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Author Topic: Privacy, Big Brother (State and Corporate) and the 4th & 9th Amendments  (Read 64824 times)
G M
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« Reply #700 on: March 19, 2013, 07:20:51 PM »

http://www.cato.org/publications/commentary/drones-are-price-perpetual-warfare-state

From the article:

Texas A&M University Professor Christopher Layne writes in “Kant or Cant: The Myth of Democratic Peace” that the greater the external threat a state faces or believes that it does, the more autocratic its foreign policy making process will be and the more centralized its political structures will become. Layne argues that external threats necessitate a powerful governmental apparatus to mobilize resources for national security purposes; in turn, the more likely these states are to adopt statist forms of democracy or even authoritarian structures. As we have witnessed with past conflicts, and especially since 9/11, war concentrates power in the executive branch and thus expands the limits placed on our constitutional republic.

What's the price for not fighting back?
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Crafty_Dog
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« Reply #701 on: March 20, 2013, 12:44:08 AM »

Losing without a fight.

And now a question for you:  What is the price of letting statists claim WAR! (on drugs, on poverty, on savers, on whatever) as a basis for increasing the State's power over a free people?
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G M
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« Reply #702 on: March 20, 2013, 06:40:48 PM »

Losing without a fight.

And now a question for you:  What is the price of letting statists claim WAR! (on drugs, on poverty, on savers, on whatever) as a basis for increasing the State's power over a free people?

Any policy requires a critical analysis of cost/benefits.
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Crafty_Dog
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« Reply #703 on: March 21, 2013, 10:14:34 AM »

Agreed.  smiley
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Crafty_Dog
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« Reply #704 on: March 23, 2013, 11:52:49 AM »

GM et al:

Here's an article about micro-drones.

http://www.geek.com/articles/geek-cetera/micro-drones-are-real-heres-the-horror-inducing-video-to-prove-it-20130220/

Any concerns about these sorts of capabilities in the domestic context?

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Crafty_Dog
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« Reply #705 on: April 01, 2013, 03:46:41 PM »



http://www.nbcnews.com/technology/technolog/us-plan-calls-more-scanning-private-web-traffic-email-1C9001922
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G M
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« Reply #706 on: April 01, 2013, 04:15:16 PM »

GM et al:

Here's an article about micro-drones.

http://www.geek.com/articles/geek-cetera/micro-drones-are-real-heres-the-horror-inducing-video-to-prove-it-20130220/

Any concerns about these sorts of capabilities in the domestic context?



I think there are applicable legal standards already in place that would cover this technology, as we've already discussed.
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bigdog
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« Reply #707 on: April 01, 2013, 05:08:11 PM »

What you miss, GM, is that with new technology comes new questions. As with wire tapping, aircraft surveillance, heat detection devices and the like, there is not a standing precedent exactly for this technology. This means that there exists a questions about whether the legal standards are, indeed, "applicable."
« Last Edit: April 01, 2013, 05:25:28 PM by bigdog » Logged
Crafty_Dog
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« Reply #708 on: April 01, 2013, 05:25:04 PM »

And what so those legal standards say GM?
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bigdog
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« Reply #709 on: April 01, 2013, 05:26:55 PM »

What you miss, GM, is that with new technology comes new questions. As with wire tapping, aircraft surveillance, heat detection devices and the like, there is not a standing precedent exactly for this technology. This means that there exists a questions about whether the legal standards are, indeed, "applicable."

Crafty, do you know why hot links are being made without posters' intent? "Surveillance" doesn't lead to anything I posted.
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G M
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« Reply #710 on: April 01, 2013, 07:06:17 PM »

What you miss, GM, is that with new technology comes new questions. As with wire tapping, aircraft surveillance, heat detection devices and the like, there is not a standing precedent exactly for this technology. This means that there exists a questions about whether the legal standards are, indeed, "applicable."

If law enforcement uses a killer micro-drone to zip up a hostage taker's nose and detonates an explosive charge, it's just like using a SWAT Precision Marksman to put a .308 round into his cranial cavity. Graham V. Connor applies in both cases.

If a police aircraft is used, the same caselaw applies if the pilot is in the aircraft or sitting in a cubicle a distance away.


Hester v. US, 265 U.S. 57 (1924)-the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields.

California v. Ciraolo, 476 U.S. 207(1986)-The Fourth Amendment simply does not require police traveling in the public airways at 1000 feet in a fixed wing aircraft to obtain a warrant in order to observe what is visible to the naked eye.

Dow Chemical Co. v. United States, 476 U.S. 227(1986)-The use of vision enhancement equipment accessible to the public to examine open fields from a plane is permissible.

United States v. Dunn, 480 U.S. 294 (1987)-The warrantless naked-eye observation of an area protected by the Fourth Amendment from an open field is not unconstitutional.

Florida v. Riley, 488 US 445 (1989)-Viewing contraband located on private property from a helicopter flying at 400ft. falls within the "plain view" doctrine and is not a search. The helicopter must be operated at a level that the general public can operate.

US v. Ishmael, 48 F.3d 850 (5th Cir. 1995)-The use of a thermal imager in an open field does not offend the Fourth Amendment.

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Crafty_Dog
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« Reply #711 on: April 01, 2013, 07:28:02 PM »

Hypothetical:

Citizen is in backyard having verbal fight with his wife.  It is rather loud.  There is a fence around the yard.  Beyond the fence are open fields with no vegetation.  There are no helicopters overhead.  However, there is an insect sized drone (i.e. for all practical purposese it is visually and auditorily undetectable) hovering just outside the fence.

Legal under the Fourth or not?
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G M
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« Reply #712 on: April 01, 2013, 07:35:28 PM »

Hypothetical:

Citizen is in backyard having verbal fight with his wife.  It is rather loud.  There is a fence around the yard.  Beyond the fence are open fields with no vegetation.  There are no helicopters overhead.  However, there is an insect sized drone (i.e. for all practical purposese it is visually and auditorily undetectable) hovering just outside the fence.

Legal under the Fourth or not?

Would a person with normal hearing standing in that public place be able to hear that? Perhaps a passing patrol car with windows down or an officer walking a beat, or a citizen who might call it in?
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G M
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« Reply #713 on: April 01, 2013, 07:39:23 PM »

http://www.luckygunner.com/12ga-3-uranium-drone-load-tacnition-5-rounds



Details

 Big Brother is watching, and with modern technology, if Big Brother can see it, he can turn it into a giant smoking crater with just the press of a button. Even your secret remote wilderness bunker is no match for today’s military drones. In partnership with Tacnition Ammo, Lucky Gunner is happy to introduce a new way for you to fight back against the All Seeing Eye with our new anti-drone shotgun loads.

