The First Amendment, the Fourth Amendment, Sexual Harassment, and the TSA

There’s nothing new under the sun. This tweet deals with an incident that occurred in 2011.While the fizzled attempt at lawfare wasn’t a government act, the “search” was.

Here is Ms. Alkon’s OC Register Op Ed.

Here is the Tech Dirt post.

UPDATE—Introductory paragraph added. It will be interesting to see how future such incidents play our in the post-Weinstein era.

All Your Data Are Belong to Us

Folks seem to be surprised that personal information provided to the Maryland Obamacare website can be shared with law enforcement and other “appropriate agencies,” whatever that means. They must not have been paying attention to the way the state has been run for years.

The “Free State” is one of the least free, if not the least free, states in the Union. The state government’s disrespect for the rights of the citizens is epic. One recent example was the passage of more patently unconstitutional gun control laws which resulted in a huge surge in gun purchases. Because Maryland requires a State Police background check on top of the federal check, the flood of applications swamped the State Police resources. The 7-day waiting period was taking months. To try to work through the backlog, the State Police began illegally sharing the personal data of purchasers with other agencies so that their unvetted personnel could handle the checks. Oh, and the sharing was via unsecured web links in violation of the state’s own IT standards.

So why should anyone be surprised when Maryland says, “All your data are belong to us”?

A PRISMer of His Own Device

The PRISM surveillance program appears to gibe the NSA access to email, video chat, VoIP conversations, photos, and stored data from the participating companies. Unlike the call metadata collection program (l’affaire Verizon), this program deals with mining the content of online communication.

The European Union has very strict data privacy laws.

U. S. companies doing business with Europeans are required to abide by those laws.

Europe is not amused by PRISM.

We have seen the media reports and we are of course concerned for possible consequences on EU citizens’ privacy. For the moment it is too early to draw any conclusion or to comment further. We will get in contact with our U.S. counterparts to seek more details on these issues.

—Cecilia Malmström, Home Affairs Commissioner,  European Commission

There are real issues about the extent to which U.S. law enforcement agencies can access personal data of UK and other European citizens. Aspects of U.S. law under which companies can be compelled to provide information to U.S. agencies potentially conflict with European data protection law, including the UK’s own Data Protection Act. The ICO has raised this with its European counterparts, and the issue is being considered by the European Commission, who are in discussions with the U.S. Government.

—UK Information Commissioner’s Office

If you lived overseas and you used Gmail or communicated by Skype or synched your files via iCloud, how would you feel about PRISM? Suppose you were a foreign businessman who relied upon information services from a U.S. company; doesn’t PRISM make using such a service a business liability? Why should we expect foreigners to put their data on such a compromised system?

What we should expect is that some countries, as a matter of national security, will begin requiring that data not bound for the U. S. cannot be routed through the U. S. and that data cannot be stored on U. S. servers. That could be the end of American leadership of the Internet.

One of the reasons why our Internet facilities have been used by some many foreigners is the idea that the United States, among all the nations of the world, should be the place where one is protected by the rule of law—and that law includes the Fourth Amendment protection against unreasonable searches. Folks understand that governments conduct searches, but there’s an expectation that in America searches should require a warrant for the particular things sought.

PRISM is more that a black eye. It has the potential to do lasting damage to the country’s standing as a place ruled by laws rather than a nomenklatura.