Tag Archives: privacy

Government – Just Leave Us Alone!

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There was a time when a diary that you wrote in long hand, in India ink, kept confidential in a false drawer in your worn mahogany desk, was private, and safe from the prying eyes of anyone including our government – as a matter of law.

Not so anymore.

I advise my clients these days to destroy their mental notes.

From the vantage of a criminal defense lawyer (and “recovering” federal and state prosecutor), I’ve seen the most craven governmental intrusions into individual privacy – shocking to any Accused person who never before had to endure the unwanted embrace of a criminal prosecution.

Little has improved since the author’s privacy article published in 1972

Little has improved since the author’s privacy article published in 1972

Here in Loudoun County, if you’re arrested and denied bail, when you are jailed in Loudoun’s Adult Detention Center (ADC), don’t make the mistake of talking about your case on the jail house phone with your wife (or anyone else), because everything you say is taped – and they’ll use it against you.

We have an “expectation” of what is private, predicated upon our 4th Amendment right to be secure in our person and property, and the penumbra of other constitutional rights.  This is what must be protected.

Who would expect it was right and just to intercept a family conversation when the Accused has no other way to talk to his family?

We believe we get to control what information is circulated about ourselves – in or out of jail.

But practice and the law is more complicated than what we might fairly expect and what common sense dictates.

When I was a puppy law student, I was concerned with privacy, so much so that I wrote about it for our journal, the Columbia Human Rights Law Review.

Our technology was relatively primitive in the 70’s.   Indeed, I wrote how intrusions into a person’s privacy might not have been possible “if the information was manually handled and manually disseminated.”  Continue reading →

Womens march on Washington – the Lovettsville buses

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The Womens March on Washington

The Womens March on Washington

Many of your neighbors from Lovettsville, and not just women, felt it was necessary to March on Washington the next day after the Inauguration this past Friday.

They were doing what many other communities were doing across the Commonwealth.

One local woman said, “You know how a woman speaks at a meeting and is ignored.  Then a man repeats the very same thought he just heard her say – and then it’s treated by the men as if it was the man’s idea all along.”

“Worse than that,” she said, “is when a woman enjoys the right of privacy to control her own body – and that’s not respected.”

This latter observation relates to what was plainly a defining moment in the recent presidential election for very many women, when it was widely disclosed, what Mr. Trump thought about women.

Mr. Trump said, “You can do anything … Grab them by the pussy, you can do anything.”

“And when you’re a star, they let you do it,” Mr. Trump said.

“You know I’m automatically attracted to beautiful [women],” Trump said, “I just start kissing them.  It’s like a magnet, just kiss.  I don’t even wait.”

In other words, a woman said, “a woman’s consent is irrelevant to this guy.”

Trump confided to a like-minded male that he tried to have sex with one woman the two were about to join, knowing she was married.  He said, “I moved on her like a bitch.”

Mr. Trump favors tic tacs “just in case I start kissing…”

In the recent campaign, it is undisputed that Mr. Trump, by word and conduct, was transparently intolerant of persons by their gender, race, color, religion and place of origin.

Mr. Trump, however, reserved his special abuse for women, no matter whether the woman was a Fox anchor or an Oscar-winning actor.

Contradicting Mr. Trump invited slander, lies and relentless trash talk.

Women the world over saw in Mr. Trump’s November election the danger of sexual discrimination going forward in his Administration, impermissible incursions into the sanctity of the person, of the constitutional right to be let alone, of access to medical records, of equal pay for equal work, of their dignity – meaning shame for being a woman. Continue reading →

Homeland insecurity

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concordmilitiaWe have changed our definition of what’s freedom.

I stand in court rooms in defense of the Accused and invoke the presumption we are all innocent including those charged.

Our government treats us, however, as if we are all presumed guilty, that we must prove otherwise, and we are all treated as suspect for the commission of some unstated possible terrorist act – without any evidence whatsoever.

We have become accustomed to being searched and radiated at airports and public buildings, though we comply reluctantly.

For years now the government, “our” government, has also been collecting every bit of information it can about who we are, what we do, what we say, where we go, what we write, our financial holdings, and with whom we associate.

Our personal information is being inhaled into the government’s mammoth data banks at the cost of our expectation and right to be let alone.

Yet, we brag our freedom is the envy of the world.

The fear of those who would govern this nation is compromising the freedom of the governed.

When 9-11 occurred, I was ashamed of the members of Congress.  Little has changed since. Continue reading →

Unprotected text

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iosEncryptionIf you have a cell phone with robust encryption, it may deny entry to unwanted intruders who wish to rifle through your most personal information.

Our government prefers to be opaque when it comes to telling us what it’s doing, and yet is astonished when we cherish personal privacy, and defend it with various tools including encryption.