Years of research and development have gone into these highly effective 12 gauge shells that can turn even Joe Biden’s double barrel shotgun into an instant anti-aircraft platform. Specially formulated propellant is capable of launching 9 pellets of depleted uranium rounds up to 1 km straight up into the air. With accurate shot placement, this armor piercing buckshot will disable vital systems on modern military drones. At minimum, the force of impact will disable navigation systems, but in over 60% of our field tests, the drones were incapable of remaining airborne after contact with our Anti-Drone Loads.

NOTE: Drone Loads are intended for entertainment use only and not intended to be used in any manner not in accordance with federal and local laws. Lucky Gunner assumes no responsibility for any illegal activity involving Tacnition Drone Ammo.
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G M
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« Reply #714 on: April 01, 2013, 07:49:26 PM »

Hypothetical:

Citizen is in backyard having verbal fight with his wife.  It is rather loud.  There is a fence around the yard.  Beyond the fence are open fields with no vegetation.  There are no helicopters overhead.  However, there is an insect sized drone (i.e. for all practical purposese it is visually and auditorily undetectable) hovering just outside the fence.

Legal under the Fourth or not?

Would a person with normal hearing standing in that public place be able to hear that? Perhaps a passing patrol car with windows down or an officer walking a beat, or a citizen who might call it in?

Reasonable Expectation of Privacy (II) (podcast transcript)


Miller:    Hey, this is Tim Miller and Jennifer Solari.  We’re back again talking about  Reasonable Expectation of Privacy.  Jenna I’ve got stuff in my house that can be seen through the picture window.  You’ve told me that I’ve probably got a reasonable expectation of privacy inside of my house.  Correct?

Solari:    Yes.

Miller:      Well, I’ve got stuff in my house that can be seen through the picture window.  If a government agent is sitting out on the sidewalk, they can look inside that picture window and see things that are inside my house.  I think I know the answer to this; but, does the Fourth Amendment forbid government agents from looking at it without a warrant?

Solari:    No, absolutely not. Essentially, that would mean that agents who have every right to be where they are, would be obligated to cover their eyes and stick their fingers in their ears and hold their noses when they come across evidence that just happens to float by or be within public view.  Mr. Keith Hunsucker coined the term, “right to be, right to see.”   And the situation you gave me, that government agent is just standing out on a public sidewalk, where he has every right to be, should he happen to turn his head and see something illegal, say a marijuana plant or something in your picture window, then he’d have every right to be looking at that. And as we talked about earlier, you do have REP inside your house, but if you put something in an area where it’s exposed to the whole world, then you no longer really have any REP in that item, the agent would be able to see that, and there’s no problem with that.

Miller:    So it sounds to me like a government agent could look inside the house, gather  information from a vantage point, or where he has a right to be, and use that to support a warrant.

Solari:    That’s right.  And, without any other information, that’s really what the agent would be limited to doing.  Just because the agent can see something from a public place, doesn’t necessarily mean that the agent can then physically enter your house to grab that contraband.  Without more facts, all the agent could really do is just gather that information with his senses and then use it to try to establish probable cause to get a warrant.

Miller:    So it’s right to be, right to see.  Anything else?

Solari:    Sure, well it’s right to be, right to see, hear, smell as long as the agent has a right to stand or sit wherever he or she finds himself.  So, from a public sidewalk like you said the agent could see through a window into a house - there’s no problem with that.  Of vehicles, say the agent’s walking through a parking lot on his way to the store and he happens to look into a person’s vehicle, and sees some contraband just laying there on the back seat.  Again, the agent has a right to be in that parking lot just like anyone else, so there’s no problem looking right into that car.  

Miller:    Let me stop you just for a second.  A lot of these vehicles now a days have the tinted windows.

Solari:    Right.

Miller:    Can that agent get pretty nosey and just stick his face right up against that window and look inside?

Solari:    Sure can.  Because it’s in a public area and that’s where you’d expect to find just about anyone.  So as long as that agent has a right to be where he is, sure he could put his face right up to your car window and then use whatever information he’s able to gain with his senses just by looking inside.  

I think we talked about a situation on a previous Podcast, where I’m in my hotel room, having a conversation about an illegal transaction of some sort, and there’s an agent standing out in the hotel room hallway listening to my conversation on the other side of the door.  Now, that hallway is where you would expect just about anybody to be, housekeeping or room service.  So, a government agent certainly has ever right to be there.  And, if I happen to be talking loudly enough, so that agent can hear me - either by standing outside or even putting his ear right up against that door - he can do that. If he can hear me, then he can use that information to establish probable cause.
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Crafty_Dog
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« Reply #715 on: April 02, 2013, 05:47:08 AM »

“right to be, right to see.”

In my hypothetical, the husband and wife, looking around can reasonably assume they are alone; doesn't it matter that the policeman can's be seen?

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G M
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« Reply #716 on: April 02, 2013, 07:22:31 AM »

“right to be, right to see.”

In my hypothetical, the husband and wife, looking around can reasonably assume they are alone; doesn't it matter that the policeman can's be seen?



If someone is yelling inside a home or apartment, is it possible that they can be heard yet not see persons outside?

That would be a yes.
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Crafty_Dog
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« Reply #717 on: April 02, 2013, 07:28:39 AM »

Please do not evade my hypothetical.  I have constructed in precisely so line of sight issues are excluded.
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G M
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« Reply #718 on: April 02, 2013, 07:45:58 AM »

Please do not evade my hypothetical.  I have constructed in precisely so line of sight issues are excluded.

Can the yelling be heard by someone with a normal range of hearing located in a public place?
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Crafty_Dog
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« Reply #719 on: April 02, 2013, 11:58:43 AM »

In the hypothetical the other side of the fence is open space, containing no places where a human can hide.  Any normal person would think he is alone.
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G M
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« Reply #720 on: April 02, 2013, 12:05:34 PM »

In the hypothetical the other side of the fence is open space, containing no places where a human can hide.  Any normal person would think he is alone.

I don't think that is relevant. Anything that exits the home into public space isn't considered a search for 4th Amd. purposes.
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G M
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« Reply #721 on: April 02, 2013, 12:06:10 PM »

Hester v. US, 265 U.S. 57 (1924)-the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields.
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G M
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« Reply #722 on: April 02, 2013, 12:10:13 PM »

https://ssd.eff.org/your-computer/govt/privacy

Public places. It may sound obvious, but you have little to no privacy when you are in public. When you are in a public place — whether walking down the sidewalk, shopping in a store, sitting in a restaurant or in the park — your actions, movements, and conversations are knowingly exposed to the public. That means the police can follow you around in public and observe your activities, see what you are carrying or to whom you are talking, sit next to you or behind you and listen to your conversations — all without a warrant. You cannot necessarily expect Fourth Amendment protection when you’re in a public place, even if you think you are alone.
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G M
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« Reply #723 on: April 02, 2013, 12:14:14 PM »

http://www.volokh.com/2010/02/09/the-misunderstood-reasonable-expectation-of-privacy-test/

The Misunderstood “Reasonable Expectation of Privacy” Test
 
Orin Kerr • February 9, 2010 8:54 pm


Discussions about the Fourth Amendment sometimes include arguments that look like this:
 

The Fourth Amendment protects reasonable expectations of privacy. I expect privacy in _________, and I’m pretty reasonable, so I have a reasonable expectation of privacy in ________ and the Fourth Amendment should therefore protect it.
 
