Give a man a fish and he eats for a day, but allow the Feds to go on fishing expeditions and we’re all screwed.

by Eileen | 7:26 pm, January 8, 2013 | Comments Off

Two stories caught my eye today, both concerning spurious and crass bids to rifle through someone’s private life just in case there’s data that might be useful to the intruder. It seems we’re now in a world where merely existing is ‘Probable Cause.’ The difference, though, is that private citizens and federal agencies aren’t operating under the same legal regime.

The first is actual something that made the news late last year – yet another federal bid to grow the surveillance state. The other is a new ruling regarding plaintiffs’ privacy in civil matters. Both struck me for their starkly different treatments of how privacy ought to be weighed in the pursuit of justice. As they say, it is the undefined in full pursuit of the ill-defined.

In a win for privacy, a Montana judge ruled that the defendant in an insurance tort can’t “delve carte blanche” into the plaintiff’s social media records. It was a run of the mill personal injury suit. He was at fault in an auto accident. She’s suing, alleging beau coup injuries. His lawyers claim she’s faking the injuries. So far, it’s like the vast majority of civil actions, in which all parties are fairly terrible and the entire thing is a morass of counter-accusations.

In this instance, when the defense couldn’t find any evidence of malingering, they asked for unrestricted access to the plaintiff’s social media accounts. Again, this is common stuff, in both senses of the word. if you can’t find what you were hoping for, you just press for ever more grotesque intrusions into private areas until you find what you want or, more practically, heap so much shame on the other party that she sues for peace.

Whether the plaintiff is falsifying her injuries doesn’t really matter for our purposes; it’s a near certainty that she had at least one item in her various social media accounts that did not care to see enter the public domain. That has nothing to do with whether or not those private matters concerned something illegal or immoral. Simply, she, like any of us, wants to preserve her privacy in certain matters.

(As an aside, no one should read this is a precedent that we may all count ouronline isbehavior off-liits in civil court.  The plaintiff, if she is goldbricking, managed to make sure there isn’t a whiff of that publicly available,  Had there been anything – a photograph or an unprotected tweet, indicating dishonesty, the judge may well have granted the defense’s petition.  In fact, the court specifically held that private social media accounts don’t merit any protection merely because their owners considers them private.  In an earlier, similar, ruling out of New York, the court denied the motion to see social edia accounts, characterizing it as a fishing expedition, but hinted that a slightly more tailored request might be received favorably.  In other words, on close inspection, the courts are not categorically refuting the idea that your every online action may be parsed if you are party to a civil suit.)

Back on the topic of the value of privacy, The Founders were on board. What the 4th Amendment specifically bans is the ‘General Warrant’ – the power to sift through someone’s entire life with neither suspicion nor aim – just because. States that enjoy this prerogative have a powerful tool. To paraphrase Richelieu, if you can’t find grounds for hanging in a man’s private papers, you aren’t trying. General Warrants are a way to endlessly pry into a an’s life until you find something you can use against him, to cause him shame and stress, to force his behavior merely because he knows he’s being watched, and to avoid the actual work of building a case.

At least in theory, the state is limited to transgressing privacy only when there is probably cause. Warrants are limited to searching specific, enumerated places and only to find certain things. Oh, and they expire. Though the Bill of Rights binds the government and refers to criminal acts, it certainly influences civil procedure – evident in the ruling that the defense’s utter inability to build their case with the available information is not itself probable cause to violate the plaintiff’s privacy. Lack of evidence is not evidence.

Unless you work for the feds. Long ago, in the first round of post-9/11 hysterical overreactions, the Bush administration rolled out Total Information Awareness, proving that government workers can’t grasp the concept of how to name their programs and also proving that Washington DC will eagerly exploit any tragedy for the sake of accreting power. The backlash saw the government go through the motions of disassembling TIA, though the reality is that TIA’s component parts were parceled out and made into off-record projects; they weren’t truly shut down.

Last year, a lesser know agency, the National Counter Terrorism Center, a child agency of the Directorate of National Intelligence, announced what is really just the return of TIA. NCTC was born in 2004 specifically to collect data and look for patterns and, at least in theory, is limited to pulling information from government data sets. TIA, by contrast, would have used all possible data sets, including those in private hands. Although, as the state requires more and more private sector actors to provide copies of their data and as there are fewer and fewer things any of us can do without creating a government record, the sum total of information in government databases is staggering.

NCTC had been operating under guidelines dating to 2008.  In a closed door meeting in March of 2012, those were overhauled, almost entirely in favor of indulging spies with little more than a proforma display of concern for civil liberties.

The NCTC plan openly violates both the 4th Amendment, which requires probable cause and a limited scope, and the 1974 Privacy Act, which requires that government agencies may only share personal information in ways that align with the purpose for which the data was originally collected. For instance, medical records created when you seek care at a VA hospital may be shared among government agencies in order to provide further medical care, but not to allow the state to keep tabs on you. There is an utterly unsavory loophole to this; agencies simply post their intention to skirt the Privacy Act in the Federal Register, which they know is almost never scrutinized, let alone challenged. Voila, they may know say they did publish their intention to ignore the law. Legal, well, technically speaking, I guess. But certainly making a mockery of the intent of the Privacy Act.

As for the 4th…well, NCTC has arrogated to itself the right to scrutinize any government held data about any American for any reason. If they don’t find anything damning, they’ll still keep your dossier for five years. If anything does indicate you’r a terrorist, or might become one, or might sympathize with terrorists, then they keep a file on you indefinitely. This plan actually went so far that a DHS official objected to the privacy violation. Seriously, when has DHS ever felt the need to stand up for citizens’ privacy? Although, knowing DHS, they might just be throwing a temper tantrum because the DNI gets to run this program instead of DHS. Anyway…

Anyway, what? What is that tort lawyers are being held to a higher standard than the federal government. That ought to bother anyone. In the grand scheme of things, the outcome of a personal injury suit and of a federal terrorism investigation are not equal. Which is precisely why the latter should be run under the highest possible caution. If letting a room full of slimy litigators peruse your private life is too much to allow without compelling evidence, then how high should the standard be to let the state see more – much more – of your private life?

Lamentably, the line of reasoning is running in just the opposite way. Standard operating procedure in the endless War on Terror is to justify anything without little review or limitation because it’s just so damn vital to get those pesky terrorists. Whether the threat is being overstated, how high the tradeoffs are, and how the state misuses those powers are concerns left, unexamined, by the wayside.

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