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Low-level federal judges balking at law enforcement requests for electronic evidence

Low-level federal judges balking at law enforcement requests for electronic evidence:

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

Broad based access to telecommunications information can be extremely revealing: law enforcement know this, civil advocates (and defence attorneys) know this, and (increasingly) justices know this. And as justices in particular become more cognizant of just what law enforcement agencies are accessing, and of authorities’ decisions to not target their searches but instead collect (and retain) the entirety of people’s personal information, we’ll see more and more pushback against authorities’ overreaches.

Politics and justice tend to move slowly, often to the point where they ‘lag’ a decade or more behind technology and social norms. However, even these conservative systems tend to eventually correct themselves. As federal American judges ‘balk’ at over collection we’ll see these issues of evidence collection rise through the courts until, hopefully, a good ruling is issued by the Supreme Court of the United States. And then we’ll move onto the next overreach that authorities identify and begin exploiting…

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That smartphones allow us to imprison twice the number of people at half the cost is the kind of cutting-edge innovation that only management consultants and tech entrepreneurs would be excited about. Such breakthroughs would be worth celebrating if they didn’t distract us from the more radical (and simpler) solution to the problem of overcrowded prisons: incarcerating fewer people.

Smart technologies are not just disruptive; they can also preserve the status quo. Revolutionary in theory, they are often reactionary in practice.

Smart technology, thanks to its ubiquity and affordability, offers us the cheapest — and trendiest — fix. But the gleaming aura of disruption-talk that often accompanies such fixes masks their underlying conservatism. Technological innovation does not guarantee political innovation; at times, it might even impede it. The task ahead is to prevent our imagination from being incarcerated by smart technologies. Or should we settle for gamifying ourselves to death?

* Evgeny Morozov, “Imprisoned by Innovation
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Something like missionary reductionism has happened to the internet with the rise of web 2.0. The strangeness is being leached away by the mush-making process. Individual web pages as they first appeared in the early 1990s had the flavor of personhood. MySpace preserved some of that flavor, though a process of regularized formatting had begun. Facebook went further, organizing people into multiple-choice identities, while Wikipedia seeks to erase point of view entirely.

If a church or government were doing these things, it would feel authoritarian, but when technologists are the culprits, we seem hip, fresh, and inventive. People will accept ideas presented in technological form that would be abhorrent in any other form.

Jaron Lanier, You Are Not A Gadget