Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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50 Responses

  1. Cathy says:

    The USPS actually is logging and photographing all mail, including post cards. Law enforcement can get the data any time without a warrant. It generally involves them asking for data on a specific address or person for 30-120 days. This program existed in limited form for a long time, but was (surprise!) majorly beefed up, to include logging ALL mail, after 9/11.

    The links I posted to articles about this in the first comment got it sent to moderation, but it was picked up the NYT, among many many others.Report

    • Lyle in reply to Cathy says:

      However there is no requirement to put a return address on a letter. Thus the most the analysis can see is that someone mailed a letter from a general area, no actual address. Or if you wanted to you could put 1600 Pennsylvania Ave Wash Dc as the return address on all your letters.Report

  2. Michael Drew says:

    The likelihood of the subject matter of this case making it for Supreme Court review is high to the point of inevitability.

    Hmm. I’m skeptical on that in terms of this case. They well may grant cert. But when the D.C. Circuit reverses, I’d put slightly-better-than-even odds on six justices deciding they still think Smith is good law even under the new circumstances of ubiquity of telecommunications and functionally saying, ‘Yep, what they said’ about the Circuit ruling (even if the Circuit doesn’t reach the merits).

    The “subject matter” is a different question, though – how do you define that? I think they may hold their fire here, knowing that there isn’t nearly as clear a precedential answer on the backdoor monitoring of internet communications, which will very likely end up in courts, and on which there essentially will have to be new precedent laid down one way or another. Perhaps they’ll revisit the issues here in this case then, perhaps not, but I think, in the case that the Circuit reverses this opinion, the chances SCOTUS reviews that reversal will only be around 50/50.Report

  3. Kazzy says:

    Perhaps you addressed this and I missed it, but don’t ToS agreements and the relationship between the government and the telecom companies matter greatly. If Verizon’s ToS says, “You grant Verizon the right to share data on your calls with anyone of their choosing,” and Verizon than voluntarily gives over that information to the government, it wouldn’t seem to violate the letter of the law. Now, if the ToS agreements DON’T offer the companies this privilege OR the government did not receive the information voluntarily (and, letter of the law or not, I would put the government saying, “We’re going to get it one way or another so it’s better if you just offer it to us,” into the involuntary category), we’ve obviously got a whole ‘nother issue.

    Cases like this are why I argue that we need to right a wholly new Constitution. The founders could not and did not foresee cell phones. As such, trying to fit our world into their world view seems silly; they are functionally incompatible in a number of areas. Who cares what George Washington would have thought about cell phone data collection? We need to decide as a people about how we feel about it and make laws accordingly.Report

    • Burt Likko in reply to Kazzy says:

      No, I didn’t address ToS agreements, but I largely feel as you do: the government requiring cooperation is compulsory no matter how much “consent” is built in to the window dressing. And, as I did mention, while corporate data intrusion is a simmering issue, the government is a different sort of animal.Report

      • Kazzy in reply to Burt Likko says:

        If the government’s request was truly voluntary — e.g., “We’d really love for you to give us this data but realize we can’t make you. We *might* be able to get a warrant or court order, but that’s not guaranteed. Really, we’re just asking you to do us a favor.” — would that matter at all? On the one hand, it would seem that even asking constitutes a “search”. On the other hand, the government asks people to volunteer information all the time. For instance, if my friend tells me he is going to the store and the cops later ask me where my friend is, I presume if I voluntarily tell them he is at the store, this doesn’t qualify as a violation of his 4th Amendment rights… right?Report

      • Burt Likko in reply to Burt Likko says:

        “Hey,” said the man in the middling suit with a holstered pistol visible on his hip. “Could I get you to do me a… a favor? Just a little thing, y’know.” He leaned in closer, somehow underlining the strength of his shoulders with his posture. “Alls I need here is the records of every transaction youse guys do with every one of your customers. Every week.” He smiled and cocked his head just so. “I know you work hard to keep that information from your competitors, so I’d really appreciate it. … Really? Tha-a-a-anks! I owes you one, man.” He got up and walked away, with an exaggerated wink and point.Report

      • Mike Schilling in reply to Burt Likko says:

        “Ya got a nice business here. I’d hate to see ya get in trouble with the regulators.”Report

      • DavidTC in reply to Burt Likko says:

        Before anyone thinks that’s just a joke, I have one word for you: QwestReport

  4. Damon says:

    If I’d been the judge I wouldn’t have stayed my opinion. I’d have issued it and demanded action in 24 hours pending contempt of court citations even as the weasels scrambled to appeal.Report

  5. Kolohe says:

    . The qualitative data described there is functionally at the same data that is collected by the NSA in the contemporary program.

