencies learn? What checks on their power exist? These questions are the subject of a new book from technology reporter Cyrus Farivar.

Habeas Data (affiliate link) explores the jurisprudence that has come to define modern privacy law. With interviews with lawyers, police officers, professors, and others who have shaped the precedent. What makes this such an interesting subject is the very nature of American privacy law. Almost nothing is explicitly defined by legislation. Instead, legal notions of privacy come from how courts interpret the Fourth Amendment to the United States Constitution. This gives government officials the incentive to push as far as they can in the hopes that no court cases arise to challenge their methods.

For the first two centuries or so, this served the republic fairly well. Search and seizure were constrained to the physical realm. Technological advances did little to improve the efficiency of law enforcement. This started to change with the advent of the telegraph and then the telephone, but it’s the rapid advances in computing and mobility that have rendered this unworkable.

As slow as legislatures can be to react to technological advances, courts are even slower. And while higher court rulings have generally been more favorable to a privacy-oriented view, not everyone agrees. The broad question that courts must grapple with is which matters more: the practical effects of the technology changes or the philosophical underpinnings?

To his credit, Farivar does not claim to have an answer. Ultimately, it’s a matter of what society determines is the appropriate balance between individual rights and the needs of the society at large. Farivar has his opinions, to be sure, but Habeas Data does not read like an advocacy piece. It is written by a seasoned reporter looking to inform the populace. Only by understanding the issues can the citizenry make an informed decision.

With that in mind, Habeas Data is an excellent book. Someone looking for fiery advocacy will likely be disappointed, but for anyone looking to understand the issue, it’s a great fit. Technology law and ethics courses would be well-advised to use this book as part of the curriculum. It is deep and well-researched while still remaining readable.

It has its faults, too. The flow of chapters seems a little haphazard at times. On the other hand, they can largely be treated as standalone studies on particular issues. And the book needed one more copy editing pass. I saw a few typographic errors, which is bound to happen in any first-run book, but was jarred by a phrase that appeared to have been accidentally copy/pasted in the middle of a word.

None of this should be used as a reason to pass on this book. I strongly recommend Habeas Data to anyone interested in the law and policy of technology, and even more strongly to those who aren’t interested. The shape that privacy law takes in the next few years will have impacts for decades to come.

Do you have an expectation of privacy from the Geek Squad?

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In May, a federal judge excluded evidence from a child pornography case because the search warrant was based on impermissible evidence. Setting aside the abhorrent nature of the alleged crime, I think this was the right decision. While the accused did surrender his laptop to Best Buy’s Geek Squad technicians, that doesn’t give the techs carte blanche to search for incriminating material.

It’s not as if the images were in a folder called “Here’s my kiddie porn!” on the accused’s desktop. They were apparently deleted files recovered from the unallocated part of the disk drive. Now it’s entirely possible that they were the accused’s files that he had deleted. It’s also possible that they were from a browser cache after clicking on a risky link. Or that they were from the previous owner of the hard drive (if there was one). As the judge noted, there’s no clear possession.

Furthermore, because the Geek Squad technicians were acting as agents of the government, the standards are a little higher. The fact that the FBI, when applying for the search warrant that lead to the discovery of more illegal material at the accused’s house, omitted key facts did not help.

On This Week in Law (episode 387), one of the panelists (I believe it was Matt Curtis) said reasonable people can disagree, but he doesn’t think there’s a reasonable expectation of privacy when you give your property to a third party. I agree, but it all comes down to the definition of “reasonable”. Unless specifically requested, I don’t see that a reasonable person would assume technicians would search inaccessible parts of the hard drive. After all, he sent in the laptop for repair because it wasn’t working, not to recover data.

The digital era changes the framework for how we consider privacy, both culturally and legally. Nevertheless, the fourth amendment provides a key safeguard to the liberty we hold dear. It should be difficult to prosecute someone for a crime, even when that crime is despicable. Particularly when the crime is despicable.