Nov 062010
 November 6, 2010  Posted by  Court, Featured News, Surveillance

Over on Slight Paranoia, Chis Soghoian takes the DOJ out to the woodshed for its brief in In the Matter of the Application of the United States of America  for an Order Authorizing the Use Of a Pen Register and Trap and Trace Device and Authorizing Release of Subscriber and Other Information. In that brief, the DOJ argued  that consumers read and understand privacy policies and that therefore their historical cell data can be disclosed without a warrant thanks to my arch enemy, third party doctrine.

There are two issues here.  The first is the notion of third party doctrine, which translates as “If you allow someone else to have your data, the Fourth Amendment doesn’t apply as you no longer have a  reasonable expectation of privacy. ”   Under the third party doctrine, our government has claimed it does not need a warrant to compel cell phone carriers to provide our records to them, and it seemed like they might prevail on that until a few recent decisions gave privacy advocates hope.

The second issue, though, is the frivolous argument made by the DOJ that consumers read and understand privacy policies.   Chris helpfully points to the available academic research which refutes any argument the DOJ has made about what consumers read, know, or understand when it comes to privacy policies.  As if additional evidence were needed, Adam Shostack reminded Chris that even Supreme Court Chief Justice Roberts has admitted that he usually doesn’t read privacy policies.

Even though the DOJ failed in its most recent application,  if they should try that legally fecocktah argument again, I’d like to see opposing counsel seek sanctions against them for any claims that people read and understand privacy policies.   Shame on the DOJ for even trying that one.

I also hope that the new Libertarian members of Congress play close attention to this administration’s attempt to erode privacy protections and that they will join with privacy advocates of all political persuasions to insist that more protections are provided as we update ECPA and consider other legislation that might give the government greater unchecked access to our personal information.

Read Chris’s blog entry here.

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