    Is it? I was under the impression that the modern meta-data is a lot ‘richer’ than what was state of the art in the disco era, exactly because the methods of transmission and the variety of formats and potential bandwidths make more data about data necessary. Plus, with different interwoven layers of metadata, where does ‘meta’ start? e.g. (1) a file was sent today between x and y (2) it has a photo included (3) this photo was taken the day before yesterday (4) at lat DD.MMN DD.MMW Where on the spectrum is the demarcation between ‘data’ and ‘metadata’? It’s not entirely clear to me.

    but it’s still phone numbers, times of day, durations, physical locations (em added)

    And that last one is a prime example, imo, of the qualitative difference between those phone calls made in leisure suits and the ones made now. Phones are now much more often associated with a person, rather than a location – and that phone moves with the person.

    But regardless of all that, ‘quantity has a quality all its own’ is pertinent too. An increase in technical capabilities that makes previously unfeasible practices feasible makes one need to go back a level at the underlying assumptions. For instance, In addition to your mail analogy, the ubiquity of cameras is another case of technology altering the paradigm. Putting a cop on every corner watching everything that happens on the street is unaffordable, so of course it’s not done. But were it affordable – like by substituting the flesh and blood (and pay and health care receiving) police officer with a robot – would it still be a good idea?Report

  6. J@m3z Aitch says:

    Thank you, Burt. A very nice summary. One quibble, though ( as always). Klayman doesn’t have stones so much as he’s a complete freaking lunatic who will file any court case he can dream up against liberals/Democrats/Obama. Here’s an example of his understanding of the law:

    That is the reason for Freedom Watch’s citizens’ grand juries, which are indicting and trying political felons like Obama as we speak. In this regard, a conviction is near in the case of the Obama for eligibility fraud.

    He hardly ever wins a case–this is a rare moment of triumph (shirt lived as it may be). He’s on the right side this time, but undoubtedly for the wrong reasons, and he’s not the person to argue this case up the federal chain.Report

    • Burt Likko in reply to J@m3z Aitch says:

      Really, Professor? You don’t think it takes stones to go in to court and argue things like Klayman does without an ounce of visible shame, remorse, or irony? Even lunatics fear Federal Rule of Civil Procedure 11 once they are cognizant of it.Report

      • J@m3z Aitch in reply to Burt Likko says:

        For your garden variety nutcase whose primary goal us to win their case, maybe, but not for Klayman. He wins even when he loses, because every loss is proof of the scope of the conspiracy. A loss reinforces his assurance that he’s on the right trail, reinforces his world-view, and provides revenue opportunities from right-wing sources. When a win is one type of win and a loss is another type of win, I’m not persuaded stones are at issue. Extremists don’t go beyond normal bounds out of bravery, most often, but out of an inability to parse the world as normal people do.

        Armchair psychologizing, sure, but I’ll stand by it.Report

      • Barry in reply to Burt Likko says:

        Yes, the day that it might be invoked. Orly Taitz (or whatever her name is) has filed perhaps a hundred lawsuits about Obama’s birth, and lost every single f-ing one of them. It took somewhere in the high double digits before she was first sanctioned.

        Burt, how many lawyers do you know who’ve filed basically the same lawsuit even 10 times?Report

      • Burt Likko in reply to Burt Likko says:

        @barry I’ve I filed the same lawsuit about 6000 times. It’s called an eviction.Report

      • Mike Schilling in reply to Burt Likko says:

        If I were Burt, I’d give up. Those people are not going anywhere.Report

      • Artor in reply to Burt Likko says:

        No, really. In Klayman’s case, he certainly has stones bigger than his brain, but that only makes them normal-sized, since his brain is about the size of a withered pea.

        He really is a raving lunatic, and I think the only reason he won this case is because he has filed (and lost) so many cases in his random, shotgun-litigation, that it was pure chance that he finally picked one where he was right. This is a case of the monkeys finishing a Shakespeare sonnet, after a million years of random key-bashing.Report

    • Michael Drew in reply to J@m3z Aitch says:

      This has to be one of the most salutary examples of the broken clock adage on record. That being said, as Burt’s first heading points out, it’s really irrelevant to the policy issues which plaintiff’s suit ended up being the one to get the most appellate review. That being said, maybe it’s not completely coincidental that the suit that did make its way into appellate-level review was the one filed by the guy with a lot of practice at doing it, even if that practice comes from obsessively filing frivolous, politically motivated lawsuits. Do it enough, and I imagine eventually you do master the procedural tricks.Report