This reasoning is really common, but it’s also based on a misunderstanding. It is based on the erroneous belief that the test for whether government conduct violates a “legitimate” or “reasonable” expectation of privacy under the Fourth Amendment is whether a reasonable person would expect privacy in what the government learned. I can certainly understand why a lot of people think that way. After all, the test is “reasonable expectation of privacy,” which sure sounds like it should be based on whether a reasonable person would expect privacy. But it turns out that this isn’t how the Fourth Amendment works, and I wanted to explain why.
 
The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.

In the case of the “reasonable expectation of privacy” test, the Supreme Court has repeatedly refused to provide a single test for what makes an expectation of privacy “reasonable.” Instead, it has used different approaches in different settings. In some settings, an expectation of privacy becomes reasonable when it is a good thing as a policy matter for the Fourth Amendment to protect it. In other settings, an expectation of privacy becomes reasonable when it is backed by positive law outside the Fourth Amendment. In other settings, an expectation of privacy becomes reasonable when it shields the government from particularly private facts. Finally, in some settings, an expectation of privacy is reasonable when common social norms make exposure jarring or unlikely. I have called these four approaches the Four Models of Fourth Amendment Protection; they are four different ways of interpreting what makes an expectation of privacy reasonable, and they each apply in various degrees in different factual settings.

It sounds complicated, I realize, and it is. But I think there are good practical reasons why the Supreme Court has refused to provide a single test for what makes an expectation of privacy reasonable; no one test consistently and accurately distinguishes government investigative steps that need Fourth Amendment regulation from those that don’t. (See the Four Models paper linked to above starting at page 25 for the detailed answer of why.) Whatever the reason, the key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids.
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G M
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« Reply #724 on: April 02, 2013, 12:23:50 PM »

  In determining whether the Fourth Amendment warrant requirement applies, the threshold issue is whether a particular governmental activity is a "search" within the meaning of the Fourth Amendment. The applicability of the Fourth Amendment depends on "whether the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by governmental action." Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

        When a police officer overhears a conversation without the aid of any listening device, from a vantage point at which he is legally present, the officer's use of his sense of hearing does not constitute a Fourth Amendment search. There is no reasonable expectation of privacy in a conversation that can be heard without the assistance of an artificial device.  People v. Hart, 787 P.2d 186, 188 (Colo. App. 1989) (conversation overheard through adjoining door between motel rooms);  United States v. Hessling, 845 F.2d 617 (6th Cir. 1988). See United States v. Agapito, 620 F.2d 324 (2d Cir. 1980), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980).

        Eavesdropping statutes require use of subjective and objective tests (privacy expectation and the reasonableness thereof) to determine whether a person's conversation qualifies as protected oral communications. People v. Hart, 787 P.2d 186 (Colo. App. 1989). 
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Crafty_Dog
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« Reply #725 on: April 02, 2013, 12:48:58 PM »

Those are some helpful posts GM, thank you. 

Following up on your last one, is not the drone of my hypothetical a "listening device"?
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G M
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« Reply #726 on: April 02, 2013, 12:54:49 PM »

Those are some helpful posts GM, thank you. 

Following up on your last one, is not the drone of my hypothetical a "listening device"?

Possibly, depending on what caselaw develops. I'd say that a drone using audio input that replicates normal human hearing wouldn't fall under that while a drone equipped with microphones that can penetrate far beyond normal human range would, using a standard set in KYLLO v. UNITED STATES.
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Crafty_Dog
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« Reply #727 on: April 02, 2013, 01:21:37 PM »

What do you think of a world wherein everything outside one's front door is recorded?
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bigdog
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« Reply #728 on: April 02, 2013, 01:23:12 PM »

Those are some helpful posts GM, thank you. 

Following up on your last one, is not the drone of my hypothetical a "listening device"?

Possibly, depending on what caselaw develops. I'd say that a drone using audio input that replicates normal human hearing wouldn't fall under that while a drone equipped with microphones that can penetrate far beyond normal human range would, using a standard set in KYLLO v. UNITED STATES.

"...depending on what caselaw develops." I thought you said that there was established case law. There is real discussion about the applicability of Kyllo because of the idea that in 2001, the technology in question wasn't common. This seemed to be an issue with Scalia in the opinion of the court. I posted a CRS report on this question a while back.
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G M
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« Reply #729 on: April 02, 2013, 07:13:44 PM »

There is established caselaw that cover most things, as the last several posts from me demonstrated.
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G M
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« Reply #730 on: April 02, 2013, 07:14:38 PM »

What do you think of a world wherein everything outside one's front door is recorded?

By human brains or hard drives? Or did you have another storage media in mind?
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bigdog
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« Reply #731 on: April 02, 2013, 07:33:02 PM »

There is established caselaw that cover most things, as the last several posts from me demonstrated.

But not drone surveillance.
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G M
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« Reply #732 on: April 02, 2013, 07:35:30 PM »

There is established caselaw that cover most things, as the last several posts from me demonstrated.

But not drone surveillance.

Drones are aircraft. If you'll scroll back, you'll see several cases involving aircraft surveillance.
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G M
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« Reply #733 on: April 02, 2013, 07:41:25 PM »

http://www.forbes.com/sites/johnvillasenor/2012/09/20/will-drones-outflank-the-fourth-amendment/

Will "Drones" Outflank the Fourth Amendment?





In a word, no. The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has been a cornerstone of privacy from government intrusion since 1791. It has served us well across more than two centuries of technology advances, and there is no reason to expect that it will suddenly lose its protective power when domestic use of unmanned aircraft becomes common.

In February 2012, President Obama signed an FAA bill into law that provides for the integration of “drones,” or more properly, unmanned aerial vehicles (UAVs), into the nation’s airspace. This has generated legitimate concerns that UAVs could be used by the government in ways that infringe privacy rights, particularly in light of three 1980s-era Supreme Court decisions that found no Fourth Amendment violation in warrantless observations from manned government aircraft.

