05 February, 2007

Internet Privacy - correction and expansion

Contrary but good comment from Ryan on my last privacy post.

It was wrong of me to state that he defended a pervert. He was legitimately trying to identify what he and other coworkers considered a small triumph for computer privacy in the court system.

My opinion is that this is a terrible case to hold up as a victory for privacy in the court system.

I certainly should have stated it that way instead of the way I did. I am well aware that Ryan continually defends both privacy and ownership rights. That is why I love reading his blog and do on a fairly regular basis.

That is also why I got irritated by the spin I thought I saw in the post. My interpretation of that spin is that it was a good thing in principle that data that was voluntarily turned over to the government by the legitimate owner of that data was disallowed as evidence.

Obviously I disagree with that spin.

So now I am done with my correction. Time for the expansion.

In his comment Ryan pointed out that his interest in the case was based on principles not on "particulars".

Immediately prior to that argument he implied that I was too ideologically driven to wrap my mind around the complexities of the case.

"you are so wrapped up in libertarian ideology you can't help but see the federal government impinging on property rights."

Rock... Glass House...

I believe that to a large extent Ryan and Jennifer's positive opinion of the final outcome of this case was based on "principle" and not "particulars" but when cheering an ideological victory for their side of the argument they should not forget that the "particulars" in this case would have resulted in the dismissal of charges for an individual that DID commit the crime and is a possible threat to his community.

As to my mental deficiencies.

Well, I can wrap my mind around the details and complexities of the case.

Instead of using ascribed ideology to dismiss Ryans arguments lets use the actual case.

Original Opinion Here are the details
Final Opinion Here

I am uncertain if Ryan actually read the opinion, I assume he did, but this is the argument he used to defend the "principles" in the comments of his blog post.

Under the new ruling, a company could look through, copy or provide data from the computer to the government so long as someone with proper authority at the company agrees to it. So if the gov asks the IT manager and she says yes, then the search is legal. If the government asks the night watchman to do it, and she says yes, the search would be illegal.

This is akin to searching a teenager's room in a house. If a parent gives consent to law enforcement, the search is fine. If they get consent from the five year old that opened the door, that wouldn't be legal.

Unfortunately this interpretation doesn't jibe with the facts of the arguments in the case.

From the actual case:

Shortly thereafter, Michael Freeman, Frontline’s corporate
counsel, contacted Agent Kennedy and informed him that
Frontline would cooperate fully in the investigation. Freeman
indicated that the company would voluntarily turn over
Ziegler’s computer to the FBI and thus explicitly suggested
that a search warrant would be unnecessary.

The Corporate counsel expressly stated that a warrant was not necessary. The IT Administrator and the CFO both had already given permission.

This wasn't a 5 year old giving access to her sisters room. It also wasn't a night watchman. This was the IT management, CFO and Counsel.

The key initial findings of the case do revolve around the interpretation of an expectation of privacy.

Ziegler argues that “[t]he district court erred in its finding
that Ziegler did not have a legitimate expectation of privacy
in his office and computer.” He likens the workplace computer
to the desk drawer or file cabinet given Fourth Amendment
protection in cases such as O’Connor v. Ortega, 480
U.S. 709 (1987).

It all comes down to what a reasonable and legitimate expectation of privacy is.

These findings ultimately were never overturned.

My argument (which doesn't matter one wit in the ninth circuit) is that users should have no expectation of privacy on their work machine unless they work for a company that doesn't own or claim ownership of their machines or the data on the machines.

More importantly organizations should not be under a real or perceived obligation to request a warrant before cooperating with the government with information and data they own.

Ironically the final decisions on the case revolve around whether or not an office entry is acceptable not whether or not computer data is private so perhaps the spin was off in the first place.

Instead of holding a case like this up as a victory and paragon of emerging information privacy rights perhaps something better can be found.

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