According to former CIA analyst, Edward Snowden, a fugitive somewhere in Russia these days, our government didn’t ask permission or authority when it invaded our Google and Yahoo accounts, nor when the NSA helped conduct global surveillance programs in conjunction with pliable Telcom companies and foreign governments.

When we were a collection of colonies, English authorities sought to enforce the tax laws using “writs of assistance” to enter any house they chose, to look for “contraband,” and to demand that you help them to invade your privacy.

When we won our revolution, we wrote a bill of rights to guard against these unwarranted invasions.

But now our privacy can be compromised without physically entering a home, given modern technological “progress.”

Aldous Huxley wrote, “Technological progress has merely provided us with more efficient means for going backwards.”

In a fairly recent Supreme Court opinion, Riley v. California, Chief Justice John G. Roberts Jr. wrote that ninety percent of Americans have cell phones and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.” Continue reading →

The new police rat app

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ratjfAbout a week ago, our Lovettsville Mayor passed along to the community a bulletin from the Loudoun County Sheriff, Michael Chapman.

It was billed as the “launch” of “the first-ever law enforcement app for Loudoun County.”

It shouldn’t have ever been launched.

By way of background, this app is “available on the iTunes App Store (IOS) and Google Play (Android)” and “will allow “users” who download this app, according to the Sheriff’s release, “to be able to submit crime tips anonymously, including the ability to send photos and videos from their smartphone.”

You may wonder what the Sheriff means by a “tip.”

Well, the Sheriff confirmed it’s not a “crime in progress.”

Without any standards whatsoever, citizens are being invited to say what they think is “suspicious,” based doubtlessly on incomplete information, little or no investigative experience, personal bias, rumors, overheard conversations, maybe even an unconsented taped conversation, and, finally, by forwarding this “packet” of “tip” text, with accompanying stills, audio and video documents – all done anonymously.

This “first ever” initiative is like the “Sound of Music” come to Loudoun – inviting us to mimic the misbehavior of that Nazi twit who turns in his girlfriend’s Von Trapp family.

We have tried before having something like a Stasi volunteer network.

After 9-11, the federal government invited us one and all to rat out “suspicious” neighbors or “strangers.”

But 95% of those “tips” turned out to be nothing at all.

Worse, it is daunting to imagine our Sheriff’s Department having the wherewithal to consider whether these anonymous tipsters have an axe to grind, a motive to hurt or slander another, or whether they are just plain reckless.

Other communities have recoiled at such law enforcement techniques. In Boston, the community started wearing t-shirts that read, “Stop Snitchin’.’” Continue reading →

A nation of suspects – that’s no worthy memorial

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towersburningWhen we enter any public building, however responsible, respectable or harmless we are, we are likely to be patted down – like a criminal.

We are presumed to be suspect since 9-11, an unworthy memorial for those who died that day.

I was a congressional chief of staff, working in the Cannon House Office Building, when 9-11 occurred.

Police, Fire and rescue workers, and many citizens ran to help others, risking their lungs and their lives, some dying to save persons that they did not know.

Most members of Congress, in contrast, went to ground, and were not found until the all-clear signal.

Members of Congress told the nation it was safe to fly, while they stayed put in Washington.

Some Members of Congress thought to deny access to government buildings, defying Thomas Jefferson’s admonition that a government closed to the public was no democracy.

Some Members talked about dropping nuclear weapons on foreign nation-states – although they weren’t certain which ones.

Congress spoke with gusto about our freedoms as they rushed to crush them in the ironically named Patriot Act. The Benedict Arnold Bill would have been a more fitting name for betraying every person’s right to be free of suspicion. The wrongly named Patriot Act allowed warrantless searches of our information and lately we’ve learned how extensive this intrusion by NSA into our privacy was. Congress nevertheless has been debating in recent days whether to extend these invasive practices.
On the evening that Congress took up the Patriot Act, unable to stomach the debate, I went for a run before the vote, making my way from the Capitol to the Lincoln Memorial. It was dark. I found a candle lit vigil by the reflecting pool, and stopped to hear ordinary citizens, arranged in a circle of life, discussing, in respectful muted voices, the terror but also the bravery of American men and women on that fateful day.
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Their love of the nation, the honor they bestowed on others, the hope they represented for the nation stood in stark contrast to their Congress at work, not that far away, voting that very evening to suspect every one of these good people and every other American.

We had a chance to come together after the terrible events on 9-11, to harness the can-do feeling and courage of our citizens, also to join hands across the oceans with nations around the world.

We forged instead a separation that divides our house at home and abroad.

Even now, we have to debate whether to take the Patriot Act off life support.

Even now, we war in Iraq.

This nation must set a new course in memory of who we were before 9-11.

We are all in this together, working toward that more perfect union, but so very imperfectly, and we can’t presume there’s anything exceptional about this nation if it won’t treat our neighbors better at home and abroad.