In 1986, the Court ruled in California v. Ciraolo that police officers who identified marijuana plants in a suspect’s backyard from a plane at an altitude of 1000 feet did not violate the Fourth Amendment. Three years later in Florida v. Riley, a majority of justices reached the same conclusion regarding observations of marijuana plants in a greenhouse from a helicopter at 400 feet. And in Dow Chemical Co. v. United States, a 1986 decision addressing government use of a commercial mapping camera to take aerial photographs of an industrial facility (as opposed to the “curtilage” of home considered in Ciraolo and Riley), the Court ruled in favor of the government.

These decisions do indeed indicate that government investigators will sometimes be able to use UAVs without a warrant. However, that does not mean that all government UAV observations, no matter how invasive, will be constitutional. In fact, a careful review of the opinions in these and other relevant Supreme Court cases suggests that the Fourth Amendment may provide significantly more protection than is often assumed.

In Ciraolo, for example, the Court held that the “Fourth Amendment simply does not require the police traveling in the public airways at this altitude [1000 feet] to obtain a warrant in order to observe what is visible to the naked eye.” A UAV equipped with an imaging system capturing much more detail than could the human eye would fall outside the scope of this holding. So, too, would one operating outside of public navigable airspace, though defining exactly where that lies for UAVs can be complex.

In Riley, which also involved naked eye observations, Justice White and the three other justices who joined his opinion found no Fourth Amendment violation in part because “no intimate details connected with the use of the home or curtilage were observed.” Justice O’Connor’s Riley concurrence emphasized that reasonable expectations of privacy, and not “compliance with FAA regulations alone,” should determine the constitutionality of aerial observations.

The Dow Chemical Court concluded that “the open areas of an industrial plant complex are not analogous to the ‘curtilage’ of a dwelling for purposes of aerial surveillance.” Yet, even under that much lower privacy standard, the Court implied the existence of some constitutional bounds, noting that “the photographs here are not so revealing of intimate details as to raise constitutional concerns.”

Several more recent Supreme Court decisions in non-aviation cases are also relevant to UAV privacy. In 2001, the Court ruled against the government in a case involving use of a ground-based thermal imager to detect an indoor marijuana growing operation by measuring the temperature of the roof and outside wall of a house. Writing for the Court in Kyllo v. United States, Justice Scalia expressed concern that allowing the government to freely collect any information “emanating from a house” would put people “at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.” The rule adopted by the Kyllo Court provides that when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

As has often been noted (including in Justice Stevens’ dissent in Kyllo), the “not in general public use” restriction can weaken with time as a formerly rare technology becomes common. However, Kyllo stops well short of endorsing the constitutionality of using a commonly available technology to observe a home. As Justice Scalia wrote in response to the dissent on this specific point, the thermal imaging in Kyllo was not “routine.” The Kyllo Court did not need to address the question of observations using routine technology, and specifically declined to do so.

Under a balanced reading of Kyllo, government use of a UAV to reveal “details of the home that would previously have been unknowable without physical intrusion” would be unconstitutional today. Ten years from now, when UAVs will be common, that still may be the case – but that conclusion will need to come from a ruling other than Kyllo.

Most recently, the Supreme Court found against the government in United States v. Jones [PDF], a January 2012 decision that addressed the constitutionality of affixing a GPS tracking device to a vehicle without a valid warrant. While the basis for the decision was narrow – the Court found a Fourth Amendment violation in the physical trespass that occurred during the placement of the GPS device on the vehicle – the aspects of the Jones opinions addressing extended surveillance are directly relevant to long-endurance UAVs.

The opinion of the Court, delivered by Justice Scalia, stated that extended electronic surveillance “without an accompanying trespass” may be unconstitutional, but noted that the “present case does not require us to answer that question.” In a concurrence, Justice Alito wrote that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” And in a separate concurrence, Justice Sotomayor noted the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements.” Thus, the justices are on record recognizing the constitutionality question raised by new technologies enabling extended surveillance, though they deferred its resolution to another day.

In the aggregate, these rulings provide cause for optimism that, with respect to government UAV observations, the Fourth Amendment will be reasonably protective. Whether it will be sufficiently protective is a different question, and one well worth attention. But when engaging in that discussion, it is important not to lose sight of the substantial constitutional foundation we already have.
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Crafty_Dog
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« Reply #734 on: April 04, 2013, 11:47:31 AM »

GM:

I've been too busy to respond with the level of focus that your helpful posts merit, but in the meantime here is something on the hypocrisy of Bloomberg and the NYPD.  Yes there is plenty of claptrap in it, but the larger point about the hypocrisy seems fair to me.

Marc

====================

http://www.alternet.org/suddenly-nypd-doesnt-love-surveillance-anymore
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G M
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« Reply #735 on: April 08, 2013, 03:05:59 PM »

GM:

I've been too busy to respond with the level of focus that your helpful posts merit, but in the meantime here is something on the hypocrisy of Bloomberg and the NYPD.  Yes there is plenty of claptrap in it, but the larger point about the hypocrisy seems fair to me.

Marc

====================

http://www.alternet.org/suddenly-nypd-doesnt-love-surveillance-anymore

The Peelian principles describe the philosophy that Robert Peel developed to define an ethical police force. The principles traditionally ascribed to Peel state that:
■Every police officer should be issued an identification number, to assure accountability for his actions.
 ■Whether the police are effective is not measured on the number of arrests, but on the lack of crime.
 ■Above all else, an effective authority figure knows trust and accountability are paramount. Hence, Peel's most often quoted principle that "The police are the public and the public are the police."
 
However, it has been suggested that Peel's list of principles was more likely authored by twentieth century policing scholars than by Peel himself; although Peel discussed the spirit of some of these principles in his speeches and other communications, researchers Lentz and Chaires found no proof that he ever actually compiled a formal list.

_________________________________________________________________________________________
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2043907

A Due Process Right to Record the Police

Glenn Harlan Reynolds
University of Tennessee College of Law

John A. Steakley
John A. Steakley, P.C.

April 22, 2012

Washington University Law Review, Vol. 89, No. 30, 2012, Forthcoming
University of Tennessee Legal Studies Research Paper No. 190


Abstract:     
There has been considerable discussion of citizens' First Amendment right to record the police. This essay, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and litigation are sure to be forthcoming.

