Torts Evening - Fall 2007
Professor Ralph Brill
Course Information
Discussion

 

1. No matter the time or place in our country, I think one's "right to privacy" will always be a controversial and debatable concept. My generation has grown up in a world where the idea of privacy is becoming obsolete, in fact it is even frowned upon. I blame two sources for this transformation: the media and...the media. It is no surprise that millions of Americans find their daily affirmation in researching what other people are doing with their lives. It all started with the explosion of celebrity paparazzi in the 1990s, escalated with the creation of t.v. shows (e.g. E! and Access Hollywood) devoted to exploring the private lives of the famous, and finally has reached the point of no return with internet sites like Facebook allowing your average everyday person to share his/her boring life with the world.

It was only a matter of time before the Federal government tapped into this vast array of private knowledge made public and used it as a tool to strengthen national security. Surely citizens have every right to complain about the Patriot Act and wiretapping etc. However, by exposing our private lives online, t.v., wherever, we all are assuming the risk that virtually anybody in the world can access that information, not just the government or potential employers. I think it's absurd that some people treat the WORLD WIDE WEB as their personal diary and expect total immunity if things they say pose some kind of threat. I believe the original goal of the internet, was to be the world closer together (don't quote me though, I should consult Al Gore first). Well, it is safe to say whoever started it achieved that goal...and then some. If people don't want their privacy invaded, I say don't expose yourself to begin with! If you have something to hide, talking to the whole world about it on your blog is not the best idea.

I guess my over-arching belief on this subject hinges around a "caveat emptor" society. Yes we have every right to say what we want or believe what we want in the privacy and confidentiality of our home, friends, colleagues etc. However, if one chooses to express that right via a public medium (i.e. internet), beware of the consequences that may follow. The internet is sitting out there, waiting for us to buy into its culture and share our secrets with everybody...just don't expect to get any of your privacy back in return.

Now, if you'll excuse me, I have to update my Facebook profile.

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2. It is almost impossible in today's world to keep most or all your personal facts to yourself or to those close to you. It is inevitable. But do I wish I had more privacy? Sure. I dislike getting phone calls and e-mails and letters from strangers who know my name, the balance on my mortgage, how many accounts I have, my wife's name, my address, my phone number, the car(s) I drive, my age and what I do for a living. It is all out there. So, I am against any kind of intrusion into my privacy, but realistically I understand I am so interwined with the rest of society that I have to give up certain things to get something in return. Now we have very serious "national security interest" post 9/11 where we are even more dependent on the government to protect us. What we need now is not complete privacy, but a system that is efficient to protect us but with checks and balances to prevent unnecessary intrusion into our lifes.

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3. From my perspective it may be a question of how these issues personally touched the different generations. For me, still relatively young, I have vague memories of the cold war and its impact on our culture. However, I could see that there may have been a genuine impact on our own views of privacy here in America compared to those ‘other’ countries. I spent a few years . . . as a Peace Corps volunteer and I’ve heard stories from my friends and coworkers in . . . about how things used to be . . . before their revolution. I could understand that these types of incidents may have created fear for Americans as ‘observers’ in regards to the limitations on freedom under communism. For example, wives telling on husbands (or vice versa) to the . . . government for speaking out against their government which would lead to severe punishments or death. Also, a general paranoia that their homes may be wired. Many older people still maintain this fear despite the vast changes.
To the older generations in America these fears may have been much more real. To today’s youth, however, there is a relative comfort in regards to privacy. They have a good reason to trust. Yes, they do willingly share their own personal information through websites such as my space and face book (though I’ve never been on either) which may actually, more than anything, show us just how comfortable these people are with their privacy. This makes me wonder if youth in the 1980s or earlier had the ability to use these websites if they would even feel comfortable/safe in divulging such private information because the wrong person/government might be watching.
Also, I believe that this generation is concerned with terrorism. It has touched their lives. An invasive American government is probably not the concern but rather attacks from outside with our own government being our main protection.
You asked whether we believe that the government should have the right or ability to eavesdrop or seek out personal information for the overall purpose of national security. This is a difficult question. At this time I believe that the value it would create would outweigh the disadvantages (security for me and my loved ones over the possibility that abuses would result). However, there’s the danger that it would not be temporary because who can really say we are ever safe again? Maybe we make the sacrifice for this year, but in the absence of any tragedy, when can we say there’s no longer a threat? When do we tip the scale the other way and say that privacy outweighs a potential attack? Perhaps if the government was to abuse their right to eavesdrop or seek out personal information in a substantial way, where there’s no imminent fear of a terrorist attack, people would demand a change in this type of policy.
You also asked whether we see a difference between a people’s right to put out all kinds of information about themselves on Facebook or Myspace and others' rights to seek out and use such information? I believe that if a person publicizes their private information on a easily accessible website that they should be aware (or foresee) that this information would be accessed in a way that he/she would disapprove. I believe that the person in this case has consented to giving up their privacy in regards to the information he/she posts.

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4. Before I give you my opinion, I give you some background that might suffice to convince you that my opinion isn't representative and therefore not survey relevant: I'm 33 and European (that's Europese for those that prefer Mr. Bush's lexicography.) . . ., to be precise. Hence I may be too old and too foreign.