      • J@m3z Aitch in reply to Michael Drew says:

        The problem is not whether Klayman knows the procedural tricks, but whether he can distinguish between good legal arguments and bad ones. His track record (and his birther arguments about natural born citizenship) don’t suggest he does. If he were to hire a competent lawyer to argue the case on appeal, that’d be a diferent story.Report

      • Wait, was Klayman pro se at the district court level? (If so, that makes me very uneasy about the upcoming appeals.)Report

      • J@m3z Aitch in reply to Michael Drew says:


        Unfortunately, yes.Report

      • LeeEsq in reply to Michael Drew says:

        In a best case scenario, he hires competent lawyers for the appeal or lets the ACLU come in and take over the case. In a next to best case, Klayman accepts coaching on the art of writting and arguing an appeal.Report

      • J@m3z Aitch in reply to Michael Drew says:

        The ACLU is part of the conspiracy!Report

      • Mike Schilling in reply to Michael Drew says:

        Wait, was Klayman pro se at the district court level?

        At least it wasn’t in verse.Report

      • Michael Drew in reply to Michael Drew says:

        I wasn’t saying it means he’s an effective advocate. Just what I said: that the fact that his was the case to proceed farthest earliest may not be coincidental to the fact that he has so much experience filing and pursuing public-policy-related lawsuits.Report

      • Lee,

        In a next to next-to-best-case scenario, the ACLU and EFF and other groups at least file amicus briefs. (And hopefully the court of appeals would actually pay attention to the amicus briefs, which I am not convinced is always the case.)Report

      • J@m3z Aitch in reply to Michael Drew says:


        I’d suggest that “his was the case to proceed farthest earliest” was not coincident to his experience (because that suggests the ACLU, EFF, and other legal-system focused interest groups somehow lack his experience), but to the fact that he so habitually files lawsuits about everything that he’s nearly always there first (often with the leastest instead of the mostest, but then it’s easier to file first if you don’t waste time writing a quality filing).Report

      • Michael Drew in reply to Michael Drew says:

        Well, if a procedural trick that gets you furthest earliest is filing first rather than developing quality argument, and it takes experience to learn that, then it may not be coincidental to his experience that his suit got furthest earliest. Though perhaps it is – I’ve said “may” all along for a reason. Keeping in mind that, as you say, the aims aren’t the same between himself and the ACLU, where his is to be the case that makes the biggest, earliest headlines on the issue, while theirs is to pursue the most effective case.

        But for that matter, it could be entirely coincidental, having to do not with when the cases were filed, but with administrative issues in one court in relation to the other. Like I said: “maybe.”Report

      • J@m3z Aitch in reply to Michael Drew says:

        , if a procedural trick that gets you furthest earliest is filing first rather than developing quality argument,

        Once! I cannot overstate how rare it is for Klayman to get a ruling in his favor. Striking gold once in dozens of efforts does not indicate experience or knowledge; it indicates that even a blind pig can find an acorn once in a while.Report

      • Michael Drew in reply to Michael Drew says:

        It doesn’t really indicate anything that he pursues mostly losing issues other than that he chooses interests to pursue that don’t have much hope of being vindicated in court, at least not necessarily. Maybe he did well to get as much consideration in those cases as he did, producing negative results with uncommon rapidity. Then, as soon as his interests happen to align him with a (to some degree) winning issue, he not only gets a favorable result, but gets it quickly! (Maybe!)

        Again, this is understanding that his aim is just to get that first burst of traction in courts, whereas the ACLU’s is to craft cases that have the best chance possible of winning through all levels of review.Report

      • Kolohe in reply to Michael Drew says:

        @leeesq & @pub-editor both the ACLU and EFF have their own cases https://twitter.com/trevortimm/status/412697219016323072 , my layman understanding of the process is thatalmost always, all these similar cases get wrapped together when it gets to the Supreme Court (if not before).Report

  7. Mike Schilling says:

    Klayman’s rights were violated cavalierly.Report

  8. Pub Editor says:

    Excellent post, Mr. Likko.

    The disturbing part of today’s opinion is the ease with which Judge Leon sidesteps the Smith v. Maryland case.

    As you imply, this may be the weak link in Judge Leon’s opinion. If so, perhaps a DC Circuit panel that wanted to uphold the ruling could do so on alternate grounds. Hopefully appellate counsel for the plaintiffs will be alert to this possibility and include in their briefing some arguments pointing to alternate reasoning for overcoming Smith.Report

  9. Barry says:

    Burt: “The government has been put on the legal defensive. The government should be on the defensive. The government should be in the position of needing to justify its actions to a skeptical citizenry and searching questions from the bench. People ought to be able to point at something the government has done and point out how it infringes upon their basic rights, and to have those rights vindicated when the government’s explanations for its actions are found wanting.”