Number of Pages in PDF File: 9

Keywords: first amendment, due process, recording, video, photography, police, law enforcement, citizen

Accepted Paper Series
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objectivist1
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« Reply #736 on: April 09, 2013, 03:31:01 PM »

I found out about this by listening to the Kim Kommando radio show Sunday night.  It's far superior to Google or Bing or Yahoo, since it does not record your searches or track you in any way so marketers can contact you:

https://duckduckgo.com/
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Crafty_Dog
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« Reply #737 on: April 23, 2013, 09:18:54 AM »

Pasted from another forum which prefers to remain low-key with permission of the author:

**********WARNING: layman about to delve into the murky waters of the realm of law**********

First, the 4th Amendment to the U.S. Constitution:
Quote:
Originally Posted by Bill of Rights
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable cause being defined as:

Quote:
In General
A. Probable cause exists when the facts and circumstances within an officer’s knowledge, and of which she has reasonably trustworthy information, are sufficient in themselves to permit a person of reasonable caution to believe that:
1. Arrests
An offense has been committed, and the person to be arrested committed it.
2. Searches
The item to be searched for is present at a certain place at a certain time and is either:
A. The fruit of a crime;
B. The instrumentality of a crime;
C. Evidence of a crime; or
D. Contraband.
http://sparkcharts.sparknotes.com/le...e/section6.php 

or [emphasis added]

Quote:
Generally speaking, probable cause is described from the point of view of a reasonable person. In other words, probable cause is an objective test and therefore, it can’t simply stem from a police officer’s hunch or suspicion that a crime has been committed. Specific facts and circumstances are required to make an adequate showing of probable cause that a crime has been committed or that evidence of a crime exists at the location that is to be searched.

http://www.4thamendment.net/probablecause.html 

Blanket searches are prohibited:

Quote:
Blanket searches are unreasonable, however 'evenhanded' they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but 'evenhanded' general police searches.

http://www.lectlaw.com/def/f081.htm 

The only potentially applicable exception I can find is for Exigent Circumstances [emphasis added]:

Quote:
There are also "exigent circumstances" exceptions to the warrant requirement. Exigent circumstances arise when the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.

https://en.wikipedia.org/wiki/Fourth...s_Constitution 

or

Quote:
There is also an exception to the requirement of probable cause in certain emergency situations. If there is a threat to public safety or a risk that evidence will be lost or destroyed, police are not required to make a showing of probable cause in order to conduct a search and seizure.

http://www.4thamendment.net/probablecause.html 

So, some questions that come to mind are:

1. If the police cordon off a 30-block area (or whatever it was) does the exigent circumstance of a dangerous suspect they believe to be on the loose in that area give them carte blanche authority to barge into and search each and every home in that large area they so choose whether or not they have any articulable suspicion the suspect is in a particular home?

2. If they lack that specific reason and remove residents from an arbitrary house are they actually placing those residents, previously holed up in their home in relative safety, at increased danger from the suspect believed to be in the area?

3. If they don't have the authority to search homes door-to-door, might they instead search the yards and/or curtilage of the homes in the area for evidence of the suspect, particularly signs of forced entry, which would then give them the probable cause for a search of the home in question? Wouldn't this be a more efficient method of searching the area anyway and in fact likely have most quickly led to the location of the suspect in this case?

4. If they announce their intention to search an arbitrary occupied home in the cordoned area without any particular suspicion and are met by armed residents who do not match the suspect description, affirm that the suspect is not in the home and refuse/resist entry by the police, will the police take the time out from their search to engage the residents by force, up to and including deadly force, in order to conduct that search, or back off and move along to the next house? Recall, this is all ostensibly justified in order to protect the public from danger.

Inquiring minds want to know....
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DougMacG
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« Reply #738 on: April 29, 2013, 12:29:02 PM »

Bringing this over from 'Constitutional Issues' by request.

Does the Right to Privacy apply to gun ownership?

If not, why not?

OK, but Griswold says [first, third, fourth, fifth and ninth]. With its specificity, my answer to "does" would still be no.

I very much appreciate Bigdog's answer, provided in the context of precedent and settled case law.  I need to go back and re-read Griswold to better understand the meaning.  A follow up question for BD, if I may ask: Should a right of privacy apply to gun ownership?  (And if not, why not?)

This question is crucial in the gun control debate.   The biggest point of contention remaining is whether or not the government at any level should be keeping a registry.  The publishing of the gun owners and addresses in one area reportedly led to break-ins of those homes.  Once a gun purchase is approved, the ownership of that gun is a fundamental right.  Shouldn't there be a privacy right associated with that transaction and resulting ownership?
-----

It seems to me (mentioned previously) that a real 'right of privacy' is something we recognize quite selectively and step on quite freely when it doesn't fit with our other objectives.

A right of privacy was recognized by the Court in the Griswold decision to protect the choice of using birth control.  Privacy applies to homosexual acts in Lawrence, but not to everything that happens in a bedroom.  Privacy guarantees the right to slaughter your unborn young in Roe, up to a point, and less so after the decisions of Webster and Casey.  Where else does privacy apply? Where else should it apply?  Are tax returns private?  Gun ownership?  Census questionnaire information disclosed?  Is a Colorado medical marijuana license list private - even if it is a violation of federal law?  Why is there no right of privacy associated with the procurement of health care services?  

Did the right of privacy originate in these Court decisions or did it pre-exist, on all private matters, as a fundamental right, and require a compelling state interest in order to limit or violate it?
---------------

Crafty:  "Good point about privacy and the procurement of health care.  Although obvious, I confess I had not made that connection."

The Executive, Legislative and Judicial Branches did not make that obvious connection either.

The answer could have been that it was over-ridden by a 'compelling government interest' but that is of course nonsense.   Strict scrutiny was not applied to Obamacare (narrowly tailored??), therefore your privacy was not recognized as a fundamental constitutional right.  Instead they selectively ignored privacy on this one issue while relying on it completely to decide others.
« Last Edit: April 29, 2013, 02:50:16 PM by DougMacG » Logged
bigdog
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« Reply #739 on: April 29, 2013, 02:35:20 PM »

Quick note: I see that my fingers were too fast or my eyes too slow. Privacy is is found in first, third, fourth, fifth and ninth. If I spell it out, maybe I'll get it right. Sheesh, and with apologies.
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G M
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« Reply #740 on: April 29, 2013, 05:14:48 PM »

So, some questions that come to mind are:

1. If the police cordon off a 30-block area (or whatever it was) does the exigent circumstance of a dangerous suspect they believe to be on the loose in that area give them carte blanche authority to barge into and search each and every home in that large area they so choose whether or not they have any articulable suspicion the suspect is in a particular home?

I sure wouldn't think so. I doubt the courts would either, except in very extreme circumstances, like a potential nuclear terror incident.

2. If they lack that specific reason and remove residents from an arbitrary house are they actually placing those residents, previously holed up in their home in relative safety, at increased danger from the suspect believed to be in the area?

Possibly. Under normal circumstances, LE has no direct duty to protect individuals, UNLESS we deprive them of their freedom. I'd think that if you remove someone from their home under the color of your authority, and in doing so, place them into harm's way and they suffer harm as a result, there would be serious liability there.

3. If they don't have the authority to search homes door-to-door, might they instead search the yards and/or curtilage of the homes in the area for evidence of the suspect, particularly signs of forced entry, which would then give them the probable cause for a search of the home in question? Wouldn't this be a more efficient method of searching the area anyway and in fact likely have most quickly led to the location of the suspect in this case?

