In a concurring opinion in United States v. McClain, No. 04-5887 (6th Cir., Dec. 2, 2005), Chief Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit seeks to explain what “probable cause” entails. Under the Fourth Amendment, law enforcement officials often must have probable cause to believe that the place to be searched contains evidence of a crime in order to conduct a search. In describing the standard, however, Judge Boggs defines it as a ridiculously low threshold:
A simple equation of modern life. This story has an interesting set of ingredients: sex photos, privacy, email, websites, and free speech. From the Chronicle of Higher Education:
Most of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:
A New York Times editorial observes:
At a North Carolina strangulation-murder trial this month, prosecutors announced an unusual piece of evidence: Google searches allegedly done by the defendant that included the words “neck” and “snap.” The data were taken from the defendant’s computer, prosecutors say. But it might have come directly from Google, which – unbeknownst to many users – keeps records of every search on its site, in ways that can be traced back to individuals.
Lior Strahilevitz (law, Chicago) has a wonderful post over at the Chicago Law Faculty Blog about a very problematic Seventh Circuit opinion — and blunder. The case, Doe v. Smith, involves a teenage girl whose boyfriend secretly videotaped them having sex and then emailed the video to his friends. The issue is whether the plaintiff could proceed on federal Wiretap Act claims. The court said yes. But then the court stated:
Howard Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today
:
In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .
There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.
In a very interesting case, U.S. District Court Judge Rosemary Collyer recently held a Washington Post reporter in contempt of court for not revealing the source of a leak in the investigation of Wen Ho Lee. [Click here for the court’s opinion.] The case involves a civil suit by Lee against a number of federal agencies for violating the Privacy Act of 1974, 5 U.S.C. § 552a. Lee was a scientist employed by the Department of Energy and was being investigated by the FBI for espionage for China. Ultimately, the espionage case collapsed and Lee pled guilty to one count of mishandling computer files.
Howard Bashman at How Appealing muses whether anonymous blogging is really possible:
These days, however, most users of the internet understand that every bit of information communicated electronically leaves electronic fingerprints that can be used to trace the source of the information, even if the source hoped to remain anonymous. To be sure, there are ways to anonymize emails and other forms of communication, but they tend to be complicated to use and difficult to figure out. . . .
I doubt whether anonymous blogging is possible. It surely isn’t possible if the blogger conducts email correspondence with others and fails to mask his or her internet protocol address. Plus, even the act of logging on to a blogging service provider, such as TypePad or blogger, leaves electronic fingerprints, and I’d have to assume that “UTR” had a TypePad subscription, enabling someone to subpoena the blog owner’s identity and/or payment information. So, to you anonymous bloggers out there, have fun, but don’t fool yourselves into thinking that simply by not providing your identity you are doing an effective job of remaining hidden.
Steve Vladeck (law, Miami) visiting at PrawfsBlawg tells an interesting anecdote about the Internet Archive, otherwise known as the “Wayback Machine.” Steve writes about a student who discovered his childhood pictures:
I just posted about the Wayback Machine and that got me wondering whether anything really disappears from the Internet when it is deleted. Certainly, a ton gets archived in the Wayback Machine as well as in Google cache and in RSS readers. Of course, if something appears on the Internet, somebody could see it and copy it before it gets taken down.