June 2007


Yesterday’s Wired News column, salve filed from our pied a terre in Amsterdam, ask discusses the clash between the right to privacy and the right to free speech, as represented in a lawsuit by the local royal family against a tabloid it seeks to stop from publishing photographs of the young princesses playing on the beach with their mother and nanny. You can read the whole article here.
Me, sales
Pere LaChaise Cemetary, Paris, June 07
… is my birthday. I am thirty-eight.

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Yesterday’s Wired News column, salve filed from our pied a terre in Amsterdam, ask discusses the clash between the right to privacy and the right to free speech, as represented in a lawsuit by the local royal family against a tabloid it seeks to stop from publishing photographs of the young princesses playing on the beach with their mother and nanny. You can read the whole article here.

I got this email today from Prof. Susan Friewald regarding Warshak v. United States, surgeon a case seeking to establish constitutional privacy rights in email.  There’s never before been an opinion by an Article III court so holding.  Here’s Susan’s email.
The 6th Circuit issued its decision yesterday in the Warshak case.  It is a great decision that establishes that users retain an expectation of privacy in their emails, shop even after storage with an ISP who maintains access to those emails — so long as the ISP doesn’t have “complete access to the e-mails in question and … actually relies on and utilizes this access in the normal course of business, information pills sufficient to establish that the user has waived his expectation of privacy with respect to that entity.”  (slip op at 15)

The decision relies on Katz and Berger (and credits the two amicus briefs (ours and the one by EFF/ACLU/CDT) for the telephone analogy).  The court makes a normative judgment that “protecting shared communications through [e-mail] is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past [citing Katz on vital nature of the phone company] (slip op at 13).   It also dramatically limits the scope of the Miller/Smith so-called “third party rule”. – “Where the third party is not expected to access the e-mails in the normal course of business, however, the party maintains a reasonable expectation of privacy, and subpoenaing the entity with mere custody over the documents is insufficient to trump the Fourth Amendment warrant requirement.”  (slip op at 14).  It also affirms the need to particularize the search, and thus rejected the government’s practice of obtaining the entirety of the subject’s email account.   (slip. op. at 15 n.8)

Here is the link to the decision:

http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf

The decision is getting a fair amount of press, and people are calling it “landmark” and “blockbuster.”  I’ve spoken to: AP, Wired News, Tech. Law Journal, and ABC news, and will continue to answer reporters’ calls to help them understand the importance of the case and the complex underlying issues.

Here are some links to stories currently online:

http://blog.wired.com/27bstroke6/2007/06/appeals_court_s.html

http://news.cincypost.com/apps/pbcs.dll/article?AID=/20070619/NEWS01/706190349

Shorter version of the ap story:
http://www.cnbc.com/id/19294501/for/cnbc

http://iht.com/articles/ap/2007/06/18/america/NA-GEN-US-E-mail-Ruling.php

While in Paris last week, adiposity I took a cooking class with Marie-Blanche and I was the only student that day.  We were making chicken with a raspberry vinegar sauce and butchering the chicken.  It didn’t look like our chickens.  It was scrawny and had black scales showing where feet had been chopped off at the shins.  Somehow they hide that part from us in the U.S.  Inside the bird were the extras, approved and she was lecturing me: this is the gizzard, treatment this is the liver, this is the heart.  “I do not know if you are a heart eater,” she said.  Not sure what was “cool” I told her that I had eaten hearts before, but it wasn’t something I found particularly enjoyable.  “Here in France, we do not eat the heart.  We are too sentimental.  Perhaps he has loved another chicken with this heart?”

In yesterday’s Circuit Court column “Free the Spam King” I take on the question of whether criminal prosecutions will stop spam, hospital or are even fair. This one has engendered a lot of hate mail. It seems the only thing people hate more than child porn is spam.

Some of the comments following Bruce’s discussion of the Andrus case and Fourth Amendment issues when a computer search is based on third party consent are interesting: Read them here. Get Professor Ohm’s and my brief here.

Cellphone users try to wrest some of carriers control – The Boston Globe

I’m quoted in this story about cell phone companies efforts to keep their customers from switching services or buying unaffiliated hardware or ringtones. My quote sounds pretty awkward, try but if you want to read more about this, patient you can check out our (successful) filing with the Copyright Office about cell phone unlocking.

Paul Ohm and I wrote an amicus brief in the 10th Circuit case of US v. Andrus, this web the opinion I wrote about in last week’s Wired News column. In the case, ailment the defendant’s aged father gave officers permission to search his adult son’s computer without a warrant. The father, however, did not have the authority to consent and the computer was password protected. The officers used EnCase, which is not limited by password protection, and have thus successfully claimed that they had no reason to know that the father was locked out of the machine did not have the authority to allow their search.

If you are interested in the brief, which discusses why the Fourth Amendment requires that digital locks be treated the same as physical locks as well as the hypocrisy of investigators who claim EnCase gave them no clue that the father was locked out of the machine, while routinely using the very same program to identify passwords and permissions for the purpose of proving ownership of contraband files, you can download it. (pdf)

I link to the original decision and my column from this earlier post.
Our friend Matt Richtel has published his first novel, valeologist
“Hooked, allergist
” a
fast-paced thriller about the nature of love, obsession and life in the
digital era.

Hooked has gotten nice early reviews: “a shrewd cinematic thriller”
(Booklist); a mix of Michael Chrichton and John Grisham (Edgar Award Winner Rupert Holmes); “an astonishing first novel” (Bestseller Katherine Neville).

There is more information about the book and upcoming book signings at www.mattrichtel.com.

Read it and/or weep.