Monday, August 28, 2006

increasing government surveillance

United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006)
REINHARDT, Circuit Judge, dissenting:
In this age of increasing government surveillance, lawful and unlawful, and of the retention of all our deeds and thoughts on computers long after we may believe they have been removed, it is important that courts not grow lax in their duty to protect our right to privacy and that they remain vigilant against efforts to weaken our Fourth Amendment protections. It is easy for courts to lose sight of these objectives when the government seeks to obtain evidence of child pornography or narcotics violations. Here, I believe, our court is making an unfortunate error.
KLEINFELD, Circuit Judge, dissenting The importance of this case is considerable because, for most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have parties, all the guests — including perfect strangers — are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation. There are just too many secrets on people’s computers, most legal, some embarrassing, and some potentially tragic in their implications, for loose liberality in allowing search warrants. Emails and history links may show that someone is ordering medication for a disease being kept secret even from family members. Or they may show that someone’s child is being counseled by parents for a serious problem that is none of anyone else’s business. Or a married mother of three maybe carrying on a steamy email correspondence with an old high school boyfriend. Or an otherwise respectable, middleaged gentleman may be looking at dirty pictures. Just as a conscientious public official may be hounded out of office because a party guest found a homosexual magazine when she went to the bathroom at his house, people’s lives may be ruined because of legal but embarrassing materials found on their computers. And, in all but the largest metropolitan areas, it really does not matter whether any formal charges ensue —if the police or other visitors find the material, it will be all over town and hinted at in the newspaper within a few days. Nor are secrets the only problem. Warrants ordinarily direct seizure, not just search, and computers are often shared by family members. Seizure of a shared family computer may, though unrelated to the law enforcement purpose, effectively confiscate a professor’s book, a student’s almost completed Ph.D. thesis, or a business’s accounts payable and receivable. People cannot get their legitimate work done if their computeris at the police station because of someone else’s suspected child pornography downloads. Sex with children is so disgusting to most of us that we may be too liberal in allowing searches when the government investigates child pornography cases. The privacy of people’s computers is too important to let it be eroded by sexual disgust. The majority concludes that the affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site. This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant. “[W]ith each succeeding inference, the last reached is less and less likelyto be true.” The privacy of a person with a sexual perversion that might make him a danger to our children seems by itself an unlikely candidate for concern. But the overwhelming importance of the privacy of people’s computers makes it essential to assure that — even in this ugly corner of human perversion — probable cause seriously interpreted remain a prerequisite for search warrants. Therefore, I respectfully dissent.

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