>Basically, do you feel that the government should have the right or
>ability to eavesdrop or seek out personal information for the overall purpose of national security?

I feel that the government has the right to access (without a limited warrant, which should be obtained only on a preponderance of evidence) only what is essentially publicly available. Maybe what can be googled by 'the ordinary reasonable person'. So, yes, the government can seek out information that is available anyway, and no, the government has no right to 'pre-emptively' get my DNA, read my email, listen to my phone conversations, see may bank accounts etc. The purpose is irrelevant because it's an invasion of my privacy. It is particularly important that there be judicial oversight (i.e. a warrant) to provide a system of checks and balances. Due process.

> Do you see a difference between your right to put out all kinds of
>information about yourself on Facebook or Myspace and others' rights
>to seek out and use such information?
>(for example, in deciding whether to offer you a job).

Yes. It's _my decision_ what information I want to make publicly available. Once it's public, it can of course be found by anyone, but I guess that's the purpose. If someone seeks out publicly available information, then that's fine. After all, nobody obliges anybody to put up information in the internet(or the phone book, or the ads section).

The sad part is that it seem like it's all a moot point. When push comes to shove, the government seems to have the ability to selectively apply or not apply the law at its will. Case in point is the denied writ of certiorari by the Supreme Court of El-Masri this week (mistaken identity in an 'extraordinary rendition'), or Guantanamo. Fear is such a convenient means of governing. It's hard to preach sound morals and demand that everybody play by the rules, if considering oneself beyond reproach.

But, in a torts class (evening) that so strongly finds that 'a duty to help another in danger of death or severe bodily harm, without risk to oneself' too much of an invasion into their personal affair, you should be having a hard time finding anyone in favor of eavesdropping!

Since you mentioned eavesdropping, you should find this article published in the IEEE Spectrum magazine (the Inst. of Electrical and Electronic Engineers) interesting, on a massive case of eavesdropping during the Athens Olympics (http://www.spectrum.ieee.org/print/5280). The case is mind-boggling and blows James Bond right out of the water! Better yet, it's not even a conspiracy theory!
Although it is not known who did the eavesdropping, it's assumed that one of the few organizations capable of pulling such a stunt might be the NSA.

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5. A couple of thoughts - I am not in the class of student who believes that the "dangerous world" we live in today should allow the government to infringe on our privacy as provided by the constitution. The irony is that this administration may be the most private since Nixon. Through the expansion of executive privilege, their obsession with controlling leaks, and their control of the press, this administration has cut off the public. You would think that an administration so hell bent on secrecy would respect the notion of individual privacy. This world has shrunk tremendously over a very short period of time causing lives to become more public and more accessible. If people choose to put there lives out there for the world to see that's their prerogative, that's their choice. However, information that has been held out of the public eye should remain that way. The government has no right to expand the law to invade that space. My generation clearly takes our freedoms for granted. If you believe that we are under a serious threat that justifies a invasion of privacy, fine. If you think its ok for the government to cut corners during investigations because its for a greater good so be it. But the problem is that those old public safe guards, shielding us from the governments abuse of power don't just grow back, they have to be replanted. We're allowing the government to expand its power, to disregard the constitution. We're allowing the executive to restrict its accountability. You take those two ingredients and throw in a dash of disaster and you're looking a wonderful little dictatorship cake. The rub is, if that were to happen, we would have no one to blame but ourselves. These are just instant responses. Just some gut feelings and ideas that need further development. But for those people who say - if I have not done anything wrong, why should I worry? I would tell them to take a trip down to guantanmo and maybe they'll find their answer.

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6. I am absolutely troubled by the government's intrusion into privacy. I should say, though, that being over 40, I can't claim to be in this generation of students. I really can't see what part of the 4th Amendment the government doesn't understand. I'm obviously no legal scholar, but the language seems pretty clear: the right of the people to be secure in their persons.... against unreasonable searches and seizures, SHALL NOT BE VIOLATED, and NO WARRANTS SHALL ISSUE BUT UPON PROBABLE CAUSE (emphasis obviously added). Our government seems to do this anytime we have a "war", sacrificing freedoms in the name of "security", and I've seen no evidence that it works, but if they were like the current administration, we'll never see any evidence anyway. Isn't there a Ben Franklin quote about a society giving up freedoms for safety is neither? I'm not a history scholar either. I have a very conservative niece from Texas (is your colleague from Texas?) who is about 30 years old, and when we were arguing about the Patriot Act, she used that tired argument: "None of those rights mean anything if we aren't safe." She really believed that we were safer by giving the government more power. But I do think that anything people put up on Myspace or facebook, or anywhere on the Internet is fair game. Myspace and Facebook are more for the younger generation, but if I Google myself, I do see a posting I made to a music newsgroup back in 1996 talking about seeing one of my favorite bands and boozing it up. So information is out there, easily accessible, without the need for warrantless wiretapping.

