Wait, I hear it again
Don’t turn on the lights until we
Hear the way it ends
from Peruvian Skies by Dream Theater
During the course of 2009 I wrote about a number of issues that have had recent developments. So by way of winding down 2009 [yeah I’m glad it’s over too] here are updates if not possible conclusions to some of these long running sagas.
In posts entitled Does encryption imply expectation of privacy? and No privilege for you! the basic issue involved was reasonable expectation of privacy or rather legal confusion regarding same when applied to digital communication. According to this article in the Washington post the U.S. Supreme Court will be ruling on the issue of expectation of privacy in the spring of 2010.
The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.
A federal appeals court in California decided that a police officer in the city of Ontario had a right to privacy regarding the texts he sent on his department-issued pager, even though his chief discovered that some of them were sexually explicit messages to his girlfriend. That court said the chief’s decision to read the messages without a suspicion of wrongdoing on the part of the officer violated Fourth Amendment protections against unreasonable searches.
Most employers routinely tell their workers that they have no expectation of privacy when it comes to e-mail and other communications that involve company equipment, and the city of Ontario is no different. It says it “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.”
But the police officer in the case, said the department sent a different message when it handed out pagers to SWAT team members. The department said that the devices were limited to 25,000 characters each month, but that officers also using them for personal purposes could pay for any overage charges.
When the police chief wondered whether the devices were being used mostly for personal messages, the company that provided the texting service, Arch Wireless, turned over transcripts. They showed that a large portion of [the officer’s] messages were personal and many of them were sexually explicit. According to court documents, a review of one month’s use showed that 57 of 450 messages were business related.
A lawyer who often represents employers in workplace issues, said the issue is “one of increasing importance to employers.” Though the case before the court involves government employees, case law in the private workplace often evolves from such decisions.
In the world of laptops, cellphones and BlackBerrys, the line between business and personal communications is often blurred and that employers are tolerant “within the realm of reason.”
But often they are under legal obligation to monitor computer use. And when employers monitor the computer use of their workers, it is often because of complaints from co-workers.
The case, Ontario v. Quon, will be heard in the spring.
While this case does not explicitly address either encryption or privileged communication it does serve to illustrate that this is far from a done deal. And the Supreme court ruling will only be one small step towards clarifying the issue. So I’m guessing we can expect lots more on this in the coming years.
In a series of posts about ID Theft, Privacy, Fear and Loathing in Colorado [also in this post and this post] I discussed “Operation Numbers Game”. Here’s a quick recap of the controversial investigation.
“Operation Numbers Game” began after a Texas man told Greeley [Colorado] authorities someone there was using his identity. The suspect in that case alerted law enforcement to the firm that prepared his taxes. Investigators obtained a search warrant [and] seized the returns last year from a tax preparation firm that catered to Latinos in Greeley, where Hispanics make up about a third of the population.
A District Court judge halted the investigation in April. He ruled Weld County authorities violated people’s privacy rights and had no probable cause to inspect the tax returns, which were used to file charges of criminal impersonation and identity theft against more than 70 people.
Weld County appealed the decision.
Weld County District Attorney Ken Buck, a Republican U.S. Senate candidate who advocates stricter immigration laws, has maintained the investigation was about identity theft, not illegal immigration.
Well this little fishing expedition may actually be over. As reported by the Denver channel, the Colorado Supreme Court has ruled against Weld County.
The Colorado Supreme Court says Weld County authorities violated privacy rights of immigrants when sheriff’s deputies seized thousands of tax returns to investigate them for identity theft.
The Court’s Monday ruling affirmed a decision by a Weld County District judge who suppressed evidence against one of the defendants. That judge said authorities had no probable cause to search the man’s tax returns and that the documents are confidential.
The Colorado Immigrant Rights Coalition praised the Supreme Court ruling, saying Weld County’s attempt to enforce federal immigration law was “wrong-headed, costly and did great damage to the community.” The Coalition also said the cases “demonstrates why we need solutions to our broken immigration system.”
“Today’s ruling confirms Operations Number Games to have been an egregious abuse of power by Weld County officials,” the Coalition said in a prepared statement. “Paying taxes is not a crime and should not be made to seem like one. Rather, it is what the U.S. government asks of its residents. Those targeted had their privacy rights violated. The ruling goes to show that the Constitution protects the basic rights of all U.S. residents, regardless of suspected immigration status.”
No word yet on how this ruling will effect Weld County District Attorney Ken Buck’s senate bid and I’m smart enough to not hazard guesses involving politics.
