Fourth Amendment Rights/Cash for Clunkers

A reader commented on the previous post about the Cash for Clunkers a Gov’t Worm Hole. The point was worth researching and discussing, so here it is.

The comment stated that Beck was off base with his conclusions about the agreement that must be provided before a “Cash for Clunkers” participant could continue with the transaction online at the cars.gov web site.

Comment:

“These disclaimers on gov’t computers are necessary due to the Wiretapping Act. It is illegal to monitor the activities of a user without their consent. To do the necessary monitoring (if your site is defaced you want to try to figure out who did it, y’know?) you must allow everyone an opportunity to leave without entering. That’s all. We’ve had a similar disclaimer here for 15 years.”

Everyone can agree that any computer must be protected from hostile activity and employ a program to identify the perpetrator. Disclaimers must make consumers aware and give them the opportunity to leave the web site without giving up their Fourth Amendment Rights. No problem here.

The cars.gov web site goes far beyond what is necessary in the following paragraph, which consumers are obliged to agree to if they participate in the Cash for Clunkers program:

“This application provides access to the DoT CARS system. When logged on to the CARS system, your computer is considered a Federal computer system and is the property of the U.S. Government. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized CARS, DoT, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign. ”

This agreement usurps your Fourth Amendment Right and waives your rights under the Wiretap Act, Privacy Act, etc.

See

http://ilt.eff.org/index.php/Privacy:_Statutory_Protections

(portions)

Privacy: Statutory Protections
From Internet Law Treatise

With the passage of the USA PATRIOT Act, the Homeland Security Act and other laws focused on national security, Congress has been active in changing the legal landscape for access to real-time and stored communications. Despite these amendments, detailed below, the legal regime for obtaining wiretaps and stored communications remains ambiguous.



Privacy: Searching and Seizing Computers
From Internet Law Treatise

Reasonable Expectation of Privacy

Accessing information stored in a computer ordinarily will implicate the owner’s reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer); United States v. Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation of privacy in data stored in a pager); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995) (same); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993) (same); United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) (”[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.”). See also United States v. Long, 64 M.J. 57 (CAAF 2006) (finding REOP in emails defendant sent from her office computer and in emails stored on government server); Quon v. Arch Wireless, 445 F.Supp.2d 1116 (C.D. Cal. 2006) (gov’t employee had REOP in text messages sent through his city-owned pagers).

The Tenth Circuit has cautioned that “[b]ecause computers can hold so much information touching on many different areas of a person’s life, there is greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001). But see United States v. Gorshkov, 2001 WL 1024026, at *2 (W.D. Wash. May 23, 2001) (holding that defendant did not have a reasonable expectation of privacy in use of a private computer network when undercover federal agents looked over his shoulder, when he did not own the computer he used, and when he knew that the system administrator could monitor his activities).

In the offline world, the U.S. Supreme Court has recognized legitimate privacy interest in confidential letters. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1657 (1984) (“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy.”). See also Ortega v. O’Connor, 146 F.3d 1149, 1163 (9th Cir. 1998) (under circumstances, employee had legitimate expectation of privacy from employer).

Federal Constitution

The contents of telephone communications are fully protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 353-354 (1967). The Government must satisfy stringent procedural requirements, discussed below, before it can acquire the contents of communications. Berger v. New York, 388 U.S. 41, 63-64 (1967) (“[I]t is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.”).

The Privacy Act

The Privacy Act regulates the “‘collection, maintenance, use, and dissemination of information’” about individuals by federal agencies. Doe v. Chao, 540 U.S. 614, 618 (2004) (quoting Privacy Act of 1974 § 2(a)(5), 88 Stat. 1896). It “authorizes civil suits by individuals . . . whose Privacy Act rights are infringed,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1123 (D.C. Cir. 2007), and provides for criminal penalties against federal officials who willfully disclose a record in violation of the Act, 5 U.S.C. § 552a(i)(1).

State Statutes

Title III does not preempt state statutes that are more protective of privacy. “Congress intended that the states be allowed to enact more restrictive laws designed to protect the right of privacy.” People v. Conklin. 12 Cal.3d 259, 271 (1974); see also Roberts v. Americable Intern. Inc., 883 F.Supp. 499, 503, fn. 6 (E.D.Cal. 1995); United States v. Curreri, 388 F.Supp. 607, 613 (D.Md. 1974); Bishop v. State, 526 S.E.2d 917, 920 (Ga.Ct.App. 1999) ; People v. Pascarella, 415 N.E.2d 1285, 1287 (Ill.App.Ct. 1981).

The Wiretap Act, the U.S. Patriot Act, the Homeland Security Act, were all dealing with wiretapping and eavesdropping needed to combat terrorism and to facilitate criminal investigations. They required reasonable suspicion and warrants from judges.

Trading a clunker in for a new car hardly designates citizens as criminals or terrorists and does not generate reasonable suspicion of crime or terrorism. Our Fourth Amendment Rights should not be compromised or stolen.

I don’t believe Beck was off-base in his assumptions. Citizens should refuse to accept this disclaimer and realize that buying a car on the taxpayers’ dime isn’t worth forfeiting Fourth Amendment Rights. Our founding fathers fought to gain our freedoms and we should never throw them away, especially for a car that will only last a few years. Freedoms last forever, unless you throw them out with the clunkers.

The Fourth Amendment to the U.S. Constitution in the Bill of Rights

Search and Seizure

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.

http://www.gpoaccess.gov/constitution/html/amdt4.html