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7. Interesting topic... and one to which I've given some thought. I am completely against the government eavesdropping on people's conversations without strong evidence that the people targeted are in fact terrorists. Giving the government carte blanch to pull anyone's telephone conversations at a whim is just too dangerous. I strongly believe that as citizens of this country we have an inherent right to privacy (although not specifically set forth in those terms in the Constitution) and this is a right that should be protected. I understand the importance of national security; however, I just don't feel that giving up more and more of our privacy is going to accomplish the goal of making the US a safer place against terrorism. I think the government is using the excuse of national security to "legally" obtain and use more of our personal information for other, non-security related purposes. Maybe I'm just a cynic. With regard to information on the web, it would be hard to argue that people (e.g., employers) shouldn't use that information when making certain decisions. This is especially true if a person posts personal information about themselves that would not have otherwise come out in a regular employment background check. I feel people should be more responsible about what they say and what they post online or be prepared to face any consequences that may arise. So, in response to that portion of the question, should employers have a right to search information about you on the web? Well, if you have a right to put up pictures of yourself passed out at a party, then I guess others are going to have a right to see them if they're on the web. Once you post - it becomes part of the public domain. Should they be used as a basis for a decision, say a job offer? I don't see anyway to tell someone not to use it to base a decision on. In all honesty, I used the web to find out information on all of my undergrad professors and my current professors, because I wanted to get a sense of their background, education and I used that information to decide where I wanted to attend school. Isn't that the same thing? If I saw a picture of my Torts teacher-to-be passed out drunk at a party, it would reflect on his character and yes, that is something I would use to decide whether I wanted to go to that law school. Of course, I disagree with employers trying to find out if you're black or white or married or have children or are a liberal or conservative, and using that information to determine whether to hire you or not - but that's really that whole other problem of discrimination. Since I am concerned with privacy, I do request that in the event you refer to this or forward it on, you please remove my name.

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8. I don't believe that the government should have the right or ability to eavesdrop for the overall purpose of national security. An individual has a "right" to privacy and no matter the government interest, this right should be upheld. I believe Benjamin Franklin was attributed to have said, "Those who would give up essential liberty to purchase a little temporary safety, deserves neither liberty nor safety." I like that. If the information is published to a community or public, as in the case of the Facebook, etc., I think the rules to the game have been changed and anyone, for any interest, should be allowed to use it. By publishing something to a community at-large, I think an individually is effectively waiving his "right" to privacy.

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9. I'm at least 10 years older (but not necessarily any wiser) than most students in the class but I'll take a shot at it.

- Anything I post about myself in a public forum on the Internet, I expect to be available forever to anyone who looks for it. Therefore I consciously choose to not post certain types of information (like my social security #, kids names, how much I drank last weekend...)

- Anything I post in a private forum on the Internet I expect to probably remain private but with the possibility that it will not. So again, I censor myself, but not as much as in a public forum. In a designated private forum I expect a degree of privacy though I also suspect that others may not honor it. I may post anonymously, but knowing that even anonymous posts can sometimes be traced accurately.

- I do not believe that the govt should be able to eavesdrop on communications that I undertake with an assumption of privacy, unless they have cause to suspect that I'm a threat to national security. How high to set the bar for this suspicion is a whole topic of its own.

- If I really got paranoid I would use programs that encrypt my email, my laptop hard drive, and erase unused parts of my hard drive. So called military grade tools are readily available. Maybe the NSA can hack them anyway...I don't know.

You're right, this is more appealing than Torts. Just kidding, of course. :)

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10. I am so surprised to learn from your professor friend that most of his students are not bothered by what the government is doing! While I can understand how some people are easily "brain-washed" by the media to believe that an infringement on our privacy is a "necessity" for national security, I would like to think that people such as law students can see through the entire charade.

I have been outraged by the Patriot Act since day one. I think it is not only unconstitutional, but also ludicrous that we, the American people, are allowing the government to act as Big Brother. While it's true that most of us do not have "anything to hide," the question soon becomes "Where do you draw the line?" I read in a recent article that one girl was arrested at her home for being a member of an animals' rights group. The FBI actually came to her home and took her in because they thought her devotion and strong beliefs had landed her on the terrorist list. Over the summer, when I checked out The Communist Manifesto to read, I jokingly told my friend that I just might be blacklisted by the government. If we allow the government to snoop into our private lives "in the name of national security," what else can't they do next "in the name of security"?

As for information sharing sites such as MySpace of Facebook, I have no qualms with the government (or anyone else for that matter) to view the information. There, a person has the choice of making certain aspects of their lives private or public. If a person chooses to write about his or her desire to murder someone, that person should not become outraged if the cops show up at the door. Furthermore, sites like Myspace and Facebook give users privacy settings, so one can make one's information as private or public as one so desires. Hence, I don't find anything wrong with a potential employer rejecting a candidate if the employer had public access to the pictures the candidate posted up from last night's debauchery or any illegal actions.

These topics actually interest me very much. What are your thoughts on this?

difference between your right to put out all kinds of information about yourself on Facebook or Myspace and others' rights to seek out and use such information? (for example, in deciding whether to offer you a job).