    I love this. The joke is that this is the root of the fourth amendment, both in ‘original intent’ (otherwise known as Scalia’s toilet paper) and in literal meaning.Report

    • Mad Rocket Scientist in reply to Barry says:

      It always amazes me how little the judiciary seems interested in protecting the rights of citizens from government. So much so that opinions like this, or from the likes of Judge Kozinski, always catch my eye (because they are so rare).Report

      • Barry in reply to Mad Rocket Scientist says:

        “It always amazes me how little the judiciary seems interested in protecting the rights of citizens from government. So much so that opinions like this, or from the likes of Judge Kozinski, always catch my eye (because they are so rare).”

        I think that most of the reputation of the Judicary as a defender of rights and freedom is wrong, and much of the less is based certain times, places and decisions in the post-WWII era.Report

  10. Rod says:

    The question that interests me in all this concerns ownership. Is information about you in any way your data or does it belong to the Telco? Example (ripped from the headlines): Take a nudie of your girlfriend and the image legally belongs to you. If she takes a selfie and sends it to you, again, it’s your property. But AFAICT from what I’ve read lately, you need a model release to distribute that in the first case but not in the second. I guess the point I’m wandering toward is that it’s easy to get worked up into a moral outrage, but you apparently need more than a feeling of having your privacy violated to actually have your rights infringed.

    Frankly, I’m unclear on why Verizon even collects that data anymore. They don’t bill me based on it. My plan is unlimited calling with free long distance and unlimited texts. The only variable is GB of data usage.Report

    • Cathy in reply to Rod says:

      Actually, if the girlfriend takes the picture, she’s the one with the copyright on it (if anyone is; not sure if photos need a copyright notice on them); your copy is authorized, if she sent it you, but it doesn’t give you distribution rights.

      As far as ownership goes, in the privacy context, though, it’s beside the point. If you’re holding a bag, and a policeman comes up and rips it out of your hands and rummages through it, that’s a government search of your person, even if the bag isn’t actually yours (e.g., you were holding it for a friend). They either need to get a warrant to search YOU, which includes the clothes and bags you are wearing at the time, or a warrant to search your friend’s bag, wherever it may be.

      Now, whether you own something or not is probably relevant to whether you have an expectation of privacy in that thing, but it’s not a determinitive question by itself. In the above example, you don’t own that bag, but you have a reasonable expectation of privacy in its contents anyway, under the circumstances, because you were holding it and a bag naturally conceals its contents.

      For the Telco stuff, the Smith question re: expectations is whether you already disclosed it to someone else, but if we’re not going to care about Smith, then it seems like “what information about me does this data disclose, and am I intending for it to be public?” Those questions, and many others like them, can be answered without recourse to ownership.Report

  11. Rod says:

    And BTW, sincere thanks for the latest installment of Law for Dummies. I find these fascinating.Report

  12. Philip H says:

    Excellent post. As I alluded to above, this isn’t the only case out there on this issue, and several of the others were decided the opposite way. I’d love to get your take on that part of the issue, as there is tremendous punditry suggesting this fact is the SCOTUS gateway.

    I’d also be interested in why a Republican judge, appointed by a President who was supposedly “anti-activist judges” would, in fact commit what seems like an act of judicial activism.

    Volley to you @burt-likkoReport

  13. Stephen says:

    “Who owns that information anyway? Smith said that the phone company owns it, not the user.”

    Actually, it gets worse. At least if you rely on the Smith case. Ask your this variant of your own question: Who own the money you deposit in a bank?

    That money is not kept as physical dollars and cents but as 0’s and 1’s in some computer file. More specifically, it is kept as a record in a bank’s computerised database.

    In other words, it is stored as METADATA.

    That being the case, (under the Smith case) you presumably no more own that deposited money than a Verizon customer owns their relevant metadata in Verizon’s phone customer database. Which presumably means when you go and deposit money in a bank what you are actually doing is DONATING that money them, money which the bank graciously agrees to hand back to you when you afterwards come along with a withdrawal claim.

    Which is all very well but it means that the one with the US constitutional protection, both 4th amendment and 5th (due process and fair compensation) amendment, is not you but the bank!

    On the other hand, if instead of putting the money in a bank you had stuffed it into your mattress in your house, not only would the government need a warrant under the 4th amendment before they could search your house for it, if that money was rightfully yours you would be the one entitled to the 5th amendment’s right to due process and fair compensation if the government tried to seize it.Report