Many people will remember the Central Park jogger case in the 1980’s, in which gangs of teenagers went on a rampage during which a white female jogger was beaten, raped and basically left for dead in the park. Five young black kids confessed to beating the woman, though only one admitted raping her. Based on these confessions (the woman had no recollection of the attack when she awoke from the coma), the kids were prosecuted and convicted.

Now, about 13 years later, a convicted rapist and murderer serving a life sentence told authorities that he alone attacked and raped the woman. DNA evidence proves him right.

Even with due process of law, videotaped confessions, and trials, the judicial system fails to ascertain the truth in a remarkable number of cases. Citizens should remember this fact when the government asks us to give them to power to adjudicate the fate of individuals without these safeguards. For if we make mistakes under the best of circumstances, and I do believe the American judicial system to be one of the best of circumstances, imagine the horrific mistakes we’d make if one man decides whether someone will be detained for the rest of his life without attorneys or trials.
Yet another in a long line (111) of people convicted, but later freed by DNA evidence.
I was dismayed listening to Professor Douglas Kmiec on Fresh Air with Terry Gross yesterday. Professor Kmiec supports the Bush Aministration�s new security measures, including the USA PATRIOT ACT (USAPA) and the proposed Total Information Awareness program. Professor Kmiec made at least two erroneous assertions about the new security measures and the privacy safeguards (or lack thereof) in place.

In response to a question about defining the limits of privacy, Kmiec said that investigators must show probable cause to obtain both criminal search warrants and national security warrants under the FISA (Foreign Intelligence Surveillance Act) before reviewing bank, telephone and other records. This is true, but only in the most misleading way. While a criminal investigator must show probable cause to believe that the suspect is involved in wrongdoing, the FISA investigator need only show probable cause that the person is an agent of a foreign government. See 50 U.S.C. 1805 and 1823. An alleged agent of a foreign government who has done nothing wrong is still subject to surveillance. This is why some civil libertarians believe there should be a wall between criminal investigations and foreign intelligence investigations, so that investigators don�t do an end run around the more rigorous criminal warrant requirement by seeking the easier-to-obtain FISA warrant.

While defending Total Information Awareness � the Bush plan to collect and store data from multiple sources, including credit card transactions, employment records, medical records, ISP records, etc. in a single searchable database � Professor Kmiec said that access to private information even under TIA would be governed by probable cause because its written into the Constitution and can�t be legislated away. Again, this partially true yet grossly false. Govenrment access to the information is governed by the Fourth Amendment, but that doesn�t mean investigators would need probable cause before searching the database for your grocery shopping habits or prescription medications. If the citizen doesn�t have a reasonable expectation of privacy in the information, then the government doesn�t need a warrant to get it. And people don�t have a REOP in information they�ve given to a third party, even if it was given with the understanding that the communication is confidential. See, e.g. SEC v. O�Brien, 467 U.S. 735 (1984). The government could legally search that database for your most private information without any checks and balances whatsoever.

I also grossly disagree with his assertion that everyone detained post-September 11th has had access to counsel. Neither Jose Padilla nor Yaser Esam Hamdi, both American citizens, have been allowed access to counsel, though both are detained without criminal charges.

I am sending this letter to Fresh Air and to Professor Kmiec. I challenge the proponents of the USAPA and Total Information Awareness to come clean about these proposals and their true meaning for the privacy, safety and security of the American people.

Congratulations to defense attorneys in the ElcomSoft case, the first trial for a criminal violation of the anti-circumvention provisions of the Digital Millenium Copyright Act (DMCA, 17 U.S.C. 1201 et. seq.)! The San Jose jury came back with a verdict of not guilty, essentially finding that the Russian company that sold software that defeated Adobe eBook encryption � and allowing copying, read aloud and other functions disabled by Adobe � did not wilfully break the law. For more about the case, including my comments in the New York Times, see this story by reporter Matt Richtel.