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11. I should first admit that I do not use facebook or any computer sites like it, so I may be in a different category of people. Personally, I worry about the view "If I have not done anything wrong, why should I worry?" Perhaps the immediate implications to innocent people cannot be felt, but I am of the opinion that where a powerful government begins to wedge their foot in the door of private citizens, it could be only a matter of time before a government in the wrong hands, if not already, kicks it in with little resistance. If rights can be eroded or dismissed on the basis of fear for security, it seems that all rights allowed to citizens could potentially be at risk. I may suffer from a bit of paranoia, but I do not have unflinching faith in the inherent "goodness" of government. While this does not mean that anything terrible will necessarily happen, as a citizen, I feel far more comfortable knowing that there are limits to government rights, as well as our own.

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12. I find this very alarming. Anything that someone offers up into some kind of public forum is fair game; there is no expectation of privacy there. As far as the rights and abilities of the government there needs to be a checks and balances understanding. What I mean is that I am okay with the government having the ability to attain personal (i.e. private) information about someone for investigative purposes. The government does not have the right, in and of itself, to decide how to go about this or who/when to investigate. That's the part that's frightening, I have no faith in a government (executive branch really) that has abused its power over and over again. National Security is an issue, but not nearly as big an issue as the steps that have been taken to "protect" that security. I don’t think you can put a body count (price tag) on the bill of rights.

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13. I do not feel that the government should have a right or ability to warrantlessly eavesdrop or seek out personal information, for any purpose. With the internet, Facebook, and Myspace, a person should understand that they are putting personal information on a public domain. However, it is not right for anyone to have unauthorized access to parts of that information that are protected. For example, if I give my email address to Facebook for registration purposes but choose not to show that address online and prohibit it through a preference, then that information should be private. The government agents have the right to browse these pages just like any other person, but they shouldn't be allowed to "hack" them warrantlessly. I also feel that companies who download information about you when you are on the internet are invading privacy, and that something should be done about it.

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14. I think anything put on an unsecured or unrestricted website is fair game because you have posted something on a public forum for anyone to see. There is a valid argument that you want anyone to have access to it because you have not restricted it and therefore have waived your right to privacy regarding this information. It is very different if you make a secure website or restricted facebook page because you have taken steps to make sure that your information is not public. So I think a smart employer will look at non-restricted facebook or myspace pages and I don't believe that is a violation of that person's privacy because they have made it available to the public. However, it is a completely different matter if the government eavesdrops or seeks out personal information that is not on a public forum even in the name of national security. We value both Individual privacy and national security and the scales should only tip towards national security in extreme circumstances. The role of a warrant is (in theory) to make sure that there is enough evidence that this is a clear national threat and that wiretapping will provide some helpful information before violating someone's privacy. Wiretapping and other privacy violations should be used only in extreme circumstances; otherwise, you risk turning into a Big Brother government or another McCarthy era. I think many people don't realize that in an environment like that you can get in trouble for not doing anything actually "wrong," but just for having different views. That sounds like a scary, homogenous world.

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15. This is actually a very hot topic for me currently in my line of work. I'm a Senior Security Engineer for a medium-sized .com in the downtown area. Currently, we are investigating secure web gateway solutions. Basically a secure web gateway will block any attempts to visit websites that are deemed inappropriate by our HR staff in the workplace. An additional feature of the secure web gateway is to monitor and log all traffic. If you decide to go to www.playboy.com from your desk, for example, we'll know.

Our HR staff is very concerned about the backlash from employees once this product is rolled out. We have a very young average employee age and this project's existence on the rumor mill is already stirring up quite a lot of resistance.

My personal view on monitoring such as this is that it is a necessary evil in the workplace. We have to be able to protect our corporate assets by identifying and locking down users who knowingly or accidentally encounter viruses and malicious content during their Internet experience. Any infected machine in our corporate network is a direct threat to us. If we don't find these machines and stop the spread of infection, there is a high probability that some of our sensitive data will leak to our competitors.

However, I'm not sure an analogy between the necessity to monitor in the work place and the necessity to monitor the public at home is appropriate. At work, we are more concerned about accidental virus infection, or a user accidentally browsing porn which would create a hostile work environment for others. The government is more concerned with identifying and stopping malicious people.

There isn't a security measure we can put in place that an intelligent and malicious employee couldn't circumvent. Similarly, with the sophistication of today's encryption combined with the freely available proxies on the Internet, there isn't a way to stop an intelligent and malicious criminal either. If a criminal had any reason to believe his or her actions were being monitored they could employ very basic encryption or proxy methods that would make any government monitoring near useless.

Consequently, I do not think any methods employed by the government to monitor the general public deter or identify very many malicious people. The people who are being monitored will be the innocent ones; the intelligent criminals will slip through the cracks and still cause as much damage as they did before any monitoring was put in place.

To address your MySpace and Facebook comment, I think this is a very simple concept that my generation completely fails at grasping. Everything you put on the Internet is available for the public to view at any time unless you take steps to secure it. MySpace and Facebook both have privacy settings which will only allow your friends to view your entire profile. If people want to put up pictures where they are taking shots of Jim Beam and puking off balconies, that's great. Nevertheless, if you don't secure them, your employer will find them. This isn't a privacy issue; it's a stupidity issue.