I attended a High School reunion at a Jesuit School in the Bronx, and, having nothing to do while waiting, studied a mural, of persons ministering to the young, the sick, and the old.

These are the Christian values that our pols speak about but disregard in their workaday quotidian practices.

Whether we honestly hold these values, by religious belief or political or ethical philosophy, it is the path, by which we may put an end to our inward-turning, self-centered dystopic culture of fear making us all suspects instead of citizens in the land we once proudly described as the land of the free and a home for the brave.

For law enforcement – privacy is inconvenient

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ciaDirectorWhatever anyone thinks of former CIA network administrator, Edward Snowden, whether as a whistleblowing champ hero or a hacking chump coward, he raised the consciousness of citizens to the fact that they had very little privacy, that we all remain under constant warrantless NSA surveillance for no good reason while their secret big data haul makes the fictional Orwellian Big Brother a harsh reality.

Many are willing to surrender freedom and privacy for seeming security.

Many say they don’t care if the government is hoovering up every bit of information about them – what do they have to hide?

For all the self-asserting bluster about their individual dignity and independence, many have chosen to escape from the hard-earned freedom defined by our bill of rights to embrace humiliating subjection.

A recent declassified report, authored in 2009, but released just this past Saturday, said the IGs from five Intelligence and Law Enforcement agencies couldn’t identify any specific ways that the massive surveillance, under the code name, “Stellar Wind,” exposed by Mr. Snowden, thwarted a single possible terrorist attack.

In a law school note, many years ago, I wrote for a law school journal, that the notion of privacy “implies solitude or quiet or ‘social distance,’ no doubt as a reaction to our densely populated, commercial society” and the “concept of control is fundamental to an American definition of privacy.”

Professor Allan Westin described privacy as the “claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”

In the hallowed chamber of the U.S. Supreme Court, during oral argument, the government made crystal clear its disrespect for everyone’s “right to be let alone” from the government’s intrusion. Continue reading →

The privacy snatchers

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privacyImageYou may not have known that you had a Big Brother in Virginia watching you but Virginia State Police have had automatic license plate readers (ALPRs) that not only take pictures of license plates at the rate of 900 hundred a minute, no matter if it’s day or night, rainy or not, with devices that operate just fine when the police vehicle is traveling at 140 miles an hour while passing or closing.

These devices identify your vehicle, where it is, and when it’s there.  You may think that’s terrific.  But not when you consider that these devices are surveilling citizens suspected of nothing, when there’s no active criminal case, no suspect, no hint of a stolen car, no drug buy in progress.

Still, the police hoover up megabytes of data, and store it until they feel compelled to scrutinize what we may have done, with whom and when.

The First Amendment guarantees the right to associate with whomever you wish without any interference from the state that might “chill” this association.

Based on earlier FOIA requests, we know the State Police has employed these automatic license plate readers (ALPRs) to know who attended political rallies for President Obama and for Vice-presidential candidate Sarah Palin.  That’s no proper police function.  Rather, it’s a “police state” function. Continue reading →

Can You Hear Me Now?

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You may repeat into your cell phone, as you walk around, trying to find a signal, “Can you hear me now?,” but you mean, can a known friend or family member hear you?

Not some government agency.

We thought we’d come a long way from rural party phone lines when uninvited listeners might overhear what was said in violation of a caller’s right of privacy.

But we now have the “all-consuming N.S.A,” as one paper characterized the agency, for which “no morsel [of private information][is] too miniscule,” meaning that our government is tracking the calls of every American and much more information under the elastic aegis of the ironically named Patriot Act and the FISA Amendments Act.  Absent any restraint by any other governmental branch or agency, the NSA’s rules of engagement are, “Why not?”

Continue reading →

Truth Decay

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John Flannery and Former Nixon White House Counsel, John Dean

On 9-11, I was rounding the Lincoln Memorial and had a clear view across the Potomac to the Virginia side where I saw a mushroom cloud that rose to the sky composed of dirt and debris.

I worked in the Cannon House Office Building at the time and called my staff to discover that the twin towers in New York had been attacked by terrorists, as had the Pentagon in Virginia – and the plane that crashed into the Pentagon was that great dirt cloud I watched rise up high into the air.

By October, a bi-partisan U.S. Congress approved the so-called USA Patriot Act.  It was a bitter event because we missed an opportunity to do better.  The House Judiciary Committee had cobbled together a unanimous bi-partisan compromise under Committee Chairman Jim Sensenbrenner but at the 11th hour, just before the floor vote, then Republican House Speaker Dennis Hastert replaced Sensenbrenner’s Judiciary Committee compromise bill on the House floor with a wide-ranging wrong-headed substitute.

You really should read the bill as most members of Congress never did; there were only two copies of the bill available at the time of the vote. Continue reading →