Justice Scalia recently spoke about privacy at a conference hosted by the Institute of American and Talmudic Law. The event sounded quite interesting, and I wish I could have been there. An AP report provides a brief overview of Scalia’s views on privacy:
Earlier this week, the U.S. Supreme Court decided Herring v. United States, a case examining whether the exclusionary rule should apply to a search that was based on an error in a database.
In particular, due to a negligent error in a computer database indicating that there was an outstanding felony arrest warrant for Bennie Herring, he was arrested and a search incident to arrest revealed drugs and a gun (which he was not permitted to possess since he had a previous felony conviction).
An interesting case from the Wisconsin Court of Appeals embodies what I believe is a thoughtful and nuanced understanding of privacy. The case is Wisconsin v. Jahnke, 2007AP2130-CR (Dec. 30, 2008).
The case is a criminal prosecution of a man who secretly recorded his girlfriend in the nude, in violation of Wisconsin Statute § 942.09(2)(am). I’ve posted the text of the full statute below. The statute provides that it is a felony to record another person in the nude without that person’s consent “in a circumstance in which [the person] has a reasonable expectation of privacy.” The defendant contended that his girlfriend didn’t have a reasonable expectation of privacy because (as the court characterizes his argument), “she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.” In other words, he argued that since she expected to be seen by him, she lost her expectation of privacy in her nude body.
I’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.
Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.
Over at Wired’s Threat Level blog, Kim Zetter’s excellent coverage of the Lori Drew trial continues. In this post, she discusses the testimony of Lori Drew’s daughter Sarah:
According to Kim Zetter’s account of the Lori Drew trial, Judge Wu has postponed ruling on any of the legal issues until after the jury’s verdict:
Over at Wired’s Threat Level Blog, Kim Zetter is providing great coverage of the Lori Drew case.
Here’s her post about Tina Meier’s testimony (the mother of Megan Meier).
The Lori Drew trial is set to begin this week, and it is a travesty that this trial is even taking place. The basic facts of this case are that Drew was the mother of a teenage daughter and she created a fake MySpace profile for a fictional teen boy to befriend a classmate of her daughter’s. It remains unclear what the motivation was for creating this fake profile, but from what I’ve read, it was to learn about rumors about her daughter. This classmate, Megan Meier, befriended the fake MySpace persona. At some point, the fake persona broke up with Meier, saying he no longer wanted to be friends, and Meier committed suicide.