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16. In response to your question, I do not feel that government should have the right to eavesdrop or seek out personal information for an overall purpose of national security. The central reason that the government has given for this expansion of surveillance is in regards to the threat of terrorism. There has been countless pieces of evidence showing that other means of information, i.e. informants, terrorist watchlists, and such, all provided our government with ample information to find and capture threats to our security. In response to the expansion of the clandestine services, completely innocent men and women have been captured by the CIA and held prisoner for countless months, faced torture, and then not even an apology given when the error comes to light. There is no doubt that terrorism is a daunting task, but it can't simply be defeated by military might or clandestine intelligence gathering, but a straight forward and problematic approach to the causes of terrorism, namely the changing global climate and our place as a nation in it.

On the issue of facebook or myspace, I feel that commonsense should prevail and that any information that you put on such a network, be prepared that even your mother or boss may see it. . . . I am chilled at the relative ease that intel personnel can create and destroy identities, not to mention track down any person necessary. In a shrinking world like the one we live in today, while I disagree with companies and governments clandestinely gathering information on their citizens, my feelings won't stop them from doing so, and so the best guard against eavesdropping is transparency. Would you do it if your mother were in the room?

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17. Though I am not of the persuasion to partake in Facebook and MySpace personally, I could put forth arguments in support of tracking U.S. residents and certainly non-citizens. It smacks of the Japanese concentration camps we formed in WWII, that is, unwarranted attention to and prosecution of people that may be risks to the country. On the other hand, today's terrorist threats are identifiable by at least their religion, so it is logical to pay more attention to people of that persuasion. I realize the attention would not necessarily be limited by religion, race, country of origin, etc..., but I bet it would be mostly centered on perceived threats to the country/government. On the other hand, if there is no system of checks and balances (e.g., the Bush administration's highly secretive manner of operating), then the actual extent to which we may all be monitored for nefarious purposes (I rarely get to use that word, my apologies), such as marketing, may never be known. That, I admit is scary, and makes me think about what the true price of freedom from Big Brother is within the U.S., the loss of ~2500 people every so many years? That's less than 1 ten thousandth of the population, maybe it's worth it, unless it warrants another Iraq.

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Just briefly, I think that all of this spying without warrants stuff is terrible and frightening. History shows that unwarranted domestic spying damages our civil liberties - undermining legal protests against government policies, mislabeling citizens as traitors or spies, etc. There are ways to fight terrorists without impinging on our rights - the check and balances system is crucial in this.
1 - harmful to legal opposition to government policies: I think it's important for the health of the country to have dialogue from all sides of every issue. If the government can easily spy on whoever they want, without a system of checks like required warrants, it would be quite easy for the government to squash one or more sides of any political debate through deliberate manipulation or through fear. Our communication tools - phone and now, especially, email and the Internet - are how people organize. Without warrants, the government could easily misuse their power to view our communications - to find out when protests are going to happen and stop them, to infiltrate peaceful protesting groups and undermine their activities, to publicize private communication between people that they would not want publicized, so as to hurt their reputations, or just to scare people into inaction. We should be able to legally communicate to each other and discuss our political and social beliefs without fear of retribution from the government.
2 - mislabeling citizens (specifically, me) as traitors: I do participate in Facebook and a few of the other networking sites. (It's a reliable way for me to keep in touch with friends - many of whom are not so reliable about staying in touch.) I think there's a big important difference between those sites and domestic spying - I choose what I put on my websites. I can control the content and the context. On the other hand, if the government were to intercept my emails and phone calls, I can not control what they hear and I certainly can not control how they interpret it. If they could spy without warrants, it's possible they could look at someone's active participation in peaceful protests or civil disobedience, deem them a threat, spy on them, and then, possibly take something that is said out of context and wrongly arrest them as threats to the government. As it is, peaceful protesters are wrongfully arrested and detained (and, often, mistreated) all the time. I don't want to imagine what it will be like if the government, without cause enough to get a warrant, can see not only the actions that we do decide take, but also all of the actions that we consider taking.
I have many other reasons why I think allowing spying without warrants is wrong - none based on legal principles (yet) and some not so mature (we can't see Cheney's emails and I help pay his salary; why should he get to see mine?) :)
I apologize for all grammar and spelling errors in this email. Please don’t take this as a reflection of my abilities to create cogent arguments. I'm passionate about this issue so I wanted to respond, but I also want to be on time to your class :)

I don't have a lot of time to respond, but I wanted to briefly give my opinion. I think that there definitely needs to be restrictions on the government when it comes to eavesdropping or seeking out personal information. In class, we often see the courts struggle with the issue of "where to draw the line" (e.g. who you owe a duty to). Similar to this, I think that if the government can eavesdrop on our conversations "for national security", what else can they do for "national security"? I think it creates huge problems in regards to our right to privacy. I do think that this issue is different from putting information on Facebook and on the Internet in general because I know that I personally think that anything on the web is fair game to anyone. (Thus, I refuse to put up anything too personal.)If you can post things on a website for thousands of people to see, you should not expect much privacy and people should not be punished or restricted for seeking it out. I think that the expectation of privacy is different on the Internet. I'm not sure if this is just me, but for some reason the government eavesdropping on my phone conversations bothers me a lot more than them seeking out my information on the Internet.

Have a good night!

The government has a the right to seek out and use private information to maintain national security, but I think they should get a warrant from a court before they are allowed to wiretap. I think warrantless wiretapping is a slippery slope to a police state.