In a series of entries that are shaping up to be the most popular of 2009 I wrote about Colorado Weirdness and the subsequent followup Back to normal in Colorado wherein the primary weirdness was the “balloon boy” incident. This just kept getting stranger as it turned out that the whole thing was a hoax perpetrated with the idea of getting a reality TV show. Well, according to the Denver Post this saga may finally have run it’s course. For now.
Richard and Mayumi Heene, the Fort Collins couple who briefly duped law enforcement and the television-watching world this fall by claiming their son was adrift in a home-made balloon, were sentenced to jail time today for perpetrating the publicity stunt.
Richard Heene, who last month pleaded guilty to a felony charge of attempting to influence a public servant and who took blame today as the brains of the hoax, was sentenced to 90 days in jail. He will have to serve 30 days of the sentence full-time in the Larimer County jail, with the remaining 60 days served on work-release. He must also serve four years on probation.
Mayumi Heene, who helped hatch the scheme and who pleaded guilty to a misdemeanor charge of false reporting, was sentenced to four years probation and 20 days of jail, to be served through a program that allows her to perform jail-supervised community service a couple days a week and return home at night.
The Heenes must also pay a still-to-be-determined amount of restitution, a figure a prosecutor said today could be $47,000 or more. Richard Heene’s lawyer said he intends to challenge that figure.
“In summary,” [Larimer County Court Judge Stephen] Schapanski said in imposing Richard Heene’s sentence, “what this case is about is deception, exploitation — exploitation of the children of the Heenes, exploitation of the media and exploitation of people’s emotions — and money.”
Asked after the hearings whether the Heenes have now given up the pursuit of television notoriety, [Richard Heene’s attorney David] Lane was ambiguous.
“I don’t know if they’re done with reality TV,” he said. “Is reality TV done with them?”
And finally there’s this pair of posts about the medical marijuana gold rush in Colorado, Once I was a caregiver and didn’t even know it and Caregivers in Colorado: the saga continues. This has well and truly hit the big time with international coverage by CNN. Take this story by Jim Spellman for instance.
Driving down Broadway, it’s easy to forget you are in the United States. Amid the antique stores, bars and fast-food joints occupying nearly every block are some of Denver’s newest businesses: medical marijuana dispensaries.
The locals call this thoroughfare “Broadsterdam.” As in Amsterdam, Netherlands, these businesses openly advertise their wares, often with signs depicting large green marijuana leaves.
“The American capitalist system is working,” said attorney and medical marijuana advocate Rob Corry.
It’s a matter of supply and demand.
“The demand has always been there,” he said, “and the demand is growing daily because more doctors are willing to do this, and now businesses, entrepreneurs, mom-and-pop shops are cropping up to create a supply.”
Colorado voters legalized medical marijuana in 2000. For years, patients could get small amounts from “caregivers,” the term for growers and dispensers who could each supply only five patients. In 2007, a court lifted that limit and business boomed.
Between 2000 and 2008, the state issued about 2,000 medical marijuana cards to patients. That number has grown to more than 60,000 in the last year.
State Sen. Chris Romer, a Democrat whose south Denver district includes Broadsterdam, said the state receives more than 900 applications a day.
“It’s growing so fast, it’s like the old Wild West,” Romer said. “This reminds me of 1899 in Cripple Creek, Colorado, when somebody struck gold. Every 49er in the country is making it for Denver to open a medical marijuana dispensary.”
Wild West indeed. Everywhere in Colorado counties and municipalities are rushing to declare moratoriums on new medical marijuana dispensaries until somebody figures out how to regulate them. “Why is that a problem?”, you ask. Well let me give you some examples. I’ve already mentioned that in the People’s Republic of Boulder there are now twice as many reefer shops [err… dispensaries] as coffee shops. While this may may not be particularly surprising for Boulder, how about the town of Windsor, Colorado (population 18000) where there are more medical marijuana dispensaries than coffee shops, gas stations, grocery stores and liquor stores combined. At this point I’m thinking that maybe the Federal government should wake up, smell the reefer, legalize pot and tax the heck out of it. Everybody wins. And in this economy just think of all the jobs for caregivers that will be created. That’s right, just suck it up and torch that spliff (or vice versa). You know you want to.
Recently Chris Webster, a law student at the University of Maryland Baltimore School of Law, started this email thread which I will present here with minimal editing in hopes that some experts or interested parties among you, dear readers, can chime in. Just so everyone is clear, a disclaimer: I’m fascinated by e-discovery and legal issues surrounding security and privacy and blog about these subjects fairly often. I’m not, however, an expert in this area. And I’m certainly not a lawyer. Having said that, let’s begin.
Security For All 