I'd think so.

4. If they announce their intention to search an arbitrary occupied home in the cordoned area without any particular suspicion and are met by armed residents who do not match the suspect description, affirm that the suspect is not in the home and refuse/resist entry by the police, will the police take the time out from their search to engage the residents by force, up to and including deadly force, in order to conduct that search, or back off and move along to the next house? Recall, this is all ostensibly justified in order to protect the public from danger.

How would they know these were not associates of the fugitive terrorists shielding them? If police show up to search your home, the wrong response is to do the above, anytime, though during the Boston Bombing manhunt it would be an especially poor choice. If police enter your home, and the do so illegally, the correct way to address it is through the courts and enjoy the large check.

Inquiring minds want to know....
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G M
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« Reply #741 on: May 06, 2013, 07:52:58 PM »

http://blogs.smithsonianmag.com/artscience/2013/05/creepy-or-cool-portraits-derived-from-the-dna-in-hair-and-gum-found-in-public-places/

Very interesting.
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DougMacG
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« Reply #742 on: May 13, 2013, 01:20:15 PM »

My address has been randomly selected to receive the 28 page "American Community Survey", all of it a violation of my privacy and offensive to me.  I have just received their third communication, including the following:

"You are required by law to respond to this survey."

We can discuss this in detail.  What I need right now is legal advice!  I can't imagine answering this.  

What article of the constitution authorized this?  The value of my house?  Property insurance?  How many times has this person been married?  College degrees?  Ancestry?!  The federal government needs to know that to determine whether to build a road or hospital?  The federal government builds roads and hospitals near me??  Absences from work, how many minutes it takes to get to work?  Do I have to disclose any stops I make?  How many ride in my car?  Income - Don't you already have that?  Health insurance with choices a-h!  Who saw THAT coming?

WHAT TIME DO YOU USUALLY LEAVE HOME?  

My name, address, phone number, birth date?

When was the last time you guys had a breach of private information, campaign 2012?? ??
« Last Edit: May 13, 2013, 02:37:27 PM by Crafty_Dog » Logged
Crafty_Dog
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« Reply #743 on: May 13, 2013, 01:35:15 PM »

From whom is this communication?
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bigdog
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« Reply #744 on: May 13, 2013, 02:34:00 PM »

http://www.census.gov/acs/www/about_the_survey/american_community_survey/
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Crafty_Dog
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« Reply #745 on: May 13, 2013, 02:39:37 PM »

FWIW I don't answer the questions I don't want to answer.

The questions about race I answer by marking "other" and filling in the space with "human"

  About 20 years ago I had some bureau flunky knock on my door to chastise me for not answering all the questions.  I told her the ones I did not answer were none of the governments business and closed the door in her face.  That was the end of it.
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jcordova
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« Reply #746 on: May 13, 2013, 02:52:58 PM »

Good answer Guro.. smiley
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G M
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« Reply #747 on: May 13, 2013, 05:14:32 PM »

**Remember, Obama forbids local level law enforcement from inquiring if someone is here illegally.**

http://www.gao.gov/decisions/other/289852.htm


Legal Authority for American Community Survey, B-289852, April 4, 2002



 
B-289852
 
 
 
April 4, 2002
 
 The Honorable Bob Barr
 Vice Chairman
 Committee on Government Reform
 House of Representatives


 Subject:  Legal Authority for American Community Survey
 
Dear Mr. Vice Chairman:
 
 This responds to your letter regarding the legal authority of the U.S. Census Bureau (Bureau) to conduct the American Community Survey (ACS), a monthly survey of a sample of households that, beginning in 2003, is intended to replace the long form questionnaire for the decennial census in 2010.  You asked us to provide (1) the legal authority under which the Bureau is conducting the ACS, including any legislative history concerning the development and implementation of ACS, (2) the Bureau's legal authority to require recipients to respond to the ACS, and (3) information on any other federal government questionnaires or surveys that require similar specific, detailed personal information be provided to the government.
 
 In order to respond to your questions, we examined various legislative materials such as public laws, committee reports and hearings, and the Congressional Record for references to the ACS, requested and received comments from the Department of Commerce (Commerce), and met informally with Commerce and Bureau officials to discuss these issues.  We also searched an Office of Management and Budget (OMB) database for surveys that require specific detailed personal information.  As discussed in detail below, we find that the Bureau has the authority under 13 U.S.C. §§ 141 and 193 to conduct the ACS.  Although there is little legislative action tracking this Bureau initiative, the Bureau clearly has authority to require responses from the public to this survey.  See 13 U.S.C. § 221.  The Bureau must still receive clearance for the ACS through the Paperwork Reduction Act process.  Finally, we found no other government surveys that respondents are required to respond to that ask specific, detailed personal information similar to that required by the ACS.
 

 BACKGROUND
 
 According to Commerce, the ACS, which is designed to replace the long form portion for future decennial censuses, tracks the questions asked in the long form questionnaire from the 2000 Census.  The long form questionnaire asked a sample of persons and households for information on population topics, such as ancestry, veteran status, disability, labor force status, and income, and housing topics, such as value of home or rent paid, size and age of structure, plumbing and kitchen facilities, and expenses for utilities, mortgage, and taxes.
 
 The Bureau began conducting supplementary surveys of selected counties under its authority at 13 U.S.C. § 182 in 1996 using the ACS methodology to test the operational feasibility of collecting long form type data in a different methodology from that of the decennial census.  Beginning in 2003, the Bureau plans to expand the ACS nationwide in a yearly sample of three million households (250,000 each month) as part of its decennial census in order to move from a once-every-ten years activity to continuous data collection and data dissemination.  By starting in 2003, data will be available for areas and population groups of 65,000 or more beginning in 2004 and for small areas and population groups of less than 20,000 people beginning in 2008.[1]  According to Bureau officials, this will provide information on a timelier basis than is now currently available.  For example, the most current long form information available from the Bureau is from the 1990 Census, since the 2000 Census data will not be available until this summer.
 
 According to Commerce, the ACS information will provide more current data to a number of federal agencies including the Department of Health and Human Services, the Department of Education, and the Food and Nutrition Service of the Department of Agriculture.
 
 DISCUSSION
 
 Article I of the United States Constitution requires an enumeration of the population every ten years "in such Manner as they [Congress] shall by Law direct."  U.S. Const. art. I, § 2, cl. 3.  To implement this Constitutional requirement, Congress enacted 13 U.S.C. § 141, which requires "a decennial census of population as of the first day of April of such year . . . in such form and content as he [the Secretary of Commerce] may determine . . . .  In connection with any such census, the Secretary is authorized to obtain such other census information as necessary."  Section 141 also authorizes the decennial census to include the use of sampling procedures and special surveys.[2]  The uses of census data have grown significantly beyond congressional apportionment of representatives in Congress into many other areas such as managing federal agencies, allocating federal aid and assistance, assisting local governments, and helping businesses.[3]  The courts have generally viewed the authority of Commerce and the Bureau to gather census information broadly.[4]   In a recent court decision, Morales v. Evans,[5] the court held that the questions and the long form from the 2000 census are constitutional.
 