One of the reasons I use Facebook instead of Myspace is because Facebook gives me some control over who can see my personal information. (I heard Myspace also has implemented similar privacy measures recently) but users are reminded that those measures are not perfect safeguards against information leak into cyberspace. However, after we employ some basic safeguards of our personal information, the benefit of using these social networking sites outweighs the risk.
People who think they need not worry if they haven’t done anything wrong perhaps can be characterized as naive. The potential misuse of private information can lead to serious consequences, and one day they may reach a different conclusion when they are not allowed to fly (for a a job interview, to testify as a witness, or to visit grandparents for Thanksgiving – I guess they can always drive, but my destination is Hawaii!) because for some unknown reason their names are on a no-fly list. A report by CBS 60 Minutes said that “Robert Johnson” is one of such common names on the list.

The government is maintaining these presumably large databases of biometric data (foreign visitors to the US are now required to be fingerprinted and their pictures are taken at the airports). I wonder if they have found meaningful ways to sort through this data, to use it for useful purposes? Have they sought help from the brains at Google on the algorithms to filter the noise from the signal?

In general, I do not think that the government should have the right to eavesdrop or seek out personal information of ordinary citizens for the purpose of national safety. Despite the fact that I put pictures of myself and some information about my life on the internet (facebook), I have a major problem with the government having the right to my personal information (beyond information that I would put in an online profile) for the purpose of national safety. The government can look at my facebook profile if it wants because I have it set up for public viewing (or whatever the default is), but beyond that the government should have no right to any transmissions or information of mine without my consent.

Obviously this is a hard question. If you told me that 9/11 could have been prevented by allowing a law that would infringe on my privacy, it would seem callous to say that I would still oppose that law. But I would. If terrorists want to do something, someone somewhere will find away to commit the act of terror, regardless of wiretapping or allowing our information to be government accessible.

If the government can prove to a judge that it is reasonably possible that a person is a terrorist, then I think wiretapping, etc. is appropriate. This is a general standard, I realize. This is to illustrate that I don't think the government should have to prove a terrorist guilty to be able to wiretap - they should only have to prove a REASONABLE or PROBABLE suspicion.

In other words, I think that allowing free eavesdropping and personal information gathering concedes way too much of the personal freedom that this country (and many like it) were founded on. In fact, this accomplishes exactly what terrorists are trying to do - scare our country into a state of paranoia and unhappiness. It gives the government too much power and allows it more wiggle room to take away more freedoms in the future. "National security" becomes a cheap way for the government to take away our freedoms.

I have a major problem with giving up my personal information in the name of national security.

I don't have any great concerns over the government eavesdropping on my conversations, or researching my interests/activities/involvements for the purposes of national security.  My only concern would be how they are allowed to use what they hear / find in cases where my offenses may not be of great public harm.  If the government eavesdrops on my conversation, or based on their research into my activities, believes I am involved with an act that may result in significant public harm, I would expect them to detain and question me.  Even if I might be detained unnessarily due to a misunderstanding once my conversation is better understood.  However, I think the government's ability to use the information obtained via these intrusive means needs to be restricted to possible involvement in acts which may cause GREAT public harm.


To the extent the government eavesdrops on a converstation and determines I am planning to commit insurance fraud, or plan to steal my neighbors car, these acts, although criminal, will not cause great public harm.  Therefore. I would not expect the evidence they obtained to be admissable against me.  The government may choose to advise me of what they heard, hoping that by acknowledging that they are aware, I might be detterred from proceeding, but I would not expect to be detained or questioned on the matters.  I also believe that evidence obtained this way should be inadmissable even if it proves I have actually committed insurance fraud, or actually have stolen my neighbors car.  Unless the information obtained proves that I was actually involved in an act that caused great public harm, the government shoudl be barred from proceeding on information obtained through these intrusive means.

To the extent the government eavesdrops on a converstation and determines I am planning to commit insurance fraud, or plan to steal my neighbors car, these acts, although criminal, will not cause great public harm.  Therefore. I would not expect the evidence they obtained to be admissable against me.  The government may choose to advise me of what they heard, hoping that by acknowledging that they are aware, I might be detterred from proceeding, but I would not expect to be detained or questioned on the matters.  I also believe that evidence obtained this way should be inadmissable even if it proves I have actually committed insurance fraud, or actually have stolen my neighbors car.  Unless the information obtained proves that I was actually involved in an act that caused great public harm, the government shoudl be barred from proceeding on information obtained through these intrusive means.


Blanket warrantless (with the implication that it's "causeless") surveillance is disturbing...I think that given unlimited resources & access, some portions of the gov. would want to watch everyone all the time & it seems like we'd lose something of our national identity (as individuals; there's no telling what our "national identity" as a whole is (or is perceived to be), but my wife, living in Berlin, tells me it ain't good) if this type of thing were done, regardless of what's happening on an international stage. That's always been sort of the lynchpin of our freedoms, in a way...I can tell you, or anybody else, to go to hell, publish a newsletter that condemns the crazed powers-that-be & eat home grown veggies in my atheist commune, as long as I pay taxes & don't harass anyone. The ability to be different & weird without fear of being watched or recorded, and not being labeled a criminal, is an important one & one that we point to upon seeing protesters beaten (Chicago in the 60's notwithstanding) or disagreeable people disappearing in the middle of the night & being removed from the historical archives. How much of that has been true in the past & how much an enjoyable fiction is debatable, but I think the fact that people are outraged & scared (at the actual act & also the complacency at those people who say that it's for the best & we need to make sacrifices for freedom), even if it's a minority, indicates that it wasn't a fiction at one point & worth defending.

