I recorded it yesterday for the Legal Talk Network, and it runs about 30 minutes; you can listen here. We start off by discussing Judge Kozinski’s stirring dissent from denial of rehearing en banc in United States v. Pineda-Moreno, which has received a lot of press attention. Among the questions discussed: Who lives in gated communities?
Gary Myers says:
Could Prof. Kerr offer his views on Judge Easterbrook’s opinion today in U.S. v. Szymuskiewicz () that applies the criminal “interception” sanction in the older Wiretap Act to all packet switched communications, including rerouted “forwarded” e-mail messages?
September 9, 2010, 4:40 pmOrin Kerr says:
Gary,
I’m in the middle of writing a long post about it. It should be up late tonight or maybe tomorrow.
The short version: Right result in that case, but with lots of discussion that is way off and is going to create lots of weird consequences Easterbrook never imagined (because he’s thinking about the Wiretap Act only as a criminal statute, rather than primarily as a code of criminal procedure).
September 9, 2010, 5:03 pmDebrah says:
Interesting program.
Especially with regard to some of the background information.
A most useful detail for me was to discover that a GPS surveillance device is about the size of a bar of soap!
The consistent obduracy some exhibit on the surveillance issue is understandable; however, unless you’re engaging in illegal activity, the information collected wouldn’t surface for public consumption or even remain on the law enforcement radar screen.
I’m as privacy-conscious and individualistic as anyone out there, but if these measures are taken in the expressed pursuit of bringing hardened criminals to justice, then I think I’ll pass on a kind of hostile kabuki dance many performed nonstop in response to the Patriot Act.
Every time you turn on the computer and visit your daily blogs and websites, there will be a clear record of your activity.
Sure, sure……I know…….some engage in the intricate gyrations of proxies, Default Browser 0, HTTrack, etc…..etc…..
…….so that the true IP address and identity will be masked.
However, if someone really wants to track your activity, no amount of clever internet masking will suffice.
In short, if you’re breathing and if you engage in the activities of a life, you leave a trail.
Life for the average citizen, caeteris paribus, is not diminished by use of surveillance measures in pursuit of serious criminals.
In this program, Orin has attitude to back up the expertise which is important when showing up for such discussions.
Curious that Kozinski didn’t show up as well.
This somehow diminishes his veracity in my view.
September 9, 2010, 5:41 pmDylan Williams says:
I say we covertly enter Judge O’Scannlain’s private property at 3am, surreptitiously install a tracking device on his vehicle, document his whereabouts 24hrs/day over a period of time, publish the data, and see if he might have any objections.
September 9, 2010, 6:01 pmOrin Kerr says:
Dylan,
If the test for what is unconstitutional is what a person might find objectionable if personally done to them, then that might be relevant. As it isn’t, though, I’m not sure where you’re going with your suggestion.
September 9, 2010, 6:13 pmGLAdetariba says:
Perhaps, he is suggesting to do the same thing some people rightly proposed about Souter´s countryside property. after Kelo. Use eminent domain against him. In this case since it involve criminal action you can do it In the Kaldor Hich way
September 9, 2010, 6:56 pmMichael Drake says:
“If the test for what is unconstitutional is what a person might find objectionable if personally done to them, then that might be relevant. As it isn’t, though, I’m not sure where you’re going with your suggestion.”
It is indeed a mystery just how a judge’s personal expectation of privacy could bear on this matter.
September 9, 2010, 7:36 pmORID says:
Professor Kerr,
You are certainly free to comment as you like, however I posted a few responses to your previous 4th amendment cases and didn’t get any reaction, which marginalizes attempting to have a discussion.
I find it somewhat strange that this podcast has sponsors (well Suntrust?).
September 10, 2010, 2:49 amORID says:
Can I self-declare my curtilage? I live in an apartment complex, I don’t have a driveway. I park in a car park. Is the car park curtilage? Can I cover up my car with a tarp and say “this is my private property?” Why not? There are signs that declare this as “private property” and say “violators will be prosecuted to the full extent of the law”. Is that “open field”?
I see, you discussed this doctrine around 14:50 and the current state of the law.
What committee is having the hearings (Senate judiciary?).
Can I put the GPS device on another car if I’m an innocent person?
I see why your position is so unpopular at least with myself. The state of the law itself is unpopular. We haven’t had the Supreme Court weigh in on the use of cell-site GPS information?
BTW, the comment previously was whether you agreed with the clarity provided by the concurring opinion in the 2703(d) case you blogged about 2 days ago?
September 10, 2010, 4:00 amStephen Lathrop says:
So true. So true. It’s just the exceptional non-criminal citizen, the one with the misfortune to be singled out for persecution, who pays the price. Sometimes politics gets into it.
But I suppose that ignores “caeteris paribus.” I’ll have to remember that trick if it ever suits me to back some pick-a-victim legal ploy that doesn’t massively affect everyone. “Caeteris paribus,” got it!
September 10, 2010, 8:00 amOrin Kerr says:
ORID,
I hope to respond to your comments about the recent Third Circuit case, but I have been busy with the Jewish New Year and other projects that I’m already behind on. I hope to post more on that case soon, though, as the issues are really interesting and there is a lot to talk about. I’m not sure if I will, though: Right now is a very busy time, unfortunately.
As for curtilage, no you can’t self-declare it. Just google United States v. Dunn to see how it works.
September 10, 2010, 10:34 amDebrah says:
That’s a bit melodramatic.
Careful. You’re moving in on my schtick.
September 10, 2010, 10:53 amORID says:
I’m glad I heard this; you don’t sound like an advocate for the current state of affairs, rather a Professor explaining how it is and how did we get here… which apparently is through English Common law. I like how the Court embraces some part of English Common law and then tries to throw away other parts (*ahem*Bivens*ahem*).
I hate the fact that my curtilage is limited being in an apartment. Then again, I have no intention of breaking any law… but that shouldn’t really be of any relevance. In some respect I do agree with judge K; why should folks be able to purchase more curtilage, therefore more 4th amendment protection? (I suppose it’s like rich people able to buy more free speech?).
September 11, 2010, 3:33 am