 In Morales, the court first reviewed both the short form and the long form questions from the 2000 Census and traced the origin of each question from prior censuses.  The court noted the authority of the Bureau to collect more than headcount information, and then specifically addressed whether such collection violated the plaintiffs rights under the Fifth Amendment (due process), First Amendment (protection against compelled speech), and Fourth Amendment (unreasonable and illegal search).  In each instance the court found the collection of information related to governmental purposes and there was no basis for holding such collection unconstitutional.
 
 While Census clearly has authority to conduct the ACS, we found no public laws, committee reports, or other congressional actions in which Congress has required the Bureau to develop and implement the ACS.  Two oversight hearings were held in 2000 and 2001 concerning the ACS,[6] and Congress has provided funding over the past several years for this program under the caption of "continuous measurement."[7]  Commerce states that testing of the ACS has been part of the President's budget since 1996 and a pilot program has been funded since that time.  Commerce also points out that it has regularly kept Congress informed of the development and intended implementation of the ACS in the annual budget justification that accompanies the President's budget.  It is clear that Census was not reacting to congressional direction in developing the ACS but acting on its own initiative to address the costs associated with the collection of data in the decennial census and the timeliness of that data.
 
 On the basis of the statutory authority cited above and the discretion recognized by the courts, we conclude that Commerce and the Bureau have the legal authority to conduct the ACS under 13 U.S.C. §§ 141 and 193.  This finding does not address the question of whether the data should be collected, but only whether there is sufficient legal authority to conduct this annual survey.[8]
 
 With regard to the question of whether the Bureau may require recipients to respond to the ACS, Bureau officials stated that the ACS is conducted under sections 141 and 193, cited above, and that because responses to Census Bureau censuses and surveys are required under 13 U.S.C. § 221, responses to the ACS are mandatory.  Section 221 subjects recipients of a survey to monetary penalties for failure to answer questions on any survey conducted by the Bureau under certain authorities found in Chapter 5 of Title 13 of the United States Code.  These authorities include censuses of manufacturers and other businesses under section 131, the decennial census of population under section 141, and interim current data for collection of population data between each census under section 181.  Section 225 permits application of penal provisions in certain cases.  For example, the provision for imprisonment does not apply to the interim current data surveys under section 181, although it does apply to the decennial census.  13 U.S.C. § 225(b).  We note that the courts have held that there is a sufficient governmental interest to require the collection of census data and to assess penalties for the failure to comply.[9]  We conclude therefore that the Bureau may require responses to the ACS survey.
 With regard to providing statutory references for each question on the survey which is "required by federal law to manage or evaluate government programs," Commerce noted that each federal agency submits to the Interagency Committee for the ACS, led by OMB, its legal justifications for agency-specific topics and questions, and the questionnaire content is reviewed by the Interagency Committee.  Commerce has provided an extensive table of statutory authorities to justify each question, but the response from Commerce notes that additional information may be added or corrected by the agencies as Commerce prepares its submission of the ACS questionnaire under the Paperwork Reduction Act (PRA) clearance process.[10]  Since this process for development of the ACS questionnaire is still underway, we cannot state as a matter of law whether the requisite statutory authority supports each question.  However, Commerce and the Bureau will be required under the provisions of 44 U.S.C. §§ 3506 and 3507 to demonstrate that this collection of information is necessary, is not duplicative, and is understandable to those who are to respond.
 
 Finally, to determine what other federal government surveys require specific, detailed personal information, we used information provided by federal agencies on Form 83-I, the Paperwork Reduction Act submission to OMB.[11]  Agencies requesting clearance to collect information are required to report on this form the various characteristics of the collection including the following:  who the collection affects-e.g., individuals or households, businesses, or the federal government; whether responses to the collection are voluntary, required to obtain or retain benefits, or mandatory; and the purpose of the collection--e.g., program evaluation, general purpose statistics, regulatory, or compliance.
 
 Using information provided by OMB, we found no other government surveys that respondents are required to fill out that request specific, detailed personal information similar to that required by the ACS.  The only information collections that met the conditions of being required or mandatory and affecting individuals or households for statistical or research purposes were those related to the 2000 decennial censuses, including the ACS.
 
 CONCLUSION
 
 For the reasons set forth above, the Bureau has authority under 13 U.S.C. §§ 141 and 193 to conduct the American Community Survey.  The Bureau also has authority to require responses from the public to this survey. 
 
 We trust that this responds to your request.  Should you have any questions, please contact Ms. Susan A. Poling at (202) 512-2667.  We are sending an identical letter to The Honorable Dan Burton Chairman, Committee on Government Reform.
 
 Sincerely yours,
 Anthony H. Gamboa
 General Counsel
 


--------------------------------------------------------------------------------

[1]
"What is the American Community Survey?", www.census.gov/acs, visited on March 18, 2002.
[2] The authority of Commerce and the Bureau to gather census information has been viewed broadly by the courts except in one particular area--how data is gathered for purposes of the enumeration for the apportionment of seats in the U.S. House of Representatives.  See Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999), which held that sampling may not be used in the enumeration for apportionment purposes.
 
[3] See Decennial Census, Overview of Historical Census Issues, GAO/GGD-98-103 (1998); Douglas A. Kysar, Kids & Cul-De-Sacs: Census 2000 and the Reproduction of Consumer Culture, 87 Cornell L. Rev. 853, March 2002 (book review).
[4] Wisconsin v. City of New York, 517 U.S. 1, 17 (1996).
[5]116 F. Supp. 2d 801 (S.D. Tex. 2000), aff'd 275 F.3d 45 (5th Cir. 2001), cert. denied, 122 S. Ct. 1079 (Mem) (2002).
[6] The American Community Survey--A Replacement for the Census Long Form? : Hearing before the Subcomm. on the Census of the House Committee on Government Reform, 106th Cong. (2000); The Census Bureau's Proposed American Community Survey: Hearing before the Subcomm. on the Census of the House Committee on Government Reform, 107th Cong. (2001).
[7] See, e.g., H. Rep. No. 105-207, at 66-67 (1997).  See also Fiscal Year 2003 Budget Appendix, pp. 213-214 (2002).
[8] 13 U.S.C. § 141(f) directs Commerce to report to Congress three years in advance of the decennial census on the subjects to be covered and two years in advance on the questions to be asked in the decennial census.  Commerce and Bureau officials indicated to us that they intend to initiate the ACS in October 2002 if funding is available, even though they will not have time to provide the information contemplated by subsection 141(f).
[9] See Morales, discussed above; United States v. Rickenbacker, 309 F.2d 462 (2nd Cir. 1972), cert. denied, 371 U.S. 962 (1963); United States v. Little, 317 F. Supp. 1308 (D.Del. 1970).
[10] See the request for comments on the proposed collection of information under the Paperwork Reduction Act of 1995, Public Law 104-13, 67 Fed. Reg. 2186, Jan. 16, 2002.
[11] The key requirements under the Paperwork Reduction Act are set forth in Appendix II of Information Resources Management:  Comprehensive Strategic Plan Needed to Address Mounting Challenges, GAO-02-292, February 2002.
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G M
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« Reply #748 on: May 13, 2013, 05:17:46 PM »

http://www.examiner.com/article/american-community-survey-101-and-can-you-go-to-jail-for-ignoring-it