The Facebook stuff is another matter - I think that if you really want to put yourself doing a line off a bar girl in TJ, you've got no one to blame but yourself when it gets brought up in a job interview. Is it fair & necessarily indicative that you're going to be a bad/irresponsible employee because of some past indiscretion? Of course not, but shaving & wearing a suit don't make you qualified either, nor does the converse make you unqualified, but how many unclean job applicants show up in a sweatsuit? There's fabrication there, certainly, but it's fabrication on both sides, readily understood & accepted as the norm by both parties & you flout it at your peril. This applies to any online posting as well - the "mother" rule you use for class, my old computer teacher used as an indicator as to which websites were appropriate to visit in school. I think the main complaint from the employers, whether they state it or not, is that we (the (younger) potential employees) are far more tech-savvy than most of them will ever be, so our failure to remove (at least through the interview process) any potentially off-putting posts/pictures is the e-quivalent (please ignore that) of showing up in sweatpants to an interview: it's disrespectful, because you had the opportunity to present a good face, even if that face is a fiction, & consciously chose to ignore that option. To be clear, I don't think total misrepresentation is fair or ethical - if you could somehow electronically remove your name from the sex offenders registry before applying for a daycare job, that's probably not good. But the type of research people are doing, for most jobs, probably involves a background check, references & a Google search for your name. I'd like to think that employers aren't trying to disqualify you by peering into every detail of your lives, hoping for some dirt. They "went to college", too, (and I use that metaphorically, in case they didn't, to indicate a period of potentially offensive behavior you wouldn't want your mother to see) and are probably just looking to confirm that you've taken the basic steps to make yourself presentable for the interview. In summation: fair? Probably not. But it's an accepted & acknowledged unfairness (like, say, duty to known trespassers :) ) & one that even I, whose ideal work environment would be the dot com boom of jeans & flexible hours, can appreciate & accept...at least for now.


My reply is late, but candid.

I don't believe that the government should be authorized to perform warrantless wiretapping. There are procedures that allow government agents to eavesdrop based an well-reasoned court warrants and I don't see why that shouldn't be followed.

Our nation originated during the revolution that was sparked, among other things, by peoples' outrage against unjustified searches by British military. Therefore freedom from groundless searches lies at the core of our democracy and shouldn't be abandoned, especially now when our stance as a democracy is tested. We stand to loose a lot if we allow policies like that to push the border between democracy and totalitarian system a little too far. What can they take away next, the freedom of the press?

I grew up in a comunist country where all the conversations were monitored, but at the begining of each conversation you heard a voice of a pleasant gentleman reminding you that your conversation is being listened to. If our country keeps going in this direction, I'm affraid that one day I might hear that nice gentleman again when I order my Chinese food!


As one of the over 50 crowd, working with mostly 20-30 somethings, I'm worried about the prevailing attitude of my co-workers that "If I'm not doing anything wrong, why should I care if they are listening in, watching, data mining, etc." I had a friend who, in the 70s, was buying money orders anonymously at the grocery store to pay any bills that she couldn't pay with cash. I thought she was paranoid as hell at the time, but now I wonder if she's one of the few Americans without a dossier somewhere. What else would explain the Congressional Democrats "taking a dive" like they are? But I do think that those who expose themselves on the internet (literally and figuratively) should expect vendors, recruiters and government agencies to use anything disclosed for any lawful purpose. It's fair game once you put it out there.

Although I realize you're after the opinions of the youngsters in the class, I, for one, agree with Ben Franklin: "people willing to trade their freedom for temporary security deserve neither and will lose both." Ironically, I've heard a rumor that John Ashcroft had that saying on a plaque in his office. Maybe everyone should read 1984 again.


There is no question that governments and corporations are collecting more information about people than ever before.[1]  The US has become the central bank of information the world over.[2]  Meanwhile, Orwell is spinning in his grave.[3]  So why aren't we speaking up about the invasion of our (online) civil liberties?  Too many people spending too much time pruning their social portfolios, perhaps?

I think that the "what, me worry?" attitude about online privacy is the result of the inherent distance imposed by living in the virtual world.  But where people's real-world existence is affected by government or employer snooping, there is evidence of increased resistance.

However, in my opinion, there is no difference between a government agency's passive monitoring of electronic communications and the same agency using a crowbar to execute a warrantless search.  The argument that this type of surveillance is "harmless" or "preventative" is just insidious.  Anyone who can read can figure out how to obfuscate volumes of digital data using freely-available strong encryption protocols that are nothing short of unbreakable; i.e., unless the spooks have secretly invented the quantum computer in their spare time.[4]  The same reader can figure out how to use encryption to act as a "tunnel" for electronic communication and data transfer, down to the last byte.  Therefore; practically speaking, online surveillance is useless as a deterrent to tech-savvy users.  In fact, electronic surveillance is analogous to roadside checkpoints; more concerned with trawling for drunk drivers--or surfers, as the case may be--than achieving any focused law enforcement objective.

