Joe Merante's Blog

Over the past few weeks as the scope and nature of the government's surveillance activities have been revealed, citizens have been nothing less than outraged. Or have they? A recent Pew Research survey shows a majority of Americans find the NSA's surveillance of phone records to be acceptable, while a substantial minority go the other way. As Tim Cushing explains on TechDirt , a Rasmussen poll covering the same period showed that only 26% of Americans approved. Cushing notes that the differences may reflect the phrasing of questions in each poll, or potentially unawareness or ambivalence of the severity of what's been going on. A recent Gallup poll also supports the view that most of us have had enough. As scholars and activists have reminded us for years , "if you have nothing to hide, you should have nothing to worry about" is just a slippery slope to a loss of fundamental freedoms and merely leaves us vulnerable . While reading a draft of the forthcoming ...

Federal prosecutors in D.C. typically provide notice to a person after receiving court approval to track them with geolocation data. However, after obtaining a warrant to search journalist James Rosen's Gmail account in May 2010, the government argued it did not have any obligation to provide the same notice to the customer/subscriber when it comes to email and ultimately won. The difference comes down to the different provisions under ECPA and other procedural rules under which the government obtains warrants for the different types of information. Check out the ACLU's post for an overview, or this link for my summary of the arguments contained in the recently unsealed documents. Keep in mind that the issue here is the ECPA language applied to the government's disclosure obligations, not the service provider's, although the latter is often prohibited from giving the user notice.

The law is in a state of flux regarding the government's ability to search the contents of an arrestee's cell phone without a warrant. Should a higher standard apply given the breadth of information stored or one's expectation of privacy? Is it really that different from poking through the contents of a wallet? What if it's not password-protected? The First Circuit recently parted ways with most other courts by announcing a very bright line rule in United States v. Wurie . The court decided that an officer's viewing of a suspect's call log after seeing "my house" calling constituted a search under the Fourth Amendment. (HT @slashdot ) Without needing a password, the police looked up "my house" and matched it to a house where they later found Wurie's name on the mailbox. The police then obtained a warrant to search the property and eventually found crack, marijuana, ammunition, drug paraphernalia and more. The issue is whether the warran...