American Community Survey 101 and can you go to jail for ignoring it?
American Community Survey
April 2, 2011
By: D. Christian Moore


There has been a significant uptick in chatter on the internet and talk radio related to the “American Community Survey” (ACS). Much of this talk has centered on the “invasiveness” of the questions and the reported penalties for non compliance. There have also been many local news stories regarding complaints about the tactics used by those compiling survey data. As one might expect, some of the information which is generally available is good, some is incomplete, some is conjecture and some is just plain wrong or misleading.

The ACS is a survey conducted annually by the Department of Commerce under the auspices of the Census Bureau. At the Census Bureau’s website they have an ACS page with information related to how the data is used, the methodology behind the data collection and how participants are chosen each year. The Constitution authorizes a census to be taken every ten years, but the ACS was developed to collect annual data and capture changing trends during the intervening years between census data collections. The survey asks for names, ages, religious and ethnic categorizations of people living in the household. It also asks for employment and financial information of everyone in the house and the names and addresses of family members and employers. There are many other questions but I think the point about the detailed nature of the survey has been made. According to the Census Bureau, the data is used by government agencies and private businesses to determine infrastructure needs, resource allocation and population trends. A quick search through the Census Bureau’s ACS webpage revealed no information related to penalties and fines for refusing to complete the survey.
 
Opponents of the survey have complained the information is extremely invasive. To address privacy concerns the Census Bureau makes a point to demonstrating the steps they take to protect the data collected from unauthorized use or disclosure. To opponents however, it is not as much the fear of identity theft which motivates them but a general level of discomfort with providing so much personal information to the government, or anyone for that matter. This is a legitimate concern. Many opponents of the detailed statistical gathering state that according to the Constitution, the only information you are required to provide to the government is the number of people living at your address. Many also point to 4th Amendment protections against warrantless searches.

The Census Bureau actually addresses this on their website with a page discussing the legal precedents which have upheld their authority to collect more detailed information as part of the decennial census. That being said, the 2010 census form sparked controversy by asking for information beyond simply the number of people who live at a given address. Still left unclear is the constitutional authority to conduct ACS or any annual data collection separate from the decennial census. Given this controversy, it is not surprising that the ACS continues to elicit an almost visceral reaction from privacy advocates and citizens concerned about the size, scope and power of their government.
 
Much of the information available on the internet “reports” that the survey comes with a reminder that under Title 13 United States Code, failure to comply with the ACS, or providing false responses, will result in fines of $5,000 and even as high as $10,000. Though the Census Bureau does not list fines and penalties related non-compliance on the ACS webpage. Enough reputable news sources do report the existence of such penalties, along with potential incarceration for refusing to pay the fine’s that I think it is safe to say that the fines could technically be assessed. However, I have not been able to locate anyone who was actually fined for refusing. I suspect the Census Bureau includes the information to encourage survey participation.

The internet is also awash with stories of overzealous Census Bureau employees harassing citizens with late night door knocks and threatening phone calls. Some are on standard news sites and others are on sites with an agenda towards limited government but there are enough to suggest that some data collectors are stepping over the line. A common thread seems to be that when citizens push back, contact a reporter or complain to their congressional representative, the Census Bureau backs down. I should also point out that unless the person at your door is escorted by an actual law enforcement representative and a court order, you the citizen are under no legal obligation to speak to them.
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DougMacG
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« Reply #749 on: May 13, 2013, 05:26:59 PM »

Thanks for the replies.  Crafty, yours might have just been for all the extra questions on the regular Census?  On that, they do have the constitutional authority to know just the basics (that you answered), which would be how many people live there and I suppose enough extra information to verify accuracy and know they aren't double counting from you somewhere else.  This survey is 28 pages.  

What I think I have learned is that the penalty is 'up to $5000' (confirmed in GM post) and no one has ever been fined or jailed for not answering the American Community Survey because they don't want it tested in Court.  They will however keep coming back to harass, not take no for an answer for up to about 7 attempts.

I answered my 10 year Census the way Crafty suggested, race=other, etc.  My plan for this is to tell them I'll take the fine and the jail time, be the test case, and try to make it all back by writing a book.  

I also read that the House has voted to end this, and Rand Paul has introduced a measure in the Senate.

Repeal would be great, arguing, refusing, closing the door is okay, but I still would like to know what happened to my right of privacy.

From the website on Bigdog's post:

"To protect your privacy, the American Community Survey NEVER asks for:  your Social Security number, your personal information via email, money or donations, credit card information"

But that doesn't answer my concern.  Even without my name, and they already have that, my address ties this all to me and it sits in their database.  Similar databases of banks, credit card companies, Stratfor, the State Dept cables, etc are cracked every day.  Has anyone at Census ever heard of Wiki-leaks?  Even if there is zero risk of data lost or zero impact on me if there was a breach, aren't I entitled to as much privacy as a woman killing her fetus:  'No Ma'am, you can't have the procedure unless you tell us your ancestry, what time you leave your house, how many travel in your car, how many times you've been married, first mortgage, second mortgage, value of your house. property insurance, health insurance.'  For how long would the big government types put up with that?

I've lived here 27 years and what I paid is already a public record on the internet for all to see.  I haven't had it appraised and have never tried to sell it.  The house didn't change.  Why don't they tell me what the value of the dollar I bought it with is?

The ACS started in 2005 under a Republican President, House and Senate.   It may not be a Supreme Court case, but we aren't living in a country that is headed back toward original intent.

Next time they ask for my health insurance info, there will be a real fine for not answering!
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My brother has a concealed carry permit, and not necessarily a gun.  He called 911 during a neighborhood disturbance.  They needed to know where HE kept his gun before they came out to help.  How did they know that?  They marked his information from one agency onto other records.  I'm not much of a conspiracy nut, but this is information we give them just by complying with all these laws.
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