On the question of online lapses in judgment:  these are in the public domain, and running someone's name through search engines pre-hire is certainly easier than calling up the person's former employer for a reference.  There's the added bonus of not having to speak to another human being over the phone.  (How unsanitary!)  Whenever I read an account of someone's embarrassing Mardi-Gras-picture-on-the-Internet sob story, I share a private little laugh with myself and think, "What an idiot! Gee am I glad that that will never happen to me!"  But I suppose it could, and that might cause me to question whether the employer had the right, but still--the public domain is called the public domain for a reason.

People are increasingly "online," and I think eventually we will start to see activists in greater numbers speaking out on the topic of online privacy.  There are some encouraging signs that that is already happening.[5]  I think that we will also see more attempts at government regulation, but it is unlikely to be effective.  A good private sector example is music piracy.[6]  No matter what the RIAA does, and I mean _no matter what_, their business model is dead and buried.  Their only hope is to create enough fear, uncertainty, and doubt that some people will be deterred from downloading illegal music some of the time.  Most won't, and the rest will continue to subsidize Steve Jobs' mock turtlenecks. 

Sorry that this is a little long-winded, but I work as a computer programmer, and I couldn't seem to resist the opportunity to ascend this particular soapbox.


1: http://www.economist.com/world/international/displaystory.cfm?story_id=9867324
2: http://www.wired.com/politics/security/news/2007/10/domestic_taps

3: http://www.thisislondon.co.uk/news/article-23391081-details/George+Orwell%2C+Big+Brother+is+watching+your+house/article.do
4: http://en.wikipedia.org/wiki/Rsa#Security

5: http://freeculture.org/
http://www.wired.com/politics/onlinerights/news/2007/10/myanmarfacebook
http://www.eff.org/


6: http://www.news.com/8301-13578_3-9791764-38.html

 

I'm not sure if you are still interested on hearing our views on this since I know this email was sent awhile ago.  My thoughts are that there is a difference between the Government seeking out personal information and my decision to put information on Facebook or MySpace.  If I put that information out there and someone happens to see it, like a potential employer, then I have no one to blame but myself.  But information that I do not put out there for the public to see is not information that I want the Government to be able to dig up for any reasons they see necessary.  In my opinion, the people who are putting out a plethora of personal information on Facebook or MySpace are just asking for trouble.  And if employers see that information and decide to not to hire someone based on someone's profile, then more power to them.  But that is different than "digging up" information that is private.

It's disturbing to me that even when I type my name into peoplesearch.com there are addresses and phone numbers for me.  I have never posted that information on any websites that are accessible to the public.  The only websites I would put any of that information on is if I am purchasing something over the Internet, which is a discussion in itself. 

I would sign my name but I'm hoping you are honoring your word about not looking at the names on these emails, in case you have an argument for me, which I'm sure you do!:)


First of all, I was surprised by your colleague's findings.  I always thought of our generation as a suspicious lot who didn't trust the government very far, and I would have expected the majority of your colleague's students' feelings to be exactly the opposite of what they were.

Personally, I am willing to give up some degree of privacy in exchange for security, but only when there is sufficient oversight.  I believe the threat from terrorism is real enough that the government should use active, clandestine measures to combat it, but I think that an innocent American is in more danger of being arrested or persecuted in some other way by the United States government than of being a victim of terrorism.  Gathering intelligence is a murky process, and I'm willing to put up with some mistakes and even abuses of power as the price of knowing what our enemies are up to, but only if there are safeguards in place to keep the mistakes and abuses of power to a minimum.

Lately, though, the executive branch seems to be going around the safeguards that are in place, and I don't approve of that.  I believe the government should have to get a warrant, from the FISA court or some such judicial body, for any kind of domestic surveillance, and that those warrants should be issued for limited amounts of time.  I am generally opposed to people being detained indefinitely, without counsel and without trial, although I am willing to see the rules bent somewhat in situations like that of the detainees in Guantanamo, some of whom are more like soldiers than criminals.  But I think cases like Jose Padilla's, where the suspected terrorist was not captured in a place that could by any stretch of the imagination be considered a battlefield or an area of military operations, are a disgrace.  Even if Padilla was guilty, I believe the government far exceeded its authority when it detained him in a military facility without any kind of counsel for such a long time.

On the other hand, I also think that some people are overly paranoid about what the government is or might be doing.  I have all kinds of problems with the Bush administration, but I don't think it's fair to say that they're turning the country into a police state, which seems to me to be what some people think.  I don't want to say that we have nothing to worry about, but we're not on the verge of turning into an authoritarian country like China or Iran, either.

So there's my two cents.  Thanks for asking.  I also wanted to ask you a Torts question:  At some point, can you explain to me (either in person or by e-mail) how there can be a battery claim in the hypothetical with Meek and Sullen that we discussed in our review session on Thursday?  I see that the plaintiff was injured by harmful, indirect contact, but I am not clear on how the intent element is satisfied.  It has something to do with transferred intent, I gather, but I wasn't clear on how exactly it worked.  Can you help me clarify that part?  Thank you.