Tuesday, January 31, 2012

Privacy Law After the Decision in U.S. v. Jones by the Supreme Court of the United States: Quo Vadis?

Privacy Law after U.S. v. Jones in the Supreme Court of the United States
is discussed by Berin Szoka and Charlie Kennedy
in a CNET News Politics and Law guest column

at Supremes to Congress: Bring privacy law into 21st century

Among other things, Szoka is president of TechFreedom and Charlie Kennedy is a TechFreedom senior adjunct fellow.

For those inclined to political action, they write at the close of the article concerning the U.S. Supreme Court's failure to clear up the privacy standard:
"By signing the "Not Without a Warrant" petition, you can support [the] bipartisan effort to the bring the Fourth Amendment into the digital age -- by giving law enforcement access to private information only when courts determine they have established probable cause to believe that a crime has been committed or is about to be committed. That requirement is the crown jewel of our civil rights, and so long as the Court doesn't protect it, Congress must. "
Read the whole thing as an interesting take on the status of privacy law in the USA currently.

SumOfUs Petitions Apple Firm to Get Ethical: Fat Chance

SumOfUs has petitioned Apple to correct its reliance on an overseas supply chain which employs workers under conditions that resemble virtual slavery in the modern world.

Fat chance.

Apple relies exceedingly on cheap overseas labor to produce products that gouge prices domestically on over-hyped products. Patent monopolies and cheap labor are at the source of Apple fortunes.

See Petition tells Apple: We want an 'ethical' iPhone 5

Megaupload.com: Seizure, Blockage and Threat of Deletion of Lawful Data by Federal Government is Government Intervention of the Worst Sort, Punishing Lawful Users to Get at Lawbreakers: Is THAT Constitutional? Surely Not.

Time Magazine in its online Techland

had an article yesterday by Matt Peckham | @mattpeckham on
Pay Me My Money Down: Contractors Could Wipe Megaupload User Data Thursday [Updated]

and also has an article today by Jared Newman on
Megaupload: User Data Has Two Weeks to Live

What possible right do legal authorities have to seize a website and/or block and/or erase its content entirely, either directly or indirectly?

As Peckham writes:
"The conundrum’s simple enough: You’re one of the world’s largest file sharing sites, you’ve paid for a bunch of third-party computers to host your data, but you’ve since been indicted for copyright infringement, your site’s been shutdown, and the funds you used to pay those third-party storage sites are on ice. What do you do?"
I was checking out my archives today and discovered I had obtained a megaupload.com account on February 3, 2008 under the name "lawadvisor".

I do not remember if I ever uploaded any files to that account since at that time I was looking for an online host for images posted to my blogs. Plus, I often try out new service websites just to see what services they offer and to see if the ideas incorporated in any given website are sustainable. It may be I uploaded nothing. In any case, I do not recall using megaupload after that date. Do I have any uploaded files at megaload? I do not know and I went online today to find out. No luck. The site is blocked.

Here was the account confirmation I received at that time by email:
"Hello lawadvisor, Your free Megaupload account was successfully created. Your nickname: lawadvisor Your password: ********************************

Please make sure to remember your nickname and password. Megaupload will never contact you and ask for your password. Don't give it to anyone!

To activate your account, please click on the following link: http://www.megaupload.com/account/?confirm= ********************************

Thank you for using Megaupload.

Your Megaupload Team"
Here is what you see if you go the Megaupload website today:

LawPundit has no knowledge of any kind about any alleged law violations by Megaupload.com, its principals, none of whom I know personally, or its users, and hence we do not comment here on that at all, but, for the sake of argument, even if some violations of law had occurred, by either principals or users or both, what possible legal right do courts or law authorities have to seize an online upload site in its entirety and to cut off its services to legal users and/or erase their materials -- or force their materials to be erased by e.g. freezing the funds of company principals -- just because some people are breaking the rules?

Just imagine the government seizing Google or Facebook similarly because some small percentage of people are using those sites for criminal activity -- which is surely the case, given the millions of people who use those sites for everything from A to Z.

I am a political centrist and often engage in friendly debate with my many conservative, and yes, even far right-wing Republican friends, whose main gripe about the federal government is over-reaching government intervention. Well, few kinds of anti-democratic government intervention rival what has been done in this case, where lawful users have not even been given the opportunity to download and save their data and are faced with deletion.

What the government is doing here can not possibly be legal according to the Constitution of the United States. No way.

Obviously, the federal government can indict principals for alleged illegal activity and/or indict alleged unlawful users and/or petition a court to delete or remove from online access any materials that are alleged to be unlawful, but until the entire legal process has run, you can not do what the federal government is doing in this case. There is no pervasive state interest here that has to be protected and no danger of great imminent harm. It is simple government over-reaching. You can seize allegedly violating materials, but NOT EVERYTHING. Countless Supreme Court decisions say that to law enforcement officials and agencies. Search warrants can not possibly give blanket permission to seize and block lawful materials and indirectly to cause their destruction.

It is not only a denial of due process right at the start of legal proceedings, but it is a chilling denial of free speech, since lawful materials are being seized, their access is being blocked, even to the OWNERS of that material, and their deletion is being forced indirectly by government activities.

In addition to due process and free speech violations by the federal government here, there are also some nice legal arguments possible about property violations by the federal government. The common law of TRESPASS to CHATTELS protects PROPERTY, including data. You just can't go in and take lawful data, block its use and promote its destruction.

Living in Europe, we have no real legal recourse to actions of federal government authorities in the USA, but we can report that the Electronic Frontier Foundation is taking initial action to protect lawful users.

Dave Neal reports at The Inquirer in

EFF will help Megaupload users reclaim data: Rights group partners with hosting firm

that lawful USA users of Megaload should contact the EFF with account information so that the EFF can try to help them retrieve their data, i.e. their rightful property, which is currently blocked, in